Post by Maayan Ravid, DPhil candidate at the Centre for Criminology, University of Oxford. Her research explores the intersections of border control, state penal power, race, ethnicity and citizenship. Her academic studies correspond with over a decade of work on social justice issues in Israel, particularly focused on migration and minority rights. Maayan is on Twitter @MaayanRavid. This is the second instalment of Border Criminologies’ themed series on ‘Exploring the everyday of immigration detention’, organised by Annika Lindberg and Laura Rezzonico.
Political discourse, public debate, and state policies are sites where exclusionary and criminalising rhetoric about migrants emerges in visible, and often explicit forms. A dramatic event, a specific state’s policy, a political figure, or a contentious political climate, provide opportunities for harsh attitudes to be exhibited and expressed. In this post, I draw attention to a more ‘mundane’ site of analysis, examining the everyday language of state bureaucracy. I argue that the criminalisation of asylum seekers emerges from everyday, legal and bureaucratic discourse surrounding immigration detention. Discourse is understood as the ongoing articulation of social life as it reflects, constitutes and reproduces social concepts, categories, and the interactions between them. This is particularly the case with legal discourse, as it both prescribes and constitutes social situations through its formalistic authority and institutional weight. Things said or written by institutional actors, or as part of institutional ‘conversations’ in the process of legislating detention, therefore provide a site for empirical examination of the everyday discursive construction of asylum seekers and detention.
In this post, I focus on Israel, and case-specific legal categories: administrative detention, ‘infiltrators’, and ‘open detention facility’. The discussion is informed by 15 interviews conducted with government employees, legal professionals and legislators, involved in the legal battle around detention practices in Israel in 2015. I use the word ‘everyday’ to refer to seemingly mundane, neutral, technical categories that are routinely used by state bodies and legal professionals in their daily work. State employees often maintain that legal categories and frameworks are chosen based on rational, technical, or bureaucratic considerations. I argue that the way these choices are experienced, and their symbolic significance, cannot be ignored; as a punitive, criminal aura is imposed onto the target population.
Introduction to the case study
Approximately 38,000 asylum seekers from Sudan and Eritrea currently reside in Israel. All entered Israel since 2005 through non-authorized border points, and most claim to have fled persecution in Sudan or human rights abuses in Eritrea. In 2013, Israel established Holot ‘open detention facility’ in the middle of the Negev desert, approved by the Knesset (Israel’s Parliament). To date, approximately 10,000 people have been detained in Holot. Detainees must report to Holot for a year-long detention, under the 5th amendment to the Prevention of Infiltration Law. Detainees must be present for head counts in the mornings, evenings and sleep in the facility, while during the day, they are allowed outside the center’s confines. Israel’s Prison Authority runs the facility. Breach of disciplinary guidelines is punishable by sanctions, including removal to a closed facility, Saharonim, located across the road.
During interviews, three legal terms were frequently used by state employees or legal professionals to describe Holot as a non-punitive arrangement. I expand briefly on each term to trace how a punitive effect takes place, despite the claimed neutrality and administrative nature of these legal terms.
Administrative detention, which includes the arrest and detention of persons without an indictment, trial or access to judicial review, has existed since the state’s founding in 1948. The early days of Israeli statehood were characterised by the mass movement of hundreds of thousands of Palestinians who had been displaced during the 1947-8 war. Those who crossed the border without the new State’s authorisation were titled ‘infiltrators.’ Increased organized smuggling by militant groups called Fedayeen in the early years of the state, led to the legislation of the Prevention of Infiltration Law in 1954. Since 2012 this law was expanded, contested in court, and amended to regulate asylum seekers who entered the country through non-authorised border points, and enable their detention.
State employees and legislators insist that administrative detention is not punitive, and therefore does not need to comply with individual criminal law procedures and protections. However, similarities between administrative detention and penal incarceration came under scrutiny in Israel’s Supreme Court and in legislative committees. As explained in the final verdict on detention in Holot by Justice Vogelman: “Long periods of detention cross the border between a ‘disciplinary’ sanction which is largely carried out for the sake of deterrence and a ‘penal’ sanction which is punitive in its essence” (author’s translation). This observation was picked up by scholars, activists and lawyers questioning the legislative aim of detention, its covert and overt goals.
The blurred or intersecting border between criminal law and immigration law has been vastly explored under the term crimmigration. Juliet Stumpf has written about the ways in which ‘the process is the punishment in crimmigration law’, drawing on Malcolm Feeley’s 1979 work. Stumpf identifies two criteria to ascertain when processes of crimmigration law may become punitive: when those subjected to the process experience it as punitive, and when the process is enacted as a sanction by the state.
Accounts of lived experiences in detention as punishment are unfortunately plentiful. Detention’s punitiveness becomes even more palpable when criminal justice means are employed toward its implementation (as Vanessa Barker traces throughout the global north). Penal system staff, institutions, legal frameworks and moral weight of censure and sanction, endow such processes with punitive meaning. Stumpf’s first condition is therefore met. Nonetheless, throughout interviews, state officials insisted that administrative immigration detention is a distinctly different legal category than penal incarceration, and not a punitive sanction. In this insistence, state and legal professionals run the risk of what Lucia Zedner terms penal subversion. Zedner identifies increased state preferences for administrative measures, and evasion of the criminal process and its protections, as blurring the lines of criminal and administrative penalties. She calls out this process of re-labeling measures as non punitive as ‘nothing less than a cynical subversion of the criminal process and its human rights protections.’
Infiltrator is the legal category afforded to those who entered Israel through non-authorised border points. According to Israel’s Ministry of Interior, as of July 2017 38,540 ‘infiltrators’ reside in Israel. More than a quarter of this population has been detained, and an equal number submitted asylum claims. As removal to Sudan and Eritrea may prove a risk to life or safety of these persons, they cannot be deported, under the international legal principle of non-refoulement. Upon completion of one year in detention they are released with a conditional visa.
Although Israel is signatory of the 1951 UN Convention on the Status of Refugees and its 1967 Protocol, which foresees the legal status of ‘asylum seeker’ for persons seeking refuge, it chose to use the term ‘infiltrator’ and regulate the arrival of African migrants under the Prevention of Infiltration Law. This choice of legal framework, makes African migrants infiltrators rather than asylum seekers or refugees.
During interviews, state officials insisted that there is no negative connotation attached to the term. The legal category simply refers to the unlawful way in which migrants crossed the border, with no malicious side effects. Contrarily, academic literature has contextualized this discursive strategy as part of global trends of securitising migration, and pointed to specific attributes unique to the Israeli case study; most importantly, the association of the term ‘infiltrator’ with the Israeli Palestinian conflict. Yonatan Paz cites the invocation of early statehood threat through the term; Ruvi Ziegler and Barak Kalir similarly note its utilisation as a pejorative term denoting national security and terrorist threats. Yoav Duman describes the process of discursive securitization of asylum seekers as a process of ‘palestinianization.’
Open detention facility is the official description of Holot. One interviewee explained that it is intended to resemble a refugee camp rather than a prison. However, Holot is run by Israel’s Prison Authority, it looks like Saharonim prison, and is closed off to the general public. It is compulsory for detainees to remain in the center and comply with its rules, under staff supervision. Breach of regulations is punished by disciplinary sanctions, or move to closed detention. While the state defines Holot as an ‘open detention facility’, its location - in the middle of the desert, raises doubts as to the openness of this arrangement. Social exclusion is still maintained by its vast physical distance from the public.
Thomas Mathiesen wrote about prisons’ symbolic function, facilitating a differentiation between a civilised ‘us’ and a stigmatised ‘other’ deserving of imprisonment, due to moral inferiority. Contemporary practices of imprisonment perform an active role in creating and perpetuating social and political differentiation toward exclusion. Emma Bell further suggests that imprisonment creates sharp divisions and social distance between those within walls and those outside them. Detention centers’ similarity to prison serves a symbolic function of social distancing and othering, of constructing a ‘criminal other’ deserving restrictive treatment by the state, as its penal power is flexed at the border. Whereas state officials may call Holot an ‘open detention facility’, its various attributes cited above signal a punitive state approach to a group meriting exclusion, resembling state treatment of deviance and crime.
By focusing on the three legal terms examined above, I argue that the everyday use of legal, bureaucratic language enables a disregard of symbolic significance, and denial of the punitive essence of detention through technical language and professional distancing. Criminalisation of asylum seekers is thus not only facilitated through dramatic statements, made by politicians on the public stage; but also in the daily work of bureaucratic agents as they translate these sentiments into state law, and discursive constructions into material existence.
How to cite this blog post (Harvard style)
Ravid, M. (2017) What's in A Name? Exploring the Role of Law and Bureaucracy in The Everyday Construction of Holot, an 'Open Detention Facility' for 'Infiltrators' in Israel. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/11/whats-name (Accessed [date]).