Interior Minister Ayelet Shaked rejected an asylum request by a woman from Sierra Leone seeking refuge from female genital mutilation (FGM) a decision which may go against a prior decision of the High Court of Justice, according to a document made public on Tuesday.
In the 43-page decision originally issued on November 17, Shaked stressed that the Geneva Refugee Convention of 1951 does not consider every danger or crisis to be reason to give a person refugee status.
While Israel has ratified the convention, it has not passed legislation regulating it in law.
According to the United Nations High Commissioner for Refugees (UNHCR), a refugee is defined as "a person who is outside his or her country of nationality or habitual residence; has a well-founded fear of being persecuted because of his or her race, religion, nationality, membership of a particular social group or political opinion; and is unable or unwilling to avail him- or herself of the protection of that country, or to return there, for fear of persecution."
Shaked argued that sex is not listed and does not meet the requirement of "membership of a particular social group" in this case.
High Court ruled threat of genital mutilation could be reason to grant asylum
In 2019, the High Court of Justice ruled that the threat of genital mutilation of minors by force would be considered a threat based on the appellants' belonging to a certain social group, meaning that they would be considered refugees under the Refugee Convention.
The interior minister admitted that, due to the ruling, a woman threatened with genital mutilation could be considered, "in appropriate circumstances," as being persecuted in a way that makes her a refugee. Shaked stressed, however, that this ruling was based on interpretation and not explicit writing.
Shaked also argued that specifically in the case of female circumcision, there are "special and significant considerations," comparing the practice to male circumcision and that it is not outlawed in Israel.
"It is hence unthinkable that the State of Israel would harm its sovereign interests and grant asylum for alleged persecution that is similar or close in its essence to a popular tradition among its own citizens."
Interior Minister Ayelet Shaked
"It is therefore unthinkable that the State of Israel would harm its sovereign interests and grant asylum for alleged persecution that is similar or close in its essence to a popular tradition among its own citizens," she wrote.
"Not only would this be illogical and disproportionate, but it would also contradict the principle of equality in the law, since the result would be that the state would be allowing a certain action to be performed on boys (and that's a good thing) and other [male] citizens while granting protection against similar harm to girls, who are not even citizens or are residing illegally," she argued, adding that "a policy such as this would be completely absurd."
The interior minister stressed that she wasn't trying to claim that male circumcision and FGM are the same, but was claiming that not all cases of female genital mutilation are considered persecution.
Shaked cited a position paper by the Royal Dutch Medical Association stating that FGM "takes many forms" and has "much milder forms" where only the foreskin of the clitoris is removed. The World Health Organization meanwhile states that "female genital mutilation of any type has been recognized as a harmful practice and a violation of the human rights of girls and women."
Shaked also pointed to attempts to outlaw male circumcision in Europe, stating that many proponents of such attempts have used reasoning similar to that used to ban female genital mutilation.
The interior minister warned that if Israel were to recognize all forms of FGM as persecution, this could have "negative consequences" for Jewish communities fighting for the right to do male circumcision.
Concerning the case of the woman seeking asylum, Shaked claimed that she is old enough that statistically, it is unlikely that she would be forced to undergo genital mutilation. The interior minister also cited cases where women were allowed to refuse to be mutilated.
The woman seeking asylum also had children while she was in Israel and, although she argued that the children would have difficulties adjusting to life in Sierra Leone, she did not claim that they would be subjected to genital mutilation.
NGO, MK condemn Shaked's decision
The Hotline for Refugees and Migrants NGO condemned the decision on Tuesday, writing that "Shaked is proud of the fact that she decided not to grant refugee status to a woman who fears that she will be forced to undergo a women's circumcision in her homeland, and this despite the fact that the advisory committee for refugee affairs – which also consists of representatives of the Interior Ministry itself – unanimously recommended that she be granted protection in Israel."
The NGO called the move a "last round of public relations on the back of a woman who sought protection in Israel."
Hadash-Ta'al MK Ofer Cassif expressed outrage at the interior minister’s decision, writing that "Shaked's decision to deport a woman, an asylum seeker from Sierra Leone, to a place where she will not be able to resist or say no to the mutilation if her body amid a risk to her life and a loss of control over her body, is satanic, inhuman and illegal.
"The fact that Shaked based her decision on the Nation-State Law only proves how vile and monstrous the law is," he said, "and what its racist consequences are for society."