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 | Oxford Law Faculty
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.