1. Introduction
Drawing from fieldwork in Israel conducted with Eritrean asylum-seeking women and key informants in Tel Aviv and Haifa (2018–2019), this interdisciplinary qualitative research article empirically and theoretically examines the intersectional impact of tensions arising from the Israeli legal framework. Specifically, it looks at the effect of section 4 of the Law on Prevention of Infiltration and Ensuring the Departure of Infiltrators from Israel,Footnote 1 also known simply as the Deposit Law. This law required undocumented foreign workers (including Eritrean asylum seekers) to deposit 20 per cent of their wages, and employers to deposit 16 per cent of the salary, into a dedicated account. Thus, a total of 36 per cent of a person's wages had to be paid into a deposit fund (participant IL3). This sum could be returned to the workers only on their departure from Israel. Thus, the law aimed to encourage the ‘voluntary’ departure of asylum seekers from Israel. This added to the problems that all asylum seekers and refugees, particularly from specific places, already experience in Israel, including institutional racism and structural violence.Footnote 2
That law, however, was struck down on 24 April 2020, when the Israeli Supreme Court, sitting as the High Court of Justice in the landmark decision Gersagher v The Knesset, held section 4 (the Deposit Law) to be unconstitutional and declared it void.Footnote 3
Using this Israeli Supreme Court decision as a point of departure, this study examines the following questions:
1. To what extent do state-created categories foster unlawful multilayered and multilevel forms of vulnerability and discrimination?
2. What is the ongoing intersectional impact of the Prevention of Infiltration Law and how is it related to sexual and gender-based violence (SGBV)?
3. How can state-created intersecting vulnerabilities be diagnosed?
To address these questions, the study examines state-created categories – in particular, the legal category of ‘infiltratorFootnote 4 – to assess and determine the intersectional impact of the law.
To identify and examine the impact of different state-created categories and the effects that laws can have, particularly on vulnerable groups such as asylum-seeking women, the interdisciplinary qualitative analysis in the article draws from empirical data collected by the authors in Israel. The empirical aspect of this is an important element of the work because, as stressed in the work of Ghezelbash and Dorostkar, refugee legal studies should be more empirical in nature. They state in this regard:Footnote 5
We acknowledge the challenges refugee law scholars face when undertaking empirical research. There is the absence of a strong tradition of empirical research in this field, and legal scholars generally lack training and experience in carrying out such research.
In this regard, this study aims to ensure that other interdisciplinary, empirical, doctrinal, normative and theoretical research on these topics is strengthened and validated, or not, by this empirical study. The study also aims to understand the implications of the law and the role it played, and in fact continues to play, to properly understand the way in which the effective and efficient protection of refugees can be implemented and the obstacles it faces in this respect.Footnote 6
Therefore, this article, using a variety of materials from different disciplines, focuses on the intersectional impact of the law in order to understand the (in)visibility of multiple life experiences that refugees and asylum seekers suffer, which encompass different forms and levels of intersecting discrimination. The goal of the work is to ensure a greater understanding about the intertwined nature and connection of various state-created categories and the gendered and racialised impacts of such legal classifications. These interconnections reflect the relation between the state-created categories and the inevitability of state-created vulnerabilities. This is done as there is scant literature focusing on the intersectional impact of the law, especially with regard to how law, drawing from state-created categories, is responsible for creating the favourable socio-economic and legal circumstances for SGBV to flourish.
Considering the goals and the research questions, the article is an innovative, interdisciplinary, empirical and theoretical examination of the intersectional impact of the law, using tensions to diagnose the intersectional legal impact. The diagnosis of the intersectional impact of the law draws from previous research, which identified various forms of tension at different levels.Footnote 7 These legal tensions enable the identification of the intersectional impact of the law and the deconstruction of the social and the legal conceptualisation of vulnerability. These tensions also deepen and expand the understanding of the state's role throughout the process of creating internal and external others.Footnote 8 They also shine a spotlight on the dynamics of the socio-legal construction and reinforcement of vulnerability. All these issues have an impact on the state's international obligations as they see the state not upholding its responsibilities to take steps to provide protection, as well as other matters.Footnote 9 Moreover, these tensions create an aggravated risk of refugee and asylum-seeking women experiencing SGBV because of structural patriarchal violence embedded and reinforced by the law.Footnote 10
The analysis in this article concerning the intersectional impact that results from the Prevention of Infiltration Law has five sections. Following this introduction, Section 2 surveys the main terms and theories used in the article. Section 3, the methodology, sets out the methods of data collection, data analysis and ethical clearance. Section 4, covering the findings, delves into an analysis of the Deposit Law and the Israel Supreme Court's decision. The article then analyses unlawful multilayered and multilevel forms of vulnerability and discrimination through an examination of state-created categories, testimonies of participants about the intersectional impact of the law and how this is related to SGBV cases. Finally, the article delves into specific tensions that can assist in diagnosing state-created intersecting vulnerabilities (Section 5).
2. Terminology
This article uses various terminologies to examine the intersectional impact of the former Israeli Deposit Law. Key terms include ‘intersectionality’ and ‘vulnerability’. ‘Intersectionality’ was coined by Crenshaw in 1989 to shine a spotlight on multiple and intersecting forms of discrimination, grounded on gender and race, that women face.Footnote 11
Related to intersectionality is the term ‘vulnerability’. The term is used in this article to identify vulnerable situations grounded on socio-legal-economic circumstances imposed on refugee and asylum-seeking Eritrean women in Israel. The article builds on Fineman's vulnerability paradox, which acknowledges that vulnerability is both embodied (constant and universal) and yet embedded (particular and specific).Footnote 12 Therefore, vulnerability is used to acknowledge inequalities and violence that asymmetrically affect refugee and asylum-seeking Eritrean women in Israel. These problems, it is asserted, arise partly because of state-created categories which create power dynamics and relations that result in structural inequalities and patriarchal violence. Patriarchal violence has been defined as the ‘comprehensive system’ of interrelated and diverse types of violence at multiple levels which ‘subjugate girls, women and all gender-oppressed people’, and which is experienced throughout their lives.Footnote 13 The article also delves into state-created categories or, as Starr notes, the inevitability of the state's need to create categories.Footnote 14
Another term used in this article is ‘tensions’. According to Putnam, Fairhurst and Banghart, tensions represent polar opposites that ‘are mutually exclusive and interdependent such that the opposites define and potentially negate each other’.Footnote 15 Thus, in this article tensions represent opposites which push policymakers, politicians and the legislators into opposite legal, political and ideological poles. As Starr notes, conflicts or pressures ‘arise over the choice and use of categories’,Footnote 16 and conflicts are rooted in other stresses and pulls, especially the tension that emerges from a state's international obligations, which may diverge from its national interests. Thus, as Starr emphasises, such official legal categories are often part of a state's constitution and legal framework, and these official and legal state-created categories can have very significant results.Footnote 17 As a result, the membership of certain socio-legal state-created categories may render the people affected invisible, oppressed and marginalised.
The tensions examined in this article are essentially grounded on state-created categories (socio-legal labels) such as ‘infiltrator’ and ‘asylum seekers’, which in this specific case result in a legal limbo because of the absence of legal status. Consequently, these state-created categories lead to state-created multilayered and multilevel vulnerabilities as a result of the marginalisation and exclusion that these categories produce at socio-legal-economic levels. Such exclusion is rooted in the construction of the ‘other’ while, simultaneously, reinforcing such a construction.Footnote 18
The article also uses the term ‘structural violence’, an expression suggested by Galtung who identifies different types of violence (direct, indirect, structural), structural violence being stable, complex, latent, ‘silent’, invisible and built into socio-legal-economic structures grounded on multiple types of exploitation.Footnote 19
Throughout the article the expression ‘sexual and gender-based violence’ (SGBV) is used as an umbrella term for violence based on gender roles (which are fluid and evolving through time, space and culture). That violence may or may not have a sexual nature, but results from ‘gendered power inequities that exploit distinction between males and females’.Footnote 20 In this respect, the UN High Commissioner for Refugees finds that SGBV encompasses five different types of violence: (i) physical violence; (iii) sexual violence; (iii) socio-economic violence; (iv) psychological and emotional violence; and (v) harmful practices,Footnote 21 also known as discrepancies between legal theory and legal practice.Footnote 22
The term ‘agency’ used in the article refers to the choice that each individual has, framed in certain socio-political-economic-gendered and racialised circumstances, and thus how they react to their circumstances. These circumstances are greatly affected by the means, resources, legal framework and social settings that frame the exercise by individuals of their agentic behaviour or resilience.Footnote 23
3. Methodology
This study draws from a wider funded empirical and theoretical project that sought to understand and contribute to the literature on SGBV against refugee and asylum-seeking women. The study included a triangulation of qualitative methods of data collection: conversational interviews, non-participant observation and a literature review. The study draws from 58 conversational interviews in three countries: Greece, Uganda, Israel. These countries were chosen for fieldwork because they had significant numbers of asylum seekers and refugees, as well as high numbers of instances of SGBV. They were chosen also because of their differing social-cultural, religious and legal contexts, which enabled useful comparisons between them to be made. This article focuses specifically on the uniqueness of the Israel dataset, which shines a spotlight on the intersectional impact of section 4 of the Infiltration Law, the former Deposit Law. This provides a singular opportunity to examine the intersectional impact of the law arising from state-created categories which result in intersecting vulnerabilities.
The fieldwork in Israel took place between October 2018 and July 2019, and included 23 conversational interviews carried out in English, with the support of an interpreter when necessary. Participants included 11 asylum-seeking women and 12 key informants. Key informants included legal scholars, humanitarian workers, activists, human rights lawyers, shelter directors and cultural mediators. The conversational interviews in Israel were conducted with the support of the Eritrean Women's Community Centre, which provided access to refugee and asylum-seeking women and cultural mediators and interpreters.
Prior to the fieldwork, the research protocol was approved and granted ethical clearance by a number of institutions in Portugal and Uganda. Before each interview, information about the study and its objectives was given and the participants’ written consent obtained. The primary data was anonymised and submitted to a multimodal analysis through a combination of thematic analysis, content analysis and feminist critical discourse analysis to look for patterns, tensions and connections.Footnote 24
It must be noted that the judicial decisions used in the article were in Hebrew and were translated by the authors. The extracts used are the authors’ translations.
4. Findings
4.1. The Prevention of Infiltration Law: Multiple amendments and multiple pushbacks by the courts
This section examines the Prevention of Infiltration Law generally, while the next section focuses only on section 4, the Deposit Law.
The Prevention of Infiltration Law, originally enacted in 1954, prohibits the entry into Israel of Palestinian fedayeen from Israel's neighbouring countries and other Arab and Muslim countries, including Palestine, Egypt, Lebanon, Syria, Saudi Arabia, Yemen and Jordan.Footnote 25 The reason for this prohibition was based on Israel's border security.Footnote 26
This law was amended over the past three decades to include people from additional countries in the category of ‘infiltrator’.Footnote 27 In 2007, the second amendment included Iran in the list of countries.Footnote 28 In 2010, the Immigration to Israel Bill proposed reforms concerning family unification, labour migration and refugees and asylum seekers.Footnote 29 As Ziegler notes, while this Bill adopted the 1951 Refugee Convention's definition of ‘refugee’ – to include gender-based persecution, as well as disability, war, natural disaster and sexual orientation – it also included the refusal of applications by asylum seekers who were nationals of an ‘enemy state’, an ‘area controlled by an enemy’ or a ‘risk area’.Footnote 30 This Bill was eventually not tabled after failing to secure the support of the government.Footnote 31 It is important to note that Israel has no specific refugee law.Footnote 32
One of the objectives of the law was to prevent people from working. This was to discourage them from coming into the country and to encourage them to leave when they could not obtain work. Another law relevant to the background to these issues, as well as the wider goals of limiting access into Israel, is the Entry to Israel Law 5712–1952. Under section 2(a)(5) of that law, ‘infiltrators’ are issued with a Conditional Release Visa (CRV). This is a ‘temporary permit’ that grants a residence visa to the person, but not social security benefits or a work permit.Footnote 33 It constitutes a means to limit entry into the country by making it difficult to live there. The law, however, is in violation of Israel's international obligations as Articles 23–24 and 17–19 of the 1951 Refugee Convention provide that refugees should be permitted to work and are entitled to access to medical care and social security.Footnote 34 Despite the legal prohibition from working, economically and socially it has not been possible to prevent African asylum seekers from taking part in the local economy by finding work.Footnote 35
The law was challenged as a result of its controversial nature. On 13 July 2010, a district court ruled that CRV holders must be allowed to seek work. The court applied the precedent of an earlier judicial decision, Gamzu, in which it was held that ‘state policy leaving a person in destitution violates their human dignity’.Footnote 36 As a result of the 2010 decision, there was no ‘enforcement’ of the prohibition on a person being able to work.Footnote 37
However, the issue was not only about whether such people could work. A further limitation of the rights of asylum seekers lay in section 7 of the Prevention of Infiltration Law (Offences and Jurisdiction) (Temporary Order) 5773-2013, under which ‘infiltrators’ were also prohibited from transferring money abroad.Footnote 38 This provision, in fact, implicitly recognised that asylum seekers, despite being holders of a CRV, were actually participating in the local economy.Footnote 39 Therefore, the non-enforcement of the law is seen by some as a means ‘to entrench a perception of CRV holders as “labour infiltrators” … rather than as persons in need of protection’.Footnote 40 Therefore, using this legal strategy was intended to reinforce the political discourse that these people are not refugees, but economic migrants.Footnote 41
As a result of the steady increase in arrivals of African asylum seekers through the Sinai border from 2006 until 2012 (when the fence on the Sinai border was completed), the Prevention of Infiltration Law was once again amended in 2012.Footnote 42 By that time, there were around 60,000 African asylum seekers in Israel, most of whom were Eritreans.Footnote 43 Since then, the Eritrean asylum-seeking population in Israel has decreased and was estimated to be around 18,782 as at 31 December 2022.Footnote 44 The third amendment expanded the definition of the term ‘infiltrator’ to include any person who is not a resident of Israel and who crosses the ‘Israeli-Egyptian border without authorisation’.Footnote 45 This consequently included African asylum seekers entering through the southern border.Footnote 46 The amendment did not distinguish refugees and asylum seekers from infiltrators. Since African asylum seekers were considered ‘infiltrators’ according to this amendment, they were consequently at risk of being automatically detained for up to three years.Footnote 47 This strategy thus intended to discourage them from attempting to enter Israel as well as encouraging their voluntary departure. The amendment entered into force in June 2012. However, the amendment was in contravention not only of Israeli domestic law (including Article 5 of the Basic Law: Human Dignity and Liberty 5752-1992) but also of the protection that international law provides, especially Article 31 of the 1951 Refugee Convention.Footnote 48
On 16 September 2013, the Israeli Supreme Court, sitting as the High Court of Justice, ruled that detention under this amendment infringed Article 8 (the proportionality requirement) of the Basic Law: Human Dignity and Liberty, and ruled that the government should change the law and release those detained immediately.Footnote 49 One paragraph of the judgment notes:Footnote 50
From the manner in which the issue was presented by the State, it appears that there are two, and only two, options. The first is the implementation of the arrangement specified in the amendment, which mandates placing the infiltrators in long-term custody until they can be deported, if ever; the second is the continued presence of large numbers of infiltrators in South Tel Aviv and other areas of the country without any regulation, supervision, or care.
Following this ruling, the Prevention of Infiltration Law was once again amended. The fourth amendment of December 2013Footnote 51 determined that those who broke the law would be detained for one year in the Saharonim detention centre. Those who were considered by the Ministry of the Interior to be difficult to deport would be held indefinitely in the Holot detention centreFootnote 52 until they agreed to return to their home country.Footnote 53 Holot was described as an ‘open’ facility where African asylum seekers would stay at night but were allowed to leave during the day, despite the requirement to register three times a day, which made it practically impossible for asylum seekers to go anywhere.Footnote 54
Once again, on 22 September 2014, the Israeli Supreme Court, sitting as the High Court of Justice, in the case of Eitan ruled against the amendment, this time declaring Amendment No 4 (regarding indefinite holding in Holot) to be annulled. This was decided on the grounds that the amendment breached the right of African asylum seekers to liberty, autonomy and freedom of movement.Footnote 55
The legal response to this ruling was yet another amendment in 2014; thus, the fifth amendment was enacted on 8 December 2014.Footnote 56 This amendment established a three-month detention in Saharonim and 20 months in Holot for all new African asylum seekers arriving in Israel.Footnote 57 It also allowed no new work permits. As noted by Ziegler, ‘[c]ritically, the fact that detainees are barred from working and the facility's remote location render the possibility of leaving the facility during daytime rather futile’.Footnote 58
While the law was enacted in an expedited process it was later partially voided in the HCJ Desta case.Footnote 59 In February 2016, the sixth amendment to the Prevention of Infiltration Law reduced the period of detention in Holot from 20 months to 12 months. The Holot facility was closed in March 2018 as a result of the expiry of Chapter D of the Prevention of Infiltration Law.
The issue of asylum seekers being able to work, which the Court had permitted in 2010, was then revisited by the legislature. The new law, the Prevention of Infiltration Law and Guaranteeing the Exit of Infiltrators from Israel,Footnote 60 it was claimed, relied on the Foreign Workers Law of 2000, which had a deposit system.Footnote 61 Thus, in January 2017, the amended law determined that Israeli employers were required to deduct 20 per cent of the salaries of asylum seekers and place it in the Deposit Fund.Footnote 62 These amounts were intended to be given to the African asylum seekers upon their departure from Israel.Footnote 63 The law determined that an additional 16 per cent ‘of the gross (pre-tax) salaries’ must be deducted by the employers and handed over to the Deposit Fund.Footnote 64 The deductions began in May 2017. The Deposit Law was criticised as being intended to push asylum seekers into poverty to coerce them into leaving Israel.Footnote 65 As a result, it became a symbol and a tool of discrimination against asylum seekers to encourage their departure.Footnote 66 Some argue that it has no connection with the original aim of the deposit system, which was to ‘force employees to pay social benefits for migrant workers employed in Israel and … to protect the rights of migrant workers’.Footnote 67 That was the reason for the 2000 amendment to the Foreign Workers Law.Footnote 68 Following the January 2017 amendment to the Foreign Workers Law, which established the Deposit Law, various civil society organisations filed a petition to the Israeli High Court of Justice. As a response to that petition, the state passed a regulation in June 2018, which reduced the size of the deposit from 20 per cent to 6 per cent for certain parts of the population;Footnote 69 this amendment came into effect on 1 November 2018. This reduction constituted a partial waiver of the deposit for women, men older than 60, trafficking survivors, and people suffering from a serious medical condition. The grounds for establishing such partial waivers were humanitarian.Footnote 70 This is a sign that the Israeli legislator acknowledged that there is no ‘common’ experience for refugees; thus, the 2018 regulation on the Deposit Law represents the application of an intersectional approach.Footnote 71
Regardless, the Israeli Supreme Court, sitting as the High Court of Justice, nullified the Deposit Law on 24 April 2020. This decision, as with the other cases that have struck down parts of the law concerning asylum seekers, is a sign that the Israeli judiciary, along with civil society and grassroots movements, are paying attention and reacting to tensions between Israel's international obligationsFootnote 72 and Israel's national interests.Footnote 73 It also fits into the ongoing tensions between the Knesset and the courts over the role of the judiciary and the issues concerning Israel's democratic features.Footnote 74 Additionally, it indicates the complicated migration issues that exist in Israel.Footnote 75
This to-ing and fro-ing dynamic between the legislator and the Israeli Supreme Court shows what Paz has described as a pattern of ‘trial-and-error’ in the approach to the asylum system.Footnote 76 It also shows how Israel has continued to use a complex legal approach to prevent African asylum seekers from entering and remaining in Israel.Footnote 77 Besides detention, a host of strategies have been used to ‘encourage’ the voluntary departure of African asylum seekers,Footnote 78 including not recognising their refugee status and non-provision of work permits or healthcare.Footnote 79 By labelling them as ‘infiltrators’,Footnote 80 Israel has sought to shape the narrative,Footnote 81 including the implication that such people are criminal threats.Footnote 82
The same narrative can be seen in other court cases. Thus, in Eitan Israeli Immigration Policy and Others v Government of Israel, in the very first line of the decision Justice Vogelman writes: ‘Over the last few years, tens of thousands of “infiltrators” from Eritrea and northern Sudan have entered into the State of Israel’.Footnote 83 The fact that this is placed at the beginning of the judgment, and uses the term ‘infiltrator’, continues that narrative. The Court could have used the term ‘people’ or ‘individuals’, or some other less pejorative term. In fact, the problematic use of the expression ‘infiltrator’ was recognised by the Court, but it continued to use the term regardless. In this respect the Court states:Footnote 84
The Law that we are examining in this case is the Law for the Prevention of Infiltration. An ‘infiltrator’ (as such term is defined in the Law) is an individual who is not a resident, who entered into Israel by means other than border patrol stations that have been set up by the Minister of Interior. In the Adam Case, I presented my stance that use of the adjective ‘infiltrate’ for those same individuals to whom the statutory arrangement subject of our hearing is directed … . As I previously indicated there, the legislator's rhetoric selection does not comply with our tests, however, let us not begin to obscure the essence. We must remember that the claim is not that the ‘new’ ‘infiltrators’ requested to enter our territory to execute acts of hostilities, and that many of them are requesting to be categorized as ‘asylum seekers’. Given this comment, in my opinion I will use – as I did in the Adam Case – the term that is designated in the Law.
The Court could easily have used different terms to refer to those affected by the law.
The Supreme Court in Gersagher v The Knesset seemed to soften the approach to the language used. Thus, it opted to use the term ‘infiltrator worker’, which appears more than 250 times in the judgment. While softer than the word ‘infiltrator’ alone, it still suggests negative language. The Court could simply have used the term ‘worker’ rather than the more pejorative ‘infiltrator’ in conjunction with it.
4.2. Fostering unlawful multilayered and multilevel forms of vulnerability and discrimination through state-created categories
What can be seen in the attempts to create categories is a means to prevent asylum seekers from entering the country and making it difficult for them once they have entered. This is not a new strategy. The quasi-legal strategy of labelling African asylum seekers as ‘infiltrators’ (via their social-legal construction as ‘others’) represents a legacy of the Israeli–Palestinian conflict.Footnote 85 The consequence of such a state-created category has been the fostering of unlawful multilayered and multilevel forms of vulnerability and discrimination.Footnote 86 As has been noted:Footnote 87
The populist movements spreading across the globe today have come in many different shapes and sizes. However, one attribute that has been relatively consistent among them is that they have thrived by stoking anger and resentment against smaller and more vulnerable sectors of society. This has been a fundamental component of the illiberal populist playbook … In more economically developed countries, populists’ target of choice has often been immigrants and refugees.
This targeting has had a serious impact on these communities, including by criminalising a range of conduct.Footnote 88 The law also made it difficult (if not impossible) for these people to be accepted as refugees. Thus, African asylum seekers were also unable to apply individually to the refugee status determination (RSD) procedure until 2013.Footnote 89 This prohibition not only ‘denied Eritrean and Sudanese access to the RSD Procedure’Footnote 90 but also delayed refugee status recognition in the Israeli legal framework as required by the 1951 Refugee Convention.Footnote 91 It needs to be noted that it was only in 2013 that Israel allowed Eritreans to apply for asylum individually, after the enactment of the third amendment to the Prevention of Infiltration Law. Despite the change, most African asylum seekers have had their claims denied: fewer than 1 per cent of claims have been accepted.Footnote 92 Furthermore, the lack of a work permit for CRV holders has led to African asylum seekers being pushed to the margins of society.Footnote 93 Without work permits, they are pushed into taking unstable jobs, trapping them in a cycle of poverty and instability.Footnote 94 This precariousness has had a greater impact on African women,Footnote 95 as their income is lower, often leaving them needing to hold several jobs. It also exposes them to higher risks of SGBV, including sexual harassment, rape and forced prostitution, because of labour exploitation and economic discrimination.Footnote 96
In this respect, some participants interviewed reported rape and sexual harassment cases in the workplace and at home, perpetuated by flatmates and landlords, including transactional sex. According to the United Nations, transactional sex is seen to be a negative coping mechanism involving sexual coercion with the intention to ‘exchange … money, employment, goods or services for sex, including sexual favours and other forms of humiliating, degrading or exploitative behaviour. This includes any exchange of assistance that is due to beneficiaries of assistance’.Footnote 97
Thus, various types of SGBV were reported by the interviewees, including transactional sex and forced prostitution. These were seen as negative coping mechanisms, as reactions to the negative intersectional impact of the Deposit Law. The effect of these types of SGBV was to exacerbate the marginalisation of asylum-seeking women and act as barriers to accessing the labour market:
[T]he [employer] demanded sex from her [asylum-seeking woman], he filmed them while having sex and now the film is online (Participant IL3).
Women asylum seekers are prostitutes not by choice, but because of economic violence. Sometimes they pay the rent with sex, it is for survival (Key Informant IL4).
[T]here is a recent report on the increasing levels of prostitution among asylum-seeking women due to the 20 per cent deduction on wages as a result of the Deposit Law (Key Informant IL8).
Thus, the lack of work permits is not only a form of economic violence, but it also increases the risk and exposure to sexual violence.Footnote 98 As noted by Gebreyesus and co-authors, the ‘political and economic marginalization that affects the lives of asylum seekers and shapes the risks they incur, particularly for women’ is grounded on the impact of the legal limbo that asylum seekers face which, in turn, heavily impacts their ‘work opportunities and living conditions (which) influences their vulnerability to sexual violence and exploitation’.Footnote 99 Therefore, an Eritrean asylum-seeking woman who participated in the study noted that many hardships were imposed by the former Deposit Law:
Life here is difficult for women, 20 per cent of the salary … is very difficult. How can we pay the bills? They take 20 per cent of the salary! … If we have work, 20 per cent of the payment is out (Deposit Law) and it is difficult to pay for living in the house … more or less 400 [Eritrean asylum-seeking women] are in prostitution for the money. The government is forcing us to leave Israel. It is very difficult for us. Forced prostitution is a shame for us (Participant IL3).
We are not treated as citizens [in Israel]. … We are the same. We are human beings (Participant IL10).
These testimonies of two asylum-seeking Eritrean women in Israel reflect their experience of economic hardship because of the impact of the former Deposit Law, as well as the lack of legal status recognition and protection. Thus, these testimonies provide evidence of the intertwined nature and connection between the state-created categories and multilayered, multilevel, multiple and intersecting forms of vulnerability.Footnote 100 They also illustrate the gendered and racialised impactFootnote 101 that leads to the socio-legal-economic marginalisation of African asylum seekers, in particular women. This, in turn, leads to various vulnerabilities arising from the state's ‘action’ (policymaking, legal framework, administration of justice). Thus, testimonies from fieldwork permitted the identification of key state-created categoriesFootnote 102 (infiltrator, asylum seekers, lack of legal status for refugees) and state-created multilayered and multilevel vulnerabilities (being labelled as ‘infiltrator’ rather than ‘refugee’, and the exclusion of asylum seekers from protection).
The idea that state-created categories – or, as StarrFootnote 103 posits, the inevitability of the state's need to create categories – may determine the (in)evitability of each state to create vulnerabilities, in turn, might jeopardise the ‘responsive State’.Footnote 104 This may result in structural and systematic symptoms which amplify certain segments of the population's vulnerability,Footnote 105 as a result of structural and systematic unlawful discrimination, such as patriarchal violence.Footnote 106 This emphasises the role of the law in reinforcing the vulnerable situation of certain parts of the population,Footnote 107 which is in contravention of Israel's international obligations.Footnote 108
This does not mean that these groups do not have agency as a means to react to these problems that were placed in their way. In Israel, as a reaction to the unjust nature of the Deposit Law, African asylum seekers and Israeli civil society over the years have developed agentic strategies to ensure legal reform. As Participant IL3 mentioned:
[The] law should be changed. They [the Israeli government] must welcome us just like they do with everyone else. They should change the law and recognise our legal status [as refugees].
4.3. Examining the intersectional impact of the Prevention of Infiltration Law
Despite its abstract and general nature, any law that is adopted anywhere affects each person differently. To examine a law's impact, it is important to consider who are the persons involved in drafting, interpreting and implementing it. For instance, as the law in Israel is designed primarily by a majority of Ashkenazi Jewish men in the Knesset, is it possible that they are able to identify and take cognisance of the asymmetrical negative impacts of the law on Eritrean asylum-seeking women? This is so, especially considering that privilege is invisible. As Khan emphasises, ‘privilege is not about what you have gone through; it is about what you haven't had to go through’ as a result of belonging to a certain group.Footnote 109 Therefore, there is a misalignment of experiences between the persons who draft and interpret the law on the one hand, and those who experience the impact of the law on the other. Consequently, it is also important to contemplate which parts of the population are affected by the law and how legal choices are made. What can be seen is that different axes of identity markers trigger different systems of oppression, creating multiple and intersecting forms of discrimination.
Some argue that the focus on identity may turn the analysis away from the criticism to neoliberal policies which produce and reinforce precarious jobs and unemployment.Footnote 110 While there is a need to include social policy in the analysis of the causes of certain legal choices, it is also important not to turn away from the analysis of intersecting axes of identity that have the potential to trigger systems of oppression, thus reinforcing structural processes.Footnote 111 These structural processes, which are embedded, may create experiences of oppression, though at different levels and in different forms. Therefore, just as there is diversity in women's experiences, there is also diversity among the experiences of African asylum seekers. In this respect, the Israeli legislator's choices – related to the former Deposit Law – have enhanced such differences among the diverse group of asylum seekers, who experience different levels and forms of vulnerability. Their vulnerability is recognised to some degree by the Supreme Court in some of the decisions of the various judges. This can be seen in the judgment of Justice Vogelman in which it is stated:Footnote 112
[P]eople who, in any event, are less fortunate and who do not have a great deal of money; where a majority of them do not speak the language or are familiar with the details of the normative arrangement applicable to them.
This is also noted in the case of Gersagher when Judge Vogelman notes:Footnote 113
Therefore, in any event this group is in a position of inferiority in anything related to asserting their rights and approaching the court. And so, in general, and in particular in the realm of industrial relations, the Infiltrator Workers are exposed to exploitation and to infringement of their rights.
In the same case Judge Amit stated:Footnote 114
As a court, we are required to examine the legality of the Law and not the intelligence of the legislator. Nevertheless, it is hard to avoid the question whether the real distress that the residents of south Tel Aviv are in will not worsen the more we cause the infiltrators to be poorer, with all ensuing consequences, from the aspects of crime, violence and density.
It is, however, the financial hardship imposed on asylum seekers by the law which has caused exclusion and marginalisation. This is particularly because of the former Deposit Law, which has had an asymmetrical impact on asylum-seeking men and women. The law in Israel has a disproportionate impact on African asylum seekers, as a result of various intersecting and multiple forms of discrimination. These are particularly damaging for Eritrean asylum-seeking women because of the gender dimension of this law as it intersects with its class, religious, race and nationality dimensions, exacerbating the exposure of asylum-seeking women to different types of SGBV.Footnote 115
In this regard, the Deposit Law in Israel incorporated economic struggle for survival as a dimension of the law. This is because the law affirmatively deprives African asylum seekers of economic resources, pushing them to the spatial margins of underprivileged and underdeveloped areas of Tel Aviv.Footnote 116 The intersectional impact of the Deposit Law was indirectly acknowledged by the Israeli Knesset in December 2017 during the hearings against the Deposit Law. As a result of pressure by Israeli civil society, the state announced its intention to address humanitarian cases, which was the reason for introducing partial waivers in June 2018.Footnote 117 These waivers entered into force with the amendment of the Deposit Law, and were applied to specific segments within the population of African asylum seekers who face greater levels of vulnerability. Thus, the regulation of partial waivers based on ‘humanitarian cases’ was the result of pressure from Israeli civil society, who submitted a petition in March 2017 to the Israel High Court, led by Kav LaOved.Footnote 118 This recognised that there are sectors of asylum seekers who face greater discrimination and exploitation based on gender (such as lower income, hence the need to have more than one job, and higher risk of SGBV incidents), class (unstable jobs and low incomes, which pushes them to underprivileged and low-income areas of Tel Aviv),Footnote 119 religion and ethnicity.
Similarly, the Israeli Supreme Court in Gersagher v The Knesset emphasised that ‘[p]etitioners argue that the Administrative Deductions Component also causes disproportionate infringement to the constitutional right to property, subsistence with dignity and equality’.Footnote 120 Therefore, gender interlocked with other axes of identity (such as race, religion, age, among others) resulted in multiple forms of discrimination and enhanced the asymmetries and inequalities, which were reinforced by the former Deposit Law.Footnote 121
This social policy on migration status has also been used to reinforce the ‘formations of under- and over-privilege[d]’ sections of the population.Footnote 122 It also reinforces the social construction of the ‘other’.Footnote 123 Legal tactics such as the former Deposit Law indicate the main tension between Israel's international obligations under the 1951 Refugee ConventionFootnote 124 and its national interests,Footnote 125 legal discrepancies the aim of which is to ensure a Jewish majority in the country.Footnote 126 Thus, there is a will to maintain a legal gap within the system, which results in the underdevelopment of the domestic law regarding asylum and the asylum system, with the intention of avoiding legal recognition of refugees, and thus denying or delaying protection for people who seek such status.
4.4. The intersectional impact of the Deposit Law on the exposure of African asylum-seeking women to SGBV
Despite being internationally obliged to respect and implement the principles of the 1951 Refugee Convention and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Israeli legal framework falls short of its international obligations. In fact, Israel has developed legal and bureaucratic barriers that have created socio-legal chaosFootnote 127 and challenges for those seeking to enter the country and obtain refugee status. This has also been done with the intention of increasing the unsustainability of asylum claims and to create obstacles in accessing the asylum procedure. This has created a legal limbo for asylum seekersFootnote 128 and left them vulnerable to precarious jobs and homelessness, which in turn amplifies their exposure to and risk of experiencing SGBV, especially for women.Footnote 129 Thus, the legal system, which should be a site of fundamental rights, instead turned it into a site of oppression.Footnote 130
As participants in the study emphasised, refugees and asylum seekers are among the sections of the population who face multiple and intersecting forms of discrimination. In this regard, the Deposit Law aggravated such vulnerability as a result of the gendered and racialised dimensions of the law, which intersected with other identity markers to make certain parts of the population even more vulnerable.Footnote 131 As noted by the Israeli Supreme Court in Gersagher v The Knesset:Footnote 132
The wages of a person who is part of a disadvantaged population from the start, and who has no social rights or a financial safety system, and who often has to provide for his family, children or other supported relatives in Israel – is a major and cardinal asset in his life … If we deprived from such a person to use one fifth of the asset, this impairs his ability to earn a living with dignity … Hence, the violation of the right to property could also result in violation of human dignity.
Among the African asylum seekers who experienced discrimination, exploitation and abuse, there are specific groups who experienced an even greater impact of such multiple and intersecting forms of discriminationFootnote 133 caused by strategically created legal obstacles.Footnote 134 It has also created problems in places like the city of Tel Aviv and surrounding area.Footnote 135 Economic discrimination has pushed refugees and asylum seekers, along with Mizrachi Jews and Palestinians, to the underprivileged suburbs of Tel Aviv. This has had an enormous impact on and disproportionally affected refugees and asylum seekers, especially women.Footnote 136 As noted above, to mitigate being deprived of the economic means to survive, many Eritrean asylum-seeking women have turned to prostitution. This was noted by one interviewee, who recalled that ‘more or less 400 [Eritrean asylum-seeking women] are in prostitution for money … forced prostitution is a shame for us’ (Participant IL3).
The law amplifies the vulnerable situation of refugees and asylum seekers, including their risk and exposure to SGBV as a result of unstable economic decisions, homelessness and their vulnerability to smugglers.Footnote 137 It has forced vulnerable women to work illegally, which has increased their vulnerability, and therefore their risk of becoming victims of SGBV. In this respect, the evidence from the dataset showcases that these intersecting and multiple vulnerabilities left asylum seekers, especially women and girls, more exposed to sexual violence, including sexual harassment, forced prostitution, forced marriage, marital rape, transactional sex. This was the experience of various participants in the study who experienced sexual harassment perpetrated by authorities, as well as a lack of assistance from the police to handle SGBV cases. Both of these negative types of behaviour were seen to be part of a wider hostile and unwelcoming attitude towards African asylum seekers, which included the role of the former Deposit Law. Thus, participants noted:
Sometimes they [the authorities in the visa interviews] ask about their [asylum seekers] sex life and sexual habits. Such questions might be considered sexual harassment (Key Informant IL7).
They [the authorities] asked very intimate questions [in the visa interviews]. If a couple don't have kids, they ask: ‘How come you don't have kids?’ (Participant IL3).
There was a case of a refugee girl; she was raped; she called the police, they didn't do anything, and she didn't survive. She could be alive now (Participant IL3).
Rape cases … Even if we go to the police they don't help, they don't care, they neglect (Participant IL9).
These statements illustrate the asymmetric impact created by the state of the legal framework relating to asylum, caused by vulnerability to the state.Footnote 138
It seems clear, therefore, that the legislation and policy have generally had a greater impact on certain parts of the population,Footnote 139 and can result in an increased risk of SGBV.Footnote 140 It results from the discrepancy between the legal principle of protecting the most vulnerable sections of the population and the reality, which is quite the opposite. Such a discrepancy between legal theory and practice indicates tensions that emphasise the vulnerability of refugees and asylum seekers.Footnote 141 Legal tensions provide an opportunity to examine such intersectional impacts arising from this vulnerability to the stateFootnote 142 based on state-created categories.Footnote 143
5. Tensions as a tool to diagnose state-created vulnerability
According to Fineman, vulnerability is both embodied – thus, constant, and universal – and yet embedded – thus, particular and specific.Footnote 144 In this regard, the Gersagher caseFootnote 145 shines a spotlight on state-created categories, the intersectional impact of which results in vulnerability to the state.Footnote 146 This emphasises the role of the law in reinforcing the vulnerable position of refugees and asylum seekers rather than addressing their vulnerability. This incongruity between the legal requirement to protect the most vulnerable sections of the population, grounded in Article 1A of the 1951 Refugee Convention, and the reality allows for the identification of tensions that emphasise the vulnerable position of refugees and asylum seekers,Footnote 147 resulting in the greater risk of being discriminated against, oppressed and exploited.
Tensions between the international obligations and national interests of Israel are rooted in democratic concerns, as well as in border security issues.Footnote 148 It is evident, however, that the intersectional impact of the Prevention of Infiltration Law and its role in creating vulnerability exacerbates the position of refugees and asylum seekers rather than addressing it.Footnote 149 This tension has echoed in Israel over the decades, with an impact on refugees and asylum seekers in the country because of the absence of a domestic legal framework to implement fully the 1951 Refugee Convention.
This situation has produced secondary tensions within the Israeli domestic law: order versus disorder,Footnote 150 permanence versus impermanence, rejection versus acceptance.Footnote 151 These tensions identify an aggravated risk of SGBV for refugees and asylum-seeking women because of structural patriarchal violence embedded in and reinforced by the law. However, these tensions also indicate the lack of political will by states to address these issues, which jeopardises the effectiveness of international human rights law and that system.
In fact, many industrialised countries send contradictory messages to their communities. Commonly, states choose to ratify international conventions and treaties yet fail to incorporate and implement them at the domestic level.Footnote 152 In the Israeli case, this is achieved by the design and implementation of a domestic law which artificially creates exceptions to avoid complying with the state's international obligations. As noted above, these legal choices are strategically designed to encourage asylum seekers to leave Israel. All these legal strategies express management of the main tension (international obligations under the 1951 Refugee Convention and national interests) through a selection of legal measures that contravene and undermine the values and principles of various parts of international law.Footnote 153
Therefore, despite the ongoing criticism of the Refugee Convention being outdated,Footnote 154 the reality behind its potential ineffectiveness is the absence of political will to apply its provisions adequately, because of tensions arising from the state's international obligations and national interests. Israel has never incorporated the Refugee Convention into its law and, as noted, no refugee law or immigration law exists for non-Jews.Footnote 155 This has occurred purposively. The state has also narrowly interpreted its duties under the Refugee Convention.Footnote 156 Crucially, Israeli law applies the dualist approach to the place of international law in domestic law, which means that treaty obligations are not directly enforceable by the courts, unless the Knesset has adopted a law that specifically incorporates the treaty into domestic law.Footnote 157 This means that technically the Refugee Convention is not intended to apply directly in the law, but the courts have not always followed this approach.
In this regard, the fieldwork conducted provided evidence of the intertwined nature of and connection between state-created categories,Footnote 158 leading to state-created vulnerabilities, also known as vulnerability to the state.Footnote 159 Therefore, the state-created categories of ‘infiltrator’ and ‘eligible’ asylum claims not only lead to these tensions, but also tensions between how the state frames the experience of asylum seekers and how the asylum seekers see themselves.Footnote 160 Consequently, understanding these tensions are essential in identifying the impact of the law in terms of making (in)visible multiple life experiences that encompass different forms and levels of vulnerability during different phases of a person's life. Tensions acknowledge the social and legal construction of categories and the gendered and racialised impact of such constructions.Footnote 161 Critically important is the state's role in the creation, reinforcement and endorsement of various types of vulnerability.
In the Israeli case, it is the state-created categories of ‘infiltrator’ and ‘eligible’ asylum claim – and, in concert, the framing and stigmatising of African de facto refugees as ‘infiltrators’Footnote 162 – which not only fostered unlawful multilayered and multilevel forms of vulnerability and discrimination, but also had an intersectional impact on the asylum-seeking community in Israel.
For these reasons, we argue that SGBV targeting refugees and asylum seekers results from, and reveals, a structural and systematic symptom of the state, which amplifies the vulnerable position of refugees and asylum seekers because of their precarious economic situation, homelessness and vulnerability to smugglers. Evidence from the dataset indicates that these intersecting and multiple vulnerabilities leave asylum seekers, especially women and girls, more exposed to sexual violence, including sexual harassment, forced prostitution, forced marriage and transactional sex (Key Informants IL7 and IL4; Participants IL3, IL9 and IL6). Such intersectional impacts of the law result from the state's role in the creation, reinforcement and endorsement of multilayered and multilevel vulnerabilities, which have a gendered and racialised impact on different sections of the population, especially refugee and asylum-seeking women who are exposed to an increased risk of experiencing SGBV in the country of asylum. Thus, it is clear that state legislation and policymaking has a greater impact on certain parts of the population, resulting in an increased risk of exposure to SGBV. As Justice Vogelman stated in Gersagher v The Knesset:Footnote 163
The prolonged time period the State has taken to handle these requests – not to mention ‘dragging their feet’ – leads to the applicants being trapped in a continuous and impossible state of limbo regarding their status, and with grave consequences for their rights. The Deposit Scheme therefore adds ‘another catch’ to the impossible situation the asylum seekers are in.
6. Conclusion
Assessing a person's vulnerable circumstances is not easy, especially if the legal framework aggravates such vulnerability and renders invisible certain sections of the population because of state-created categories, which leads to inevitable state-created vulnerability. In this respect, the Israeli dataset created for this study provides evidence of multiple sites that create and reinforce the vulnerable situation of African asylum seekers by discriminating, marginalising and excluding them from protection. By doing so, the socio-legal framework at play exacerbates the risk of exposure to SGBV of Eritrean asylum-seeking women, including all types of sexual violence referred to above. This increases their vulnerability and therefore their risk of becoming victims of SGBV. Israeli domestic law, in particular the former Deposit Law, in practice shows evidence of an asymmetrical impact upon African asylum seekers. This is because of the gendered dimension of the legislation, combined with the exacerbating factors of class, religion, ethnicity and nationality.
Consequently, as Fineman's vulnerability paradox emphasises, while all asylum seekers in Israel are constantly and universally vulnerable, they are not equally vulnerable because they suffer from different racialised and gendered stereotypes in their socio-legal-economic circumstances. This exacerbates the specific and special intersecting layers of vulnerability they endure, resulting in asymmetrical discrimination against them as Eritrean asylum-seeking women, which results in SGBV at times.
What can be seen is that the effects of the Deposit Law have been felt especially by women refugees and asylum seekers in that it aggravates their exposure to SGBV. The intersectional impact of the law leads to this aggravated risk, and is rooted in structural patriarchal violence that is embedded and reinforced by the law.
The former Deposit Law, along with the lack of legal status for asylum seekers, the temporary visa with no work permit, and the gentrification of urban cities such as the city of Tel Aviv and its surrounding area (as a result of the economic discrimination that pushes refugee and asylum seekers, along with Mizrachi Jews and Palestinians, to the underprivileged suburbs of Tel Aviv), have had an enormous and disproportionate impact on refugees and asylum seekers. This is because such people are among the sections of the population that face multiple and intersecting forms of discrimination, exacerbating their vulnerable situation. The Deposit Law aggravated such vulnerability.Footnote 164
This article has argued, therefore, that it is necessary to examine the intersectional impact of the state's laws and policies that create or reinforce the vulnerability of certain sections of the population. The article thus encourages states to develop the necessary measures, policies and legal reforms to ensure compliance with its international obligations.
The study also advocates the state's accountability in complying with the responsibility to host and to protect refugees and asylum seekers, especially those who face multiple and intersecting vulnerabilities, such as women and children. It is also vital to identify the legislation and policy that affect certain parts of the population in specific negative ways that result in an amplified risk of SGBV.
This article also diagnosed these issues through the notion of legal tensions. These stresses and strains are based on the tension of the state's international obligations versus its national interests. These tensions also enable the deconstruction of the social and legal conceptualisation of vulnerability, while deepening and expanding the understanding of the state's role throughout the process of creating internal and external others. This shines a spotlight on the dynamics of the socio-legal construction and reinforcement of vulnerability.
What emerges also from this article is the need for more empirical legal studies concerning migration. In this respect, the article has tried to tie together the theoretical literature with our empirical study. This is done, as few empirical legal studies have been carried out and fewer have addressed the tensions between the international obligations that exist for states under international law, including, for example, the 1951 Refugee Convention and their domestic law obligations. This represents a clear gap and limitation in the existing literature. What this empirical study has found is that while our findings are supported by the literature in general, it does pinpoint issues within the existing literature that require attention and analysis. For instance, state-created categories leading to tensions have been overlooked generally in the literature on refugee studies. In fact, there are few works on tensions and the role of state-created categories in the creation of such legal, social and/or organisational tensions. There are also gaps in the existing literature on the application of international refugee law in the domestic context. Consequently, there is a need to focus on these issues. This article hopefully is part of a process to ensure that such gaps and issues are addressed, and that there is more of a focus on such matters.
Acknowledgements
Not applicable.
Funding statement
This work was carried out within the scope of the projects UIDB/00714/2020 and UIDP/00714/2020 (CEDIS/NOVA School of Law), financed by FCT, I.P. (Portugal).
Competing interests
The authors declare none.
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