Israel has an unusual immigration policy that has been the subject of debate since the country’s foundation.  But, what is truly disturbing about this debate is that refugees are being drawn into it.

According to the 1951 UN Refugee Convention, a refugee is a person who, “owing to a well-founded fear of being persecuted…is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.”[1]  An immigrant, conversely, is protected (to at least a minimal extent) by his or her country of origin and relocates voluntarily.  In other words, refugees severely risk their lives if they return home; immigrants do not.

I do not aim to suggest that all foreigners or even all Africans in Israel are refugees.  But, 85% of Africans in Israel are either Eritrean or Sudanese.  Outside of Israel, 84% of Eritreans and 64% of Sudanese nationals are recognized as refugees and protected from deportation.[2]  Thus, from the perspective of probability alone, it is highly likely that many Africans in Israel would incontrovertibly be recognized as refugees elsewhere.  I have also heard first-hand, from working at a Tel Aviv NGO, the stories of dozens of Africans who escaped persecution and came to Israel, because they saw it as the only country accessible by foot where they could be safe.  But, Interior Minister Eli Yishai is doing all he can do—and quite a bit that he is not authorized to do—to ensure that Africans who are escaping persecution have no safe haven to which they can run.[3]

Minister Yishai has proposed a policy to detain indefinitely all Eritrean and Sudanese nationals who will not return to their native countries.[4]  This proposal is criticized by many as an inhuman immigration policy.  Debate over the humanity of such a policy is worthwhile, and we can wax philosophically over it endlessly.  But, the bottom line is that Yishai’s plan has nothing to do with immigration, and it is not legal.  It is not legal in Israel according to Article 13 F (4) of the Entry to Israel Law, which states that an illegal resident cannot be detained for more than 60 days.  It is not legal according to the UN Refugee Convention, which was ratified by 144 countries, including Israel.  And, it is not legal in over 140 other countries.

Still, the argument of legal responsibility does not convince everyone.  Some may say that legal commitments must be sacrificed when grave safety concerns arise.  However, police reports suggest that safety should not be a grave concern when it comes to foreigners in Israel.  Police data, presented in a meeting held by the Knesset Committee on Foreign Workers on March 19th, indicated that the crime rate among foreigners in Israel was 2.24 percent in 2011.  While all of the data for 2011 has not been yet published, the police reported that the crime rate among the general population in Israel was 4.99 percent in 2010.[5]  Thus, a native Israeli is almost twice as likely to commit a crime as a foreigner.

Every country has immigration issues that it must settle.  Israelis are justifiably anxious about the impact of immigration on their society.  But, how the government chooses to deal with immigration should not reflect on how it chooses to deal with refugees.  The Israeli government cannot legally detain all Sudanese and Eritrean nationals without first identifying who is an immigrant and who is a refugee.