The Infiltration Prevention Law (Criminal Offenses and Jurisdiction), 1954
The Infiltration Prevention Law, which was originally enacted to combat hostile sabotage activity, is currently used by the State of Israel, among other things, to deal with the phenomenon of “illegal immigrants” or asylum seekers from Africa. Our office regularly represents Eritrean, Sudanese and other asylum seekers who came to Israel because their lives in their countries of origin were unbearably difficult, and included wars and persecution on an ethnic basis. An attorney who represents asylum seekers is required to have extensive legal knowledge of the laws of entry into the State of Israel, including the Infiltration Prevention Law. The background to the enactment of the law and its provisions will be reviewed below by attorney Joshua Pex, a founding partner in our office who heads its Israel Immigration Department.
Historical background to the enactment of the Infiltration Prevention Law and the amendments to it
The Infiltration Prevention Law (Criminal Offenses and Jurisdiction), was enacted in 1954 in order to deal with the phenomenon of illegal immigration of Palestinians into Israel, who infiltrated it with the aim of carrying out hostile sabotage activities in Israel, smuggling, theft and robberies. The Palestinians who participated in these activities were called Fedayeen. Before the enactment of the Infiltration Prevention Law, the only legal solution to deal with the illegal immigrants was the imposition of a monetary fine and imprisonment of up to three months only – and the new law enabled more severe penalties to be imposed on the illegal immigrants into Israel, as well as granting additional tools for dealing with the phenomenon. Accordingly, the minister in charge of implementing the law and establishing regulations under its authority is the Minister of Defense (see section 35 of the law).
In the first decade of the 2000s, illegal immigration from Africa to Israel, across the Israel-Egypt border, became a significant phenomenon, with most of the illegal immigrants being asylum seekers from Eritrea and Sudan. In response to the influx of asylum seekers, the Saharonim prison was established in 2007, not far from the border with Egypt, which was intended to be used to incarcerate asylum seekers. With the continued influx of asylum seekers, the Infiltration Prevention Law was amended in 2012, in a manner intended to make the lives of asylum seekers difficult and reduce their motivation to come to Israel. Some of the provisions were enacted as a temporary provision for a period of three years, and have long since expired. Another part of the instructions was so draconian that the Supreme Court determined it to be in violation of human rights – and revoked it in two major court rulings – as detailed below.
The provisions of the Infiltration Prevention Law that were revoked by the Supreme Court
In the Supreme Court case Adam v. The Knesset, the Supreme Court overturned Section 30A of the law that allowed asylum seekers to be held in detention for a period of up to three years, contrary to the provisions of Section 13F of the Entry to Israel Law, which allows holding an illegal resident in Israel for a maximum of 60 days. The Supreme Court annulled Section 30a on the grounds that it is unconstitutional, because it is inconsistent with the provisions of the Basic Law: Human Dignity and Liberty. In response, the Knesset enacted an amendment to the law, which allows anyone who enters Israel illegally to be detained for one year, starting after the amendment takes effect.
Second, the Knesset enacted a provision that allowed keeping those illegal immigrants who entered Israel before the amendment to the law took effect, and therefore who are “difficult to deport”, in a “detention center” (Holot facility) – for an unlimited amount of time, unless they choose to leave Israel “voluntarily”. The Supreme Court overruled most of these provisions in another court ruling, which led, among other things, to the closing of the Holot detention facility. The Supreme Court rulings have led to much criticism from the right side of the political map, on the grounds of excessive judicial activism, including a call for the legislation of an overriding clause – a call that has returned to the headlines at the time of writing this article (February 2023). For more information on changes in the jurisprudence policy regarding asylum seekers, see this article.
Key sections of the Infiltration Prevention Law
Before dealing with key sections of the law, it is important to note that the language of the law is more draconian than the actual prosecution policy of the Attorney General’s office, and many of the law’s sections are only used to prosecute illegal immigrants whose goal is to carry out hostile sabotage activity – and not to prosecute asylum seekers:
- Section 1 of the Infiltration Prevention Law, which is the definition section of the law, states that an “illegal immigrant” is “a person who is not a resident as defined in Section 1 of the Population Registry Law, 1965, who entered Israel not through a border station established by the Minister of the Interior according to Section 7 of the Entry to Israel Law.“ The Entry to Israel Order (Border Stations), 1987, determines what the country’s border crossing stations are. It may be noted that, according to this definition, an Israeli citizen may also theoretically be considered an illegal immigrant, if they are not a resident of Israel (and entered the country without crossing a border).
- Section 2 of the law states that the punishment of an illegal immigrant may be up to “five years in prison or a fine of five thousand liras, or both punishments” (Remember, this is a law from 1954, so the amounts of the fines specified in it must be converted to NIS.) Section 3 states that an illegal immigrant who repeats the act is subject to an even more severe punishment: “Those who enter Israel illegally after being expelled from the country, their punishment is seven years in prison or a fine of seven thousand liras, or both punishments together.”
- Apart from infiltrating Israel, section 2a of the law also refers to those who leave the country illegally for some Arab countries, including the territories of Judea and Samaria and Gaza. Some of the countries on the list are ones defined as enemy countries and some of them are countries with which peace agreements have been signed – Egypt and Jordan. It is interesting to note that Iran was added to the list only in 2007: “Whoever leaves, knowingly and illegally, from Israel to Lebanon, Syria, Egypt, Jordan, Saudi Arabia, Iraq, Yemen, Iran or any part of the Land of Israel outside of the State of Israel, shall be punished – four years in prison or a fine of five thousand liras.”
- The law stipulates two presumptions, which transfer the burden of proof to the accused (a rare provision in criminal law, where the burden of proof is usually on the stronger party – the state):
- Section 10 establishes a “presumption of an illegal immigrant”, according to which “a person who enters Israel without an entry permit, or stays in Israel illegally, is considered an illegal immigrant for the purposes of this law, as long as they do not prove the contrary”;
- Section 6 states that “Whoever gave shelter to an illegal immigrant or granted them other assistance to facilitate their illegal immigration or illegal stay in Israel, shall be punished – five years in prison or a fine of five thousand liras, or both punishments.”
- Section 8 states “Whoever gave shelter to an illegal immigrant, or gave them other assistance in order to facilitate their illegal immigration or to facilitate their illegal stay in Israel and the court gained knowledge that they had already given shelter or relief as stated, their sentence – fifteen years in prison or a fine of ten thousand liras or both punishments.” Article 9(1) states the presumption of knowledge, since the section states that a defendant according to sections 6 and 8 above is considered “as if they knew about the recipient of the shelter or other relief, that they are infiltrators and staying in Israel illegally”.
- Section 7 states: “Whoever trades with an illegal immigrant, as long as they are in Israel illegally, shall be punished – five years in prison or a fine of five thousand liras or both penalties” and Section 9(2) states the presumption of knowledge: “A defendant according to Section 7 is considered as if they knew of the person they traded with that they were infiltrators and staying in Israel illegally.”
Judicial inspection of the detention of illegal immigrants and asylum seekers through custody courts
Two custody inspection courts are currently operating in Israel: in Givon, next to Ayalon Prison, and in Saharonim, next to Saharonim Prison. The custody courts primarily rule based on the Infiltration Prevention Law and the Entry to Israel Law. The decisions of the custody courts can be appealed as of right before the district court, in its function as a court for administrative affairs, and then in a discretionary appeal – before the Supreme Court.
In conclusion – contact an attorney who is an expert in the Infiltration Prevention Law
As mentioned, our office specializes in representation and legal advice for asylum seekers, and has extensive experience working with the Infiltration Prevention Law, including representation before custody courts and legal courts. You are welcome to contact the expert attorneys from our office at the telephone numbers and email address below.
This article was written in collaboration with attorney Adam Johnson.