Prevention of Infiltration Law

The Prevention of Infiltration Law is an Israeli law enacted in 1954, which defines offenses of armed and non-armed infiltration to Israel and from Israel to hostile neighboring countries. The law authorizes the Minister of Defense to order the deportation of an infiltrator before or after conviction.[1]

Infiltrator from Gaza Strip caught by Israeli soldiers, 1954

The purpose of the law was to prevent the entry of Palestinian refugees or their sympathizers (see fedayeen) into Israel and allow for their expulsion, for fear of terrorism.

After the 1948 Arab–Israeli War (known to Israelis as the "War of Independence" and to Palestinians as al-Nakba, or "The Catastrophe") and the 1948 Palestinian exodus, many Palestinians who either fled or were expelled from their towns and villages, whether they had had altogether ventured beyond what became Israel (largely into the neighbouring Arab countries of Lebanon, Syria, Jordan and Egypt) or were internally displaced, tried for many year since then to return to the places they had left. The Israeli Government enacted the Prevention of Infiltration Law in order to forbid and impede, what under the law receives the name of "infiltration", into Israel..

The law was amended in 2013, in the context of Illegal immigration into Israel from Africa, setting limitations on the time an infiltrator could be detained, increasing the number of anti-infiltration enforcement officers, and increase compensation to infiltrators who willingly returned to their own countries.[2]

Context
For more information on historical context, see 1948 Palestinian exodus, 1948 Arab–Israeli war, Palestinian immigration (Israel) and Israeli–Palestinian conflict.

Palestinian infiltration into Israel first emerged among the Palestinian refugees of the 1948 Arab-Israeli War, living in camps in Jordan, Lebanon, Egypt, and Syria. Most of the infiltration at this time was economic in nature, with Palestinians crossing the border seeking food or the recovery of property lost in the 1948 war.[3] Between 1948 and 1955, infiltration by Palestinians into Israel was firmly opposed by Arab governments.[4][5]

The problem of establishing and guarding the demarcation line separating the Gaza Strip from the Israeli-held Negev area, proved a vexing one: largely due to the presence of more than 200,000 Palestinian Arab refugees in this Gaza area.[6] The terms of the Armistice Agreement restricted Egypt's use and deployment of regular armed forces in the Gaza strip. In keeping with this restriction the Egyptian Government's answer was to form a Palestinian para-military police force. The Palestinian Border police was created in December 1952. The Border police were placed under the command of 'Abd-al-Man'imi 'Abd-al-Ra'uf, a former Egyptian air brigade commander, member of the Muslim Brotherhood and member of the Revolutionary Council. 250 Palestinian volunteers started training in March 1953 with further volunteers coming forward for training in May and December 1953. Part of the Border police personnel were attached to the Military Governor's office and placed under 'Abd-al-'Azim al-Saharti to guard public installations in the Gaza strip.[7] It was only after Israel's raid on an Egyptian military outpost in Gaza in February 1955, in which 37 Egyptian soldiers were killed, that an Arab government—in this case the Egyptian—began to actively sponsor fedayeen raids into Israel.[8] According to the Jewish Agency for Israel between 1951 and 1956, 400 Israelis were killed and 900 wounded in fedayeen attacks.[9]

From time to time, too, the Israeli authorities arrested groups of Arabs who had stayed in the country without being granted Israeli nationality and pushed them over the frontier. These Arabs would often return and, through their relatives, obtain decisions from the Israeli courts allowing them to stay in Israel.[10]

During the 1949–1956 period the motivation of infiltration was social or economic concerns.[11]

For some time these practices continued to embarrass the Israeli authorities until finally they passed a law forbidding Palestinians to enter Israel, those who did so being regarded as "infiltrators.".[10] Most of the people in question were refugees attempting to return to their homes inside the new Israeli state. Between 30,000 and 90,000 Palestinian refugees returned to Israel as a result. They wanted to return to what were their homes prior to the Arab–Israeli War, looking for their lost loved ones, harvesting crops from fields that were confiscated, and to reclaim property other than land. There were also Bedouin to whom the concept of newly established borders were foreign.

Arabs declare the infiltration into Israel's territory to have been a direct consequence to the displacement and dispossession of the Palestinian refugees during the 1948 Arab–Israeli War. To Israel, the infiltration was a large problem. Israel's answer to this was to establish new settlements along the border and raze the abandoned Arab villages. A "free fire" policy towards infiltrators was adopted—a policy of shooting those crossing the international armistice line illegally. Eventually, the Israeli leadership came to the conclusion that only retaliatory strikes would be able to create the necessary factor of deterrence, that would convince the Arab armies to prevent infiltration. Although the strikes were sometimes confined to military targets (particularly, at the later stages of the infiltration), numerous civilians were killed, prompting the question whether the strikes were a form of collective punishment.

The Prevention of Infiltration Law

The Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 defined as an "infiltrator" anyone who (Article 1 (a)):

...has entered Israel knowingly and unlawfully and who at any time between the 16th Kislev, 5708 (29 November 1947) and his entry was -
(1) a national or citizen of the Lebanon, Egypt, Syria, Saudi-Arabia, Trans-Jordan, Iraq or the Yemen ; or
(2) a resident or visitor in one of those countries or in any part of Palestine outside Israel ; or
(3) a Palestinian citizen or a Palestinian resident without nationality or citizenship or whose nationality or citizenship was doubtful and who, during the said period, left his ordinary place of residence in an area which has become a part of Israel for a place outside Israel.[12]

According to COHRE and BADIL (p. 38),[13] under the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954, the definition of ‘infiltrators’ corresponded closely with that of ‘absentees’. The law established strict penalties for such ‘infiltration’. Under this law, ‘internal refugees’ (Palestinians who were declared absent from their own villages but inside Palestine at the time Israel was created) were also barred from returning to their villages. When caught, these were then expelled from Israel. Over the ensuing years, several thousand internally displaced Palestinians were expelled in this manner, paving the way for Jewish immigration and colonisation of their lands.

According to Kirsbaum[14] over the years, the Israeli Government has continued to cancel and modify some of the Defense (Emergency) Regulations of 1945, but mostly it has added more as it has continued to extend its declared state of emergency. For example, even though the Prevention of Infiltration Law of 1954 is not labelled as an official "Emergency Regulation", it extends the applicability of the Defence (Emergency) Regulation 112 of 1945 giving the Minister of Defence extraordinary powers of deportation for accused infiltrators even before they are convicted (Articles 30 & 32), and makes itself subject to cancellation when the Knesset ends the State of Emergency upon which all of the Emergency Regulations are dependent.

According to a Tel-Aviv University document[15] the Law does not consider the motives of the person for crossing the border and entering Israel. It also enables the establishment of Tribunals for the Prevention of Infiltration, in which judges will preside who are military officers (but who do not necessarily possess legal knowledge) and enables the tribunal to deviate from the rules of evidence. The penalties for infiltration are severe—and may reach imprisonment for five years. The author states that in practice, no uniform practice is employed in relation to persons who cross the border and apply for asylum. Some have been held for periods of two or three years in prison, others have been released from prison on various conditions, while others have not been allowed to enter Israel at all and were returned to the place from which they came (in possible breach of the principle of non-refoulement).

A new government bill, updating the Infiltration Prevention Law,[16] was passed in a vote after the first reading in the last Israeli Knesset term in May 2008,[17] and is being debated in the Committee of Interior in preparation for the second vote and, if this passes, the final vote in the plenum. The bill would allow officers of the Israel Defense Forces to deport asylum seekers, many from Darfur, South Sudan, and Eritrea, back to Egypt. This could be done without providing for a Refugee Status Determination process, as required under in the 1951 Geneva Convention for the protection of Refugees. In the discussions in the Knesset committee, a UNHCR representative emphasized that the international community may criticize Israel if the law did not follow international law.[18] This bill was dropped in July 2010.

A new amendment was brought into the Knesset, which was passed in first reading on 28 March 2011.[19] The law was passed on 9 January 2012[20] and became law on June 3, 2012.[21]

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See also

References
  1. Counter Terrorism in Democracies: The Legal Experience of Israel, by Dov Shefi. West Point Military Academy, New York, December 8, 1999
  2. Efraim, Omri (24 November 2013). "State ratifies amendment to Prevention of Infiltration Law". Ynet News. Retrieved 21 December 2014.
  3. Almog, 2003, p. 20.
  4. "There is strong evidence from Arab, British, American, UN and even Israeli sources to suggest that for the first six years after the [1948] war, the Arab governments were opposed to infiltration and tried to curb it...The Lebanese...effectively sealed the border with Israel. The Syrian authorities also exercised strict control over their border with Israel, and infiltration was rarer. The Egyptian authorities...pursued a consistent policy of curbing infiltration until 1955...Secret Jordanian documents captured by the Israeli army during the June 1967 war...reveal strenuous efforts on the part of the Jordanian military and civilian authorities...to keep [infiltrators] from crossing [the Israeli border]." - Shlaim, The Iron Wall pp. 84-85, ISBN 0-14-028870-8
  5. As an Israel Foreign Ministry official stated: For years the army [i.e. IDF] has been informing the Ministry and the outside world that infiltration is being sponsored, inspired, guided, or at least utilised by the Legion or other powers that be. However...when [we] asked [the army for] ...some clear documentary proof of the [Arabs] Legion’s complicity [in the infiltrations]...no clear answer came from the army. Finally Fati [i.e. deputy DMI Yehoshafat Harbaki] told Leo [Savir, senior Foreign Ministry official] and myself, on two separate occasions, that no proof could be given because no proof existed. Furthermore, Fati told me that having personally made a detail study of infiltration, he had arrived at the conclusion that Jordanians and especially the Legion were doing their best to prevent infiltration, which was a natural decentralised and sporadic movement. In fact, listening to Fati or his colleagues these days, one could almost mistake them for British Foreign Office [which consistently argued in this vein]." Benny Morris (1993) Israel's Border Wars, 1949-1956: Arab Infiltration, Israeli Retaliation, and the Countdown to the Suez War Oxford University Press, ISBN 0-19-829262-7 P 67
  6. UN Doc S/1459 of 20 February 1950 a report on the activities of the Mixed Armistice Commissions
  7. Yezid Sayigh (1999) Armed Struggle and the Search for State: The Palestinian National Movement, 1949–1993. Oxford University Press ISBN 0-19-829643-6 p 61
  8. "Records show that until the Gaza raid, the Egyptian military authorities had a consistent and firm policy of curbing infiltration...into Israel...and that it was only following the raid that a new policy was put in place, that of organizing the fedayeen units and turning them into an official instrument of warfare against Israel." - Shlaim, p. 128-129.
  9. "Map". Jewish Agency for Israel. Archived from the original on 23 June 2009.
  10. Jiryis, Sabri (1981): "Domination by the Law." Journal of Palestine Studies, Vol. 11, No. 1, 10th Anniversary Issue: Palestinians under Occupation. (Autumn, 1981), pp. 67–92.
  11. Benvenisti, Meron (2000): Sacred Landscape: Buried History of the Holy Land Since 1948. Chapter 5: Uprooted and Planted Archived 4 September 2006 at the Wayback Machine. University of California Press. ISBN 0-520-21154-5
  12. "Prevention of Infiltration Law (1954)". Israel Law Resource Center. passed by the Knesset August 16, 1954. Archived from the original on 13 March 2012. Retrieved 4 June 2012. SOURCE: 'Laws of the State of Israel: Authorized Translation from the Hebrew, Volume 8'. Government Printer, Jerusalem, Israel (1948-1987), p. 133-7 Check date values in: |date= (help)
  13. Ruling Palestine, A History of the Legally Sanctioned Jewish-Israeli Seizure of Land and Housing in Palestine. Publishers: COHRE & BADIL, May 2005, p. 37.
  14. Kirshbaum, David A. Israeli Emergency Regulations and The Defense (Emergency) Regulations of 1945. Israel Law Resource Center, February 2007.
  15. Israel - A Safe Haven? Problems in the Treatment Offered by the State of Israel to Refugees and Asylum Seekers.
  16. "Infiltration Prevention Law" (PDF). Archived from the original (PDF) on 28 August 2014. Retrieved 17 March 2015.
  17. http://www.haaretz.com/hasen/spages/1098405.html
  18. http://www.jpost.com/Israel/Article.aspx?id=167724
  19. Anna Stoil, Rebecca (30 March 2011). "Anti-infiltrator law passes first reading in Knesset". Jerusalem Post. Retrieved 4 June 2012. According to the bill, detainees would not have the right to be brought to a speedy trial, and official visits would be allowed only once every two months, instead of the current monthly.
  20. Lis, Jonathan (10 January 2012). "Knesset passes bill that could put asylum seekers in jail without trial". Haaretz. Israel. Retrieved 4 June 2012. According to the bill, migrant workers already here could be jailed for the most minor offense such as spraying graffiti or stealing a bicycle - infractions for which they would not have been detained before. They could be held for anywhere from three years to life.
  21. Weiler-Polak, Dana (3 June 2012). "Israel enacts law allowing authorities to detain illegal migrants for up to 3 years". Haaretz. Israel. Retrieved 4 June 2012. The law makes illegal migrants and asylum seekers liable to jail, without trial or deportation, if caught staying in Israel for long periods. In addition, anyone helping migrants or providing them with shelter could face prison sentences of between five and 15 years.
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