March 28, 2020

Israeli Supreme Court Grants Protection from FGM

By Tally Kritzman-Amir

On February 9, 2020 The Israeli Supreme Court published a ground breaking decision in the field of legal feminism and the rights of asylum seekers in Israel. For the first time, the Court recognized applicants as meeting the definition of refugee and instructed the Population and Immigration Authority (PIA) to provide them protection as such. The applicants were applying for refugee status because they feared that their daughters, if returned to their country of origin, will be forced to undergo female genital mutilation (FGM). This posts aims to explain the Court’s decision and discuss the implications of this decision. 

Receiving Protection from FGM

The applicants are a family from Ivory Coast. The parents have arrived to Israel in 2004 and 2005, and applied for asylum based on their own persecution. PIA rejected their applications, but they were able to remain in Israel under Temporary Protection status. When Israel revoked the Temporary Protection of Ivorians in 2012, they applied for asylum once again, saying that their daughters, who were born during their stay in Israel, would be forced to undergo FGM. They had shared with PIA that the grandmother of the girls had conducted FGM to one of her granddaughters without her parents’ consent, when the parents were away from their home. Their asylum application was rejected due to the “internal flight alternative”, since the immigration authorities assumed that they would be able to protect the girls from FGM if they reside in an area of their country which is remote from their families. The family appealed this rejection. The parents were concerned that they would not be able to protect their daughters from this practice, which is culturally important to their tribe, even if they move to a different part of the country.

As the case was pending before the Court, PIA decided to give the family status which would grant them a humanitarian status, allowing them to stay in the country while emphasizing that this is done despite the fact that the family does not meet, in their professional opinion, the standards for asylum. 

The Court decided to rule in favor of the applicants, making this the first case that the Israeli Supreme Court instructs PIA to grant an individual refugee status. The Court has generally refrained from determining whether asylum seekers meet the requirements of the definition of refugee, and leaving the question of what their status is obscure. It is interesting that the first decision of this sort is in a case of women fleeing FGM, and not in one of the cases of asylum seekers who were fleeing political or religious persecution. I have argued elsewhere, that this was a strategic choice for the Court, in an effort to evade a full confrontation with the legislative and the executive branches of government. These other branches are already threatening to pack the Court and to take away its judicial review powers by enacting an override clause, since the Court has previously issued numerous other decisions in the context of immigration law and policy. Perhaps notably, the leading opinion in this case was given by Justice Daphne Barak-Erez, who before her appointment to the Israeli Supreme Court was one of the leading feminist legal scholars in Israel. 

The decision also stands out among multiple decisions on protecting asylum seeking women from gender-based persecution in Israel. Most of the decisions given to date failed to apply a gender-sensitive definition of the category of refugee, and therefore were not instrumental in providing protection for asylum seeking women in Israel. While other countries have recognized women who have a well-founded fear of being persecuted by different forms of persecutions typical to women such as rape, FGM, forced marriage, etc., Israel has been slow and reluctant to adopt a similar approach. This decision brings Israel closer to the standards of other western democracies. 

Public Response to the Decision

Immediately after the decision was given, the former minister of justice, Ayelet Shaked, tweeted that the decision creates “a radical and dangerous interpretation to the refugee convention”, and that FGM, as appalling as it may be, cannot be grounds for refugee status in the Middle East. However, there is actually nothing radical about this decision. The US acknowledged that fear of FGM can be grounds for asylum in 1996, and so have multiple other countries. Gender-based persecution in its many forms is widely acknowledged by different countries and by the United Nations High Commissioner for Refugees. In fact, in the course of the litigation of this case, PIA did not argue that fear of FGM could not justify asylum: the legal debate was only on whether it was sufficiently proved that the family could be safe in other parts of their country of nationality.

The Minister of Interior, Arye Deri, said that the decision could have harsh consequences, and may create a situation in which Israel has to include many African women, which he saw as unacceptable. This concern seems far-fetched at best. While the “fear of numbers” is typical to the immigration context, it really has no factual grounding in the case of Israel. Since the erection of the border fence along the Israel-Egypt border in 2013, the long continental border which Israel shares with Africa, it has become impossible to enter Israel in an undocumented manner. In such a situation, it is hard to imagine a phenomenon of large-scale migration from Africa. Also, research indicates that the inclusion of gender-based persecution in the definition of refugee had little or no impact on the number of women seeking asylum in other countries, so there is no reason to think this will make a difference in the case of Israel. There are so many barriers preventing women from fleeing and seeking asylum, that favorable changes in immigration norms are not key determinants of whether they will arrive to a country to seek asylum.  

The decision given by the Israeli Supreme Court puts Israel on the same line with many other western democracies, and contributes to the international efforts to combat violence against women in its various shapes, including FGM. As an Israeli woman, it is a proud moment to see that Israel lives up to the lesson of “never again”, a lesson learned by the suffering of the Jewish refugees, and extends it to African children refugees. 

Dr. Tally Kritzman-Amir is an Israel Institute Visiting Associate Professor, Harvard Department of Sociology, and a Senior Lecturer at the College of Law and Business, Israel. She is a 2018 GCRL Scholar in Residence and a current Research Associate at HBI.


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