Last week, the State of Israel directly granted refugee status to a Sudanese national for the first time: to Mutasim Ali, from Sudan’s Darfur region and a high-profile activist working on behalf of the 50,000 asylum seekers from sub-Saharan Africa. Nearly a fifth of the asylum seekers are Sudanese, with the rest being mostly Ethiopian and Eritrean; as Black Africans and non-Jews, they have become a visible presence inside the Green Line over the past decade. Prime Minister Benjamin Netanyahu has labeled them a threat to the country’s “Jewish and democratic” character. The state has authorized prolonged detention of asylum seekers and built two detention camps in the Negev/Naqab desert to hold them; Mutasim Ali was in one of these facilities for 14 months. African asylum seekers have also been subject to racial violence and harassment (this short documentary provides additional context).

Israel notionally accepts the principle that the asylum seekers should not be forcibly repatriated (although critics have accused it of effectively doing just that through encouraging resettlement in third countries such as Rwanda), but nevertheless refuses to offer a comprehensive or even a minimally adequate solution to their legal status. Although the State of Israel is a signatory to the 1951 Convention Relating to the Status of Refugees, it does not have a domestic statutory framework for asylum. Until 2009, the United Nations High Commissioner for Refugees (UNHCR) office in Israel performed the screening of refugees. UNHCR is a United Nations agency with the mandate to secure legal protections for refugees — except for Palestinian refugees, who are the responsibility of UNRWA, which instead focuses on relief work (e.g., schools, health care, food, shelter, etc.). The screening of asylum seekers is now done by the government itself, with final decisions made by the Minister of the Interior on the basis of recommendations by an inter-ministerial committee. Under the pre-2009 regime, Israel granted asylum to some Sudanese screened and recommended by UNHCR. The rate of acceptance for the thousands of asylum applications submitted since 2009, however, is well below 1% — far lower than the Western states with which Israel often claims a shared “civilizational” status.

Israel’s treatment of African asylum seekers is embedded in the more global phenomenon of anti-Blackness, which as Noura Erakat has noted on this site, plays out in diverse ways in Israel/Palestine. The Nakba is one of the key structures shaping anti-Blackness in this part of the world. In Israeli political discourse, the issue of African asylum seekers and the question of Palestine are largely seen as disconnected from one another. Yet the contours of Israel’s asylum regime and, by extension, its anti-Blackness and mistreatment of African migrants, cannot be understood in isolation from the Nakba and its laws. The situation of African asylum seekers is fundamentally connected to the Nakba in several ways.

The legal framework for the mass detention of African migrants is contained in amendments to the 1954 Prevention of Infiltration Law, which was originally adopted to enable the arrest and deportation of Palestinian refugees crossing the border to return to their homes and lands, thus protecting the demographic “victories” of the Nakba. The law transferred authority over “infiltrators” to military courts, although historian Shira Robinson notes that expulsions without trial continued nevertheless and the law’s main effect “was that the Border Guard began to arrest more returnees than it killed.”

Israel has expanded the Prevention of Infiltration Law from being primarily an instrument for expelling Palestinians to also enabling mass detention of African asylum seekers. The Knesset in 2012 amended the law to authorize detention of any unauthorized migrants — so-called “infiltrators” — for up to three years. It built the Saharonim detention camp in the Naqab desert, close to the Ketz’iot prison camp which has long been used to detain Palestinians from the 1967 territories. After the Supreme Court struck down this legislation, the law was amended again to allow detention for up to one year instead, and was overturned a second time. Finally, the Knesset allowed detention for three months as well as up to 20 months of enforced residency at Holot, an “open” detention center, i.e. one that asylum seekers could theoretically leave during the daytime but must report back to by evening. The Court approved this measure but stipulated that “open” detention should be limited to 12 months.

More fundamentally, Israel’s refusal to adopt an asylum law is directly connected to the Nakba. The Interior Ministry’s near-unfettered discretion to deny all but a handful of asylum applications, closely mirrors the treatment of Palestinian applications for residency and citizenship. And for Israel to hold an open debate on who should be permitted to receive asylum in the country would draw attention to the regime’s most important and, for international audiences, questionable laws. It would serve as a reminder that the 1950 Law of Return is not an asylum law, even though it is often portrayed this way to audiences outside Israel. It is conflated with the political rationale that the State of Israel is itself a refuge for persecuted Jews. Asylum laws function to screen out migrants in order to identify those “deserving” of protection on grounds of persecution; in contrast, the Law of Return confers a basic right to emigration on those it defines as Jews, with few exceptions.

An asylum law would also serve as a reminder of Israel’s continuing refusal to respect the right of return of Palestinian refugees. This point emerged when Labor leader Isaac Herzog called on Israel to accept refugees from Syria, prompting commentator Ron Ben-Tovim to remark that Israel “owes a debt first and foremost to the refugees it actually is responsible for creating: the millions of Palestinian refugees waiting on the sidelines of a nonexistent peace process.” Debating the creation of an asylum regime would raise embarrassing questions not only over who should have the right to enter the country, but who should rightfully decide such questions in the first place.