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1 Illegality Rules
Chinese Migrant Workers Caught Up in the Illegal but
Licit Operations of Labour Migration Regimes
Barak Kalir
This chapter explores the immigration of Chinese migrant workers to
Israel in light of the ‘illegal but licit’analytical framework as advanced
by Van Schendel and Abraham (2005). The ‘illegal but licit’analytical
framework conceptualises a useful distinction between the il/legal and
the il/licit, in order to enable us to grasp better, and talk about, what
really happens on the ground –in, across and under the formal author-
ity of nation-states. The ‘illegal but licit’framework broadens and forces
our analysis to include flows and actions that are located in a zone
where a mismatch exists between the state’s formal political authority
and non-formal social authority.
1
The first aim of this chapter is to examine the immigration flow from
the viewpoint of Chinese migrant workers, who must go through nu-
merous informal and illegal stages in the process of recruitment and
employment. Migrants regularly perceive their own actions as well as
those of recruitment companies and employers to be licit. Yet, the licit-
ness in this case is often the product of a culturally infused confusion
or plain ignorance regarding the obliging legal systems in China and
Israel. Notably, instead of there being an institutional attempt to offset
the confusion of migrant workers, this confusion is being systematically
compounded by deliberate manipulations of Chinese and Israeli recruit-
ment companies and employers.
The second aim of the chapter is to examine closely the work of the
formal authorities in China and Israel. As I shall demonstrate, the two
states choose to accommodate and turn a blind eye to the informal and
illegal dealings of private and public companies involved in the recruit-
ment and employment of Chinese workers. At times, states also act
against migrant workers using illegal methods. I therefore argue that
our understanding of the role of the state within the ‘illegal but licit’
framework should not be confined to policymaking and the fixing of
legal boundaries but instead should include a treatment of the executive
powers of states within the field of immigration. While the notion of
licitness helps to clarify the meaning of an illegal action that is socially
accepted by the people who engage in it, we need to broaden the scope
of the ‘licit’to include the peculiar situation in which state authorities
act in illegal manners according to the national law as well as interna-
tional conventions, but these illegal actions are perceived to be licit by a
majority within the national population.
Chinese Immigration to Israel: A Short History
A series of global and geopolitical changes in the late 1980s and early
1990s prompted Israel to engage, for the first time in its history, in the
importation of non-Jewish temporary migrant workers. The first
Palestinian intifada in 1987 signalled the end of Israel’s ability to rely
on an uninterrupted supply of cheap Palestinian labour from the
Occupied Territories. The disintegration of the Soviet Union in 1989
and the lifting of the Iron Curtain led to the immigration of nearly one
million Jews into Israel in the early 1990s. Having to provide Jewish
newcomers with employment and badly needed accommodation, Israel
attempted to substitute Palestinian workers with Jewish immigrants.
However, for reasons that pertain largely to the status of jobs in the
Israeli labour market, most recent Jewish immigrants from the former
Soviet Union declined the jobs that had previously been occupied by
Palestinians (Kalir 2010).
Facing an acute shortage of unskilled labour, a potential economic
recession and massive pressure from the powerful lobbies of Israeli em-
ployers, the state of Israel resorted in 1993 to the importation of mi-
grant workers. Migrant workers have been recruited from countries in
Asia (e.g. the Philippines, Thailand, Nepal, India and China) and
Eastern Europe (e.g. Romania, Bulgaria and Moldova), mainly for jobs
in the agricultural and construction sectors. By 1996, there were already
100,000 temporary migrant workers in Israel, which comprised five
per cent of the total Israeli workforce (CBS 2002). Work visas for mi-
grant workers were issued for a maximum period of five years, after
which workers were obliged to leave the country.
In 1992, Israel and China officially established diplomatic relations.
Soon after, Chinese migrant workers started reaching Israel in increas-
ing numbers (see figure 1). The recruitment of workers from China
should be seen in a broader context of the rapidly growing economic
ties between the two countries. According to the Chinese embassy in
Tel Aviv, the Sino-Israeli bilateral trade increased from US$ 50 million
in 1992 to US$ 3 billion in 2005, and more than 800 Israeli companies
are currently doing business in China.
2
28 BARAK KALIR
From an indicative rather than a representative sample of 40 Chinese
workers that I interviewed, it appears that most of them come from a
poor economic and educational background; they usually earned a pre-
migration salary of US$ 100 per month from work in construction or
agriculture, and they had around seven years of education, commonly
quitting school at the age of 15 and beginning to work for their house-
hold’s income. Indeed, the average monthly disposable income per per-
son in the provinces from which migrants reach Israel were in 2006 as
follows: Hubei US$ 90, Anhui US$ 95, Hebei US$ 105, Fujian US
$ 130, and Jiangsu US$ 135 (Israeli Embassy in Beijing, July 2006). In
Israel, Chinese workers can earn between US$ 800 and US$ 1,200 per
month if they work according to standard contracts in the construction
sector. This means that an average ratio of around 1:8 exists between
workers’salaries in China and the salaries they can earn in Israel (see
also Li in this volume).
Chinese workers in Israel are predominantly employed (around 90
per cent) in the construction sector. The other 10 per cent are employed
in factories, agriculture and caregiving for disable people.
3
Chinese
workers were initially recruited from villages across the southern pro-
vince of Fujian, but in later years, recruitment has spread to other pro-
vinces like Jiangsu, Anhui, Hubei and others.
Figure 1.1 Number of Chinese migrant workers reaching Israel (in
thousands)
0
2
4
6
8
10
12
14
1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006
Year
ILLEGALITY RULES 29
Most Chinese workers (around 80 per cent) are in the age group of
30-44 (CBS 2006), and many of them are married and have children.
This latter fact is not a coincidence but rather a deliberate policy of the
Israeli government, as it is meant to prevent the possible settlement of
workers in the country. It is strictly forbidden for migrant workers to
bring over their families to Israel, and the separation from their fa-
milies undoubtedly wears Chinese workers down emotionally. The
Spring Festival, for example, has become known among some Chinese
in Israel as ‘The Red Eyes Day’, referring to the many tears they shed
during this festivity while talking on the phone with their family mem-
bers in China. Some of the migrant workers I met used to count down
the years, months and even days to their expected return to their family
in China.
As a fact, Chinese workers do not settle down in Israel. This has lar-
gely to do with the restrictive Israeli policy and the practical impossibil-
ity of receiving Israeli residence (see also Li 2006). Some Chinese told
me that, had they been able to receive permanent residence and bring
their family to Israel, they would have considered settlement. A few un-
married Chinese workers in their late twenties told me that they
thought about marriage to an Israeli woman, which is the only way for
them to receive permanent residence in Israel. Yet most interviewees
voiced what they perceived to be the practical unfeasibility of marrying
an Israeli; as one young Chinese worker bluntly put it: ‘Israeli women
don’t like Chinese men’. And in fact, to the best of my knowledge,
there are only two registered mixed marriages between Chinese work-
ers and Israeli women.
4
And since very few Chinese female migrants
reach Israel, the chances for male workers to get involved in a romantic
relationship with Chinese women and establish a second household in
Israel are low.
Other reasons that Chinese workers mention for not desiring settle-
ment in Israel include the language barrier, the distinctive physical
‘otherness’of Chinese in Israeli society, and the fact that their economic
future in China is seen preferable to the one they can expect in Israel.
In the words of one migrant worker: ‘In Israel I can earn good money
but I can never do anything else but work in construction. With the
money I earn here I can maybe open my own business or manage a
team of construction workers in China. I will never work there [in
China] like I work here’.
The lack of possibility and/or desire to settle down in Israel led most
Chinese migrants not to value integration into Israeli society.
5
Chinese
migrants maintain very little social contact with other Israelis except for
their employers. When I asked a few of them about it, they referred to
the language barrier as well as to a general lack of interest, beyond the
initial anecdotal one, on both sides. Here is how one Chinese worker
30 BARAK KALIR
summarised it: ‘Israelis see us as workers. They can be very nice to you
when you work for them but they will not even recognise you if they
see you after some days on the street. But it’s ok, we come here to work
and go back home’.
Chinese migrants who were forced into illegality or knowingly chose
to become undocumented (as I will explain later) always eventually de-
cide to leave Israel. This is in contrast to the life strategies of undocu-
mented migrants from Latin America and Africa, who choose to settle
down in the country (see Kalir 2005, 2010). As one Israeli activist in a
local NGO that deals with undocumented migrants told me: ‘On the
spectrum of perspectives among illegal migrants in Israel, Chinese
represent one end –that of the migrants who are totally busy with sav-
ing their money and investing it in China and not in their present or
future position in Israel’.
Ubiquitous Informality: The Recruitment of Migrant Workers in
China
As several scholars have documented, the transition in China from a
planned economy to a market economy has led, among other things, to
a proliferation of employment agencies, recruitment companies and
labour export companies that deal with the emigration of Chinese work-
ers (Biao 2003; Wu 2005; see also Li in this volume). These new com-
panies are the offspring of the former PRC aid missions to allied coun-
tries, which were performed by state companies and ‘honorary volun-
teers’(Li 2004) –a Chinese euphemism for project workers who
worked abroad for little or no money.
Chinese labour companies nowadays operate under the authorisation
and supervision of four different ministries. This bureaucratic complex-
ity at least partly accounts for the fact that ‘labour export from China
seems not well regulated, despite the fact that most labour export com-
panies are state-owned’(Biao 2003: 34).
Notwithstanding the federal bureaucratic jumble, labour export in
China is by no means confined by regulations that are drafted by the
central government in Beijing. Firstly, since the 1980s, the central gov-
ernment has gradually lost its monopoly on regulating the emigration
of workers. Local governments in different provinces now exercise a de-
gree of freedom in articulating and carrying out their own policy with
respect to emigration. Those local governments that are more worried
about demonstrating economic growth view emigration positively and
actively facilitate it as a means of creating a flow of remittances and
raising the local standard of living (Thunø & Pieke 2005).
ILLEGALITY RULES 31
Secondly, authorised companies at the federal as well as provincial
and local levels do not tell the full story of emigration from China. In
post-Maoist China, the right to emigrate has been increasingly allotted
to all Chinese citizens, regardless of their personal or institutional posi-
tion. The strong desire among the Chinese to emigrate has given im-
petus to a flourishing informal ‘migration industry’(Harris 1996). This
migration industry consists of private ‘entrepreneurs’(known as snake-
heads) who arrange for people to emigrate in exchange for payment.
6
As Biao (2003: 24) reports, irregular emigration services are ‘some-
times regarded as local development strategies, and are therefore ac-
corded a certain degree of legitimacy’. In fact, ‘emigration companies
that drive much of the emigration …operate in full view of the authori-
ties and are often connected to state-owned enterprises’(Biao quoted in
Pieke 2005: 14).
Only a thin dividing line can thus be drawn between the legal work
of authorised companies and the illegal work of the informal migration
industry in China. In some regions, like in coastal central Fujian, ‘indi-
vidual officials of the government …had been involved in the illegal
emigration business already from the early 1980s’(Pieke 2005: 13). In
fact, as I shall describe next, from the perspective of many Chinese mi-
grant workers in Israel, no such line can be drawn at all.
Formally, all Chinese workers who go to Israel pursue a legal immi-
gration channel according to the regulations.
7
They all receive a pass-
port with a work visa issued by the Israeli embassy in Beijing specifying
the name of the Israeli company and the job for which workers are
recruited. Israeli companies that recruit workers in China (around 40)
must always collaborate with authorised Chinese recruitment and
labour export companies (around 30).
8
Indeed, from a purely formalis-
tic perspective, one can conclude that the recruitment of Chinese work-
ers is processed in an orderly fashion by Israeli and Chinese authorised
companies, and in full compliance with formal procedures and state
institutions.
Yet a closer examination of the process reveals a distinctively different
picture. It is a picture of a process that is fraught with informality and
illegality but which nevertheless receives the legal cachet of both the
Israeli and Chinese states at the final stage. From this closer examina-
tion, the formalistic character of the process appears to be a sheer
façade.
The most striking informal side of the process is the illegal fees that
Chinese workers are being charged by Chinese recruitment companies
for the opportunity to work in Israel. The Israeli Employment Law
(1959) forbids Israeli companies or individuals –both in Israel and
abroad –to charge a fee for the workers they provide to Israeli employ-
ers.
9
The Chinese law, however, does not directly address this issue;
32 BARAK KALIR
while there is no mention in the law that charging fees from recruited
workers is legal, there is equally no prohibition of such a practice.
In practice, Chinese workers must all pay recruitment companies an
informal fee, which has been rising consistently from around US$ 5,000
in the late 1990s to around US$ 10,000 in the early 2000s and up to
US$ 30,000 in 2010 (see also Li in this volume). To pay the informal fee,
most Chinese migrants take loans from one or all of the following
sources: relatives, friends, banks and usurers. Almost all Chinese mi-
grants depend, at least partly, on loans from usurers who charge an inter-
est rate of one to three per cent per month. The willingness of the
Chinese to pay high fees undoubtedly reflects their strong desire to emi-
grate to Israel.
10
The informal fee is regularly paid ‘under the table’, although it is
partly used to cover formal expenses such as flight tickets, medical
exams, visa application and other paperwork. The largest part of the fee
is taken by the different recruiting agents that stand between potential
migrants and their desire to work abroad. Nowadays, most potential mi-
grants learn about the opportunity to work in Israel from their relatives
or friends who had been there (to a lesser degree, they hear about it
from advertisements in newspapers and from posters in the streets).
Potential migrants must first make contact with a recruiting agent, who
usually meets them in their village. The recruiting agent usually asks
potential migrants to pay a ‘registration fee’of around 20 per cent of
the total informal fee. This ‘registration fee’is meant to demonstrate to
the agent that the would-be migrants are sincere about their intentions
and can raise the money.
Next, the recruiting agent puts potential migrants in touch with
recruitment companies that are based in the capital of the province or
other major cities. These provincial recruitment companies might not
be authorised labour export companies but they have close ties with
authorised companies, which are often based in Beijing. It is mostly
provincial companies that directly collaborate with Israeli companies for
receiving allocations of work permits for Chinese migrants. In Israel,
these semi-authorised provincial companies are also known as ‘dealers’.
Israeli recruitment companies work with a number of Chinese ‘dealers’
that recruit workers and charge them the informal fee. Shares of the
fee are then given to both the Israeli company and the Chinese state-
authorised labour export company in Beijing.
The above is only a sketchy depiction of the recruitment process,
which might include more mediation stations before its successful com-
pletion. The multiplicity of mediation stations not only inflates the
informal fee but also increases the risk that migrants fall victim to crim-
inal schemes or tactical manipulations. I heard several stories about
Chinese who paid the ‘registration fee’to recruiting agents who then
ILLEGALITY RULES 33
disappeared with the money. Others who already paid the full fee were
told that the process was stalled at a certain mediation station and that
it would cost more money to get it through (at times even as much as
US$ 3,000).
The strong desire among the Chinese to emigrate leads in some
areas to competition among many people for a limited number of work
permits. This not only allows recruitment companies to push informal
fees higher, it also forces potential migrants to ‘become friends’with
senior managers in recruitment companies. The following story illus-
trates what ‘becoming friends’translates into in practice.
Lu and Shen come from the village of Shentan in central Fujian. In
2001, they were put in touch with a recruiting agent in their village
who promised to arrange Israeli work visas for them for US$ 12,000
each. After paying the agent a registration fee of US$ 2,000, they were
instructed to raise the rest of the money within a month while their
application was being processed by the provincial company. Having
managed to raise the full amount, they contacted the agent who in-
formed them that the provincial company received a reduced number
of Israeli work visas, and therefore Lu and Shen would have to wait
their turn patiently. Some weeks later, the agent told them that the ‘big
boss’from the recruitment company in Fuzhou was coming to the
main town in the county, and that it would be wise for them to invite
him for dinner and see to it that he had a ‘good time’.
The two friends had little choice but to accept the advice of their
agent, as Lu realised all too well: ‘There were too few visas and if we
wanted to get one it was not enough that we were willing to pay the fee.
We needed to become friends with the big boss, you know, drinking
beer together, eating. Then he knows you personally and when the next
visa comes in he will think of giving it to you’.
The ‘big boss’arrived in town with his entourage, and the dinner in
a private room at a fancy restaurant cost US$ 800. Lu shared with me
his astonishment at the luxurious dinner: ‘I’ve never before in my life
been to such a restaurant’. The two friends also offered the big boss a
massage in a spa and a night in a suite at an expensive hotel. The ex-
penses that the two friends paid reached a total of around US$ 2,000.
‘Sometimes the boss will later deduct some of these expenses from the
fee you pay, but sometimes not. In our case, we got visas two months
later and the boss also gave us a discount of US$ 1,000 from the price’.
Lu seemed rather content with the deal they had managed.
The informal and illegal dealings that Chinese migrants experience
are also evident in the process of signing a working contract. According
to Israeli regulations, migrant workers must sign a detailed contract be-
fore they reach Israel and receive a copy of it in their own language.
Israel formally requires that both Israeli and Chinese recruitment
34 BARAK KALIR
companies comply with these regulations as a condition for receiving
work permits. Yet no effective enforcement of this regulation takes
place. Chinese recruitment companies take advantage of the fact that
many Chinese workers are illiterate and/or desperate to emigrate;
recruitment companies thus offer no written contract to migrants who
are too afraid to insist on it or are ignorant about their right to a con-
tract. From a survey conducted by Israeli NGOs among 43 Chinese
workers, it was revealed that 12 per cent of them never signed a written
contract, and among those who did sign a contract, 45 per cent never
received a copy of it (Hotline for Migrant Workers and Kav La’Oved
2007: 22).
The Israeli regulations regarding the signing of contracts could have
been easily enforced, for example, by the Israeli embassy in Beijing
before the issuing of visas for Chinese workers. However, as the Israeli
Consul in Beijing told me: ‘I never know what kind of contracts they
sign and what is written in them. For me, such contracts do not exist’.
11
Based on my own interviews with Chinese workers in Israel, it ap-
pears that the only meaningful contract they sign in China is with the
‘dealer’(the provincial, semi-authorised recruitment company). This
contract usually specifies the responsibility of migrants to work only for
the Israeli employer that is indicated in their contract. Some contracts
also mention the liability of the recruitment company towards migrants
in case of a premature deportation from Israel. As will be explained in
detail in the next section, it is often the case that migrant workers lose
their legal status soon after their arrival in Israel. If then caught by the
Israeli Immigration Police and deported back to China, these migrants
find themselves in the impossible position of trying to pay back the
loans they took for paying the informal fee to recruitment companies.
The contract they sign with ‘dealers’is therefore a kind of ‘insurance
policy’against deportation. As one migrant, Zhoung, explained to me:
‘If you are deported soon after you reached Israel and the company
doesn’t give you back at least part of the fee, you are a dead man’.
When I wondered if Zhoung meant ‘dead’literally, he explained in
more detail:
If you paid US$ 15,000 and you were deported after three
months, you can never pay back all the people from whom you
borrowed money. They will then come to your house every day to
ask it back. If you own a house, they will take it from you and
sell it. If you have children, they will take them from you and sell
them. They can also bring mafia people to threaten you with in-
juries or even death. That’s why you need a guarantee from the
company that you’ll get back some of the money in such a case
[of deportation]. If they give you back US$ 10,000, then you only
ILLEGALITY RULES 35
need to pay back US$ 5,000. Let’s say you saved some money in
the three months in Israel, so with a lot of hard work in China
you’ll be able to pay back the remaining US$ 2,000-3,000.
I then asked Zhoung what happens to all those migrants who have not
signed this type of ‘insurance policy’with their recruitment company.
Zhoung shared with me his knowledge of such cases:
I know of people who were deported back to China but never
went back to their village. They stayed in Beijing or Shanghai to
work like crazy just so that they can send some money back to
their families. Sometime they will secretly call their family and
tell them to come to Shanghai, and then they will never return to
the village again. Other people who returned to the village went
to the big boss in the city and threatened that if he wouldn’t pay
them back some of the fee, they will kill him or do something
crazy.
I interrupted Zhoung, saying that that ‘big bosses’surely have body-
guards who can probably inflict more harm on a violent migrant than
the other way around. Zhoung quickly agreed:
Of course, in the office you can do nothing. But maybe on the
street when he walks with his family, or at night in his home.
He can’t be all the time with guards around him. And you have
nothing to lose. That’s why I say a ‘dead man’. You might be
alive, but owning so much money it is like you are dead. So the
boss knows you can do something crazy and it is better for him
to pay you back some of the fee. He has millions, maybe even
billions. For him, US$ 10,000 is nothing. So he’ll say: ‘here, take
the money and go away’.
Most Chinese companies never inform recruits about the exploitative
contractual relation to Israeli employers, who can fire them at any given
moment and thereby instantly invalidate their legal work visa (see next
section). Chinese companies also often promise their recruits –albeit
never in written form –an employment period of three to five years in
Israel. This is a false promise because according to Israeli regulations,
the number of migrant workers that employers are authorised to hire is
revised each year. Israeli employers can therefore never guarantee mi-
grant workers a period of employment that exceeds one year.
As we can see, the legal and illegal aspects of arranging emigration
from China to Israel are completely enmeshed. Legal procedures might
be carried out by unauthorised agencies, while illegal procedures (like
36 BARAK KALIR
charging informal fees or getting paid for having a ‘good time’) might
be performed by officials in authorised companies. Moreover, Chinese
companies that process the immigration of workers to Israel (and else-
where) in this partly illegal and overwhelmingly informal fashion con-
sider their dealings to be licit. They mostly carry out their business
openly and often with full awareness (and often also with the informal
approval and cooperation) of state authorities.
Ubiquitous Illegality: The Employment of Chinese Migrant
Workers in Israel
The state of Israel implemented a highly restrictive importation
scheme, allegedly to ensure that migrant workers would never settle
down in the country. According to this scheme, work visas are issued
for a maximum period of five years, after which migrant workers are
obliged to leave Israel. In Israel, migrant workers are restricted to work
only for a designated Israeli employer whose name appears on their
work visa. If, for whatever reason, migrant workers cannot be employed
by their exclusive employer, their visas are instantly invalidated. It does
not matter whether Israeli employers arbitrarily decide to terminate the
contract with migrant workers or whether migrant workers decide (of-
ten after they were exploited) to work for other Israeli employers: the
consequence is always the same, that is, an instant loss of the migrant’s
legal status. This stringent system, which effectively binds migrant
workers to a particular Israeli employer, has become publicly known in
Israel as the ‘binding arrangement’, and it resembles the kafala system
that is in place in the Gulf States (see Gardner 2010; Pattadath & Moors
in this volume).
The ‘binding arrangement’is to the disadvantage of migrant workers,
who are deprived of all bargaining power in the local labour market.
Even more disturbing is the way in which this ‘arrangement’hands em-
ployers the power to systematically exploit their migrant workers. Being
able to threaten their workers with dismissal, many Israeli employers
regularly exploited migrant workers in different ways (on the different
forms of exploitation, see Kav La’Oved 1998, 2000; Schnell 2001).
The fear of being dismissed leads many migrant workers to endure
severe working conditions and harsh exploitation. Nevertheless, tens of
thousands of migrant workers end up losing their legal status, often
without even being aware of it. For example, Israeli employers must
renew the work visas of their migrant workers every year. The renewal
process involves a fee (of around US$ 100 in 2005) to be paid by em-
ployers to the Interior Ministry. Without ever informing their workers,
some employers decide to save on the cost of renewing visas, thereby
ILLEGALITY RULES 37
rendering their workers’status illegal.
12
The reader might rightly won-
der here: after undergoing the process of bringing workers from China
(and other countries) to Israel, how could Israeli employers so easily
decide to dismiss them or not renew their visas and thereby run the
risk that the police would deport them? To answer this question, we
must return to the role that recruitment companies play in the importa-
tion process.
Employers in Israel must use the services of Israeli recruitment com-
panies that specialise in importing workers. Recruitment companies ob-
viously save employers time and trouble, but they also pay employers
kickbacks for the ‘right’to provide them with migrant workers. As men-
tioned in the former section, Israeli companies work together with for-
eign recruitment companies (‘dealers’), which do the actual recruitment
abroad and share the collected informal fees with their Israeli ‘partner’.
In the early 2000s, Israeli recruitment companies were making an esti-
mated average profit of US$ 3,000 for each migrant worker they pro-
vided to Israeli employers (State Comptroller 2003: 649). From my
own sources, I learned that in the case of Chinese workers, Israeli com-
panies received in 2005 around US$ 10,000 for each worker who
reached Israel.
Encouraged by these kickbacks, many Israeli employers apply with
the Interior Ministry for more work visas for migrant workers than they
actually need. Some employers with superfluous migrant workers
began to ‘sell’their workers to other employers who were not entitled,
according to the state’s criteria, to an allocation of migrant workers. The
‘selling’of workers is strictly illegal under Israeli law and amounts to
human trafficking. It also leads, of course, to migrant workers losing
their legal status, as they must work for someone other than their exclu-
sive employer. If not able to ‘sell’their workers, Israeli employers will
simply dismiss them, sometimes even days after their arrival in Israel.
Two questions are pertinent here: first, why have Israel and China
not taken action against such a failing labour importation system and
the related illegal schemes that it fosters? Second, why haven’t Chinese
migrants learned their lesson and stopped (paying high informal fees
for) coming to Israel? I will first answer the second question, which will
also shed some light on a more inclusive discussion of the role of states
in the next section.
There are several factors that explain the continued flow of Chinese
workers to Israel, despite the exploitative conditions to which they are
subjected. First, most Chinese workers who were exploited and
deported still managed to earn enough money to pay back their debt
and even save some capital. The absolute number of Chinese workers
who lost all their investment in immigration to Israel is not high, and
as one Chinese ‘dealer’explained to me: ‘China is big. It is not as if
38 BARAK KALIR
when some workers from a county in Fujian were cheated that everyone
in China knows about it. Even in the same province, in another county
people might still know nothing about Israel’. Indeed, as mentioned in
the beginning, the recruitment of Chinese workers to Israel has consis-
tently spread across China to include more provinces.
Second, many Chinese migrants never fully understand the Israeli
legal and contractual framework that took them in. They often unknow-
ingly violate the conditions of their work visa due to the manipulation
of Israeli employers. When arrested by the police and deported, there is
little they can advise future migrants, as they rarely grasped the sys-
tematic fashion in which the exploitative system worked. This ignor-
ance led many deportees to focus their blame on a particular Israeli em-
ployer, a specific recruitment company, or simply their personal ‘bad
luck’.
The inability of many Chinese to understand the workings of the
legal system was compounded by cultural differences. My interviews
revealed that many Chinese workers are used to a system that is funda-
mentally based on hierarchy rather than official law. According to this
system, the people who are positioned higher in the hierarchy always
represent the law for their subordinates. Thus, when an Israeli employ-
er ‘sold’his workers, he could simply order them to work for someone
else without having to face questions such as: For whom are we work-
ing? Is it legal? Is it according to our contracts?
The final and arguably most important factor that leads many
Chinese people to desire employment in Israel despite the exploitative
legal system was the paradoxical situation whereby migrant workers
who lost their legal status often found themselves in a better economic
position as undocumented migrants. An extensive survey revealed that
73 per cent of former migrant workers in Israel improved their salaries
once they left their exclusive employers (and thus became undocumen-
ted); 45 per cent also reported an improvement in the treatment they
received from their new employers (Ministry of Labour 2001: 50).
Undocumented workers are not bound to one employer and can thus
offer their services in the ‘black’Israeli labour market and earn competi-
tive salaries. Employers of undocumented workers know that ill treat-
ment would almost immediately lead these workers to search for better
employers. Thus, in their working relations with undocumented work-
ers, many employers exercised what we can call ‘utilitarian opportu-
nism’, that is, employers treated their workers with fairness and even
kindness, which ensured that workers continued their employment
under conditions that were still very profitable for employers.
Interestingly, the survey also discovered that 48 per cent of all undocu-
mented workers had been employed in the construction sector, which
was also the chief sector for the employment of legal migrant workers
ILLEGALITY RULES 39
(ibid. 50). Thus, improvement in the conditions of undocumented work-
ers often occurred within the same sector in which they had worked as
legal migrant workers.
Over time, many Chinese learned that they could earn much more
money by working as independent day workers. They thus often purpo-
sely left their exclusive employer for more profitable but illegal indepen-
dent work. These Chinese workers began hanging out at specific road
intersections that were known to Israeli employers and ordinary citizens
who wished to contract undocumented workers. Some Chinese gradu-
ally acquired a workable command of the Hebrew language and a circle
of trusted Israeli employers who regularly contacted them on their
mobile phones, thus freeing them from the risk of standing at inter-
sections that were sometimes raided by the Immigration Police.
Chinese workers who forcefully or purposely moved from a legal to
an illegal status recall this transition with mixed feelings. In the words
of a veteran Chinese:
In that period [of illegal employment], we were making more
money than ever before. If you worked at intersections it was up
and down, sometimes you had a lot of work and sometimes less,
but we were our own boss; we could decide what job we take
and where we work. Of course, sometimes you still had to deal
with layers who didn’t want to pay you for your work. And of
course I was afraid [of being arrested by the Immigration Police],
everyone was. It was always on your mind but in the period be-
fore the Immigration Police [was established], there were not
many arrests. You had to be careful but it was ok. I remember
thinking to myself that it would be perfect if I could go on work-
ing like this but with a legal visa.
Knowing that Israel invested little effort in deportation campaigns,
many Chinese migrants arrived in Israel in the years 2001 and 2002
with the clear intention of leaving their designated employers and work-
ing illegally. They were often encouraged to act in this way by their rela-
tives and friends in Israel who had already been working successfully
in this fashion and could assist newcomers with finding ‘black’jobs.
Indeed, until the year 2002 (as illustrated in figure 2) only a tiny frac-
tion of the total number of undocumented migrants in Israel was
deported each year. While Israel has always vowed to expel all undocu-
mented migrants, deportation campaigns were regularly undermined
by failures to properly budget for the necessary extra police force, juridi-
cal personnel and detention facilities.
However, in September 2002, Israel inaugurated a special Immi-
gration Police whose task was to locate, arrest and deport 50,000
40 BARAK KALIR
undocumented migrants in its first year of operation and many more in
subsequent years. This time, a substantial budget was allocated for ex-
ecuting the task, and more than seventy officers and 400 policemen
were recruited. In addition, special courts now operated within deten-
tion centres and ruled on cases of arrested undocumented workers. The
Immigration Police managed to deport around 25,000 migrants, creat-
ing a ripple effect of intimidation that induced an estimated 55,000
more undocumented migrants to exit the country (Kalir 2010; Willen
2007).
The shift in the Israeli approach towards undocumented migrants
was the result of two main factors. First, while few undocumented mi-
grants were deported, many increasingly settled down, establishing ela-
borate communities and networks. The evident settlement of non-
Jewish migrants rendered it unsustainable for the state to continue
practicing a ‘blind eye’policy. Second, from an economic perspective,
around the year 2000, Israel needed less migrant workers. The strain
in the construction sector eased after the housing crisis of Jewish immi-
grants had been largely solved. The more acute predicament facing the
Israeli economy in the early twenty-first century was the persistently
high unemployment rate among Israelis and a looming economic reces-
sion. The working assumption of Israeli policymakers was that by
Figure 1.2 Deported undocumented migrants, 1995-2001
950 950
2768
4037
4615
742
1915
2%
1,30%
3,10%
3,80%
3,80%
0,50%
1,40%
0%
1%
2%
3%
4%
0
1000
2000
3000
4000
5000
6000
7000
8000
9000
10000
1995 1996 1997 1998 1999 2000 2001
Percentage from all Undocumented M igrants
Absol ute Num be
Year
ILLEGALITY RULES 41
toughening the conditions for welfare benefits and deporting undocu-
mented migrants, jobs would become available for long-term unem-
ployed Israelis (see The Jewish Week 10 October 2003; Haaretz 15 June
2005).
In its operations against undocumented migrants, Israel regularly
ignored its own laws and resorted to illegal methods. In the following
section, I highlight the actions that Israeli authorities have been taking
in their treatment of migrant workers in general and in their fight
against undocumented workers in particular.
The Role of the State
Different Israeli state and non-state actors repeatedly alerted the Israeli
government about the structural and legal failings of the importation
process, which led to the widespread exploitation of migrant workers.
These actors included Israeli academics (Drori & Kunda 1999; Schnell
1999; Kemp et al. 2000), NGOs, the State Comptroller (1996, 1999)
and the Bank of Israel, which asserted already in 2000 that ‘the current
system of granting work permits must be altered’(Press Release
December 2000). Despite these repeated calls, the government did little
to change the ‘binding arrangement’. Israel’s insistence on keeping the
importation scheme intact reflects its general concern with providing
the national economy with cheap labour as well as its particular bias
towards the interests of Israeli employers in the construction and agri-
cultural sectors. Israeli employers in these sectors have historically been
well organised and exercise significant political power on any ruling
government through powerful lobbies. It was indeed due to pressure
from these lobbies that the exploitative ‘binding arrangement’was
applied by Israel in the first place (Bartram 1998).
Besides doing little to amend the ‘binding arrangement’, the Israeli
authorities assisted employers in both direct and indirect ways to exploit
migrant workers. The following are a few illustrations of this type of
assistance. Israel rarely enforced the living and working conditions that
employers were obliged to provide migrant workers. As the State
Comptroller (1996: 494) gloomily asserted: ‘In practice, employers that
accommodated foreign workers in improper conditions are not being
penalised. There is a record of only three cases in which the work per-
mits of guilty employers were cancelled’. The government also made lit-
tle effort to enforce the Minimum Wage Law (1987) in the case of mi-
grant workers. The Bank of Israel found that between 1996 and 2000,
an average of 56 per cent of migrant workers were unlawfully paid
below minimum wage. Other labour laws like The Hours of Work and
Rest Law (1951) and The Severance Pay Law (1953) were also widely
42 BARAK KALIR
violated by employers, with no serious action taken by the authorities
(Schnell 2001). The Ministry of Labour designated only thirteen super-
visors for the enforcement of labour laws in sectors where migrant
workers were employed, and these supervisors mainly focused their ef-
forts on the detection of undocumented workers, while the actual enfor-
cement of migrant workers’rights was seriously neglected (Yanay &
Borowosky 1998).
Israeli employers often confiscated the passports of their workers in
order to exercise even greater control over them. Confiscating passports
constitutes a criminal offence in Israel that carries a penalty of up to
one year in prison (Penal Law, article 376-a). Israeli NGOs assisted hun-
dreds of migrant workers to complain about the confiscation of their
passports; nevertheless, the police took little if any action to follow up
on these complaints and to bring the violating employers to court.
Israeli authorities actually collaborated with employers in this unlawful
practice. Officials from the Interior Ministry who were responsible for
checking migrant workers’passports upon arrival commonly returned
the passports not to the workers but to their Israeli employers, who
then kept them (The Association for Civil Rights in Israel 1997: 55).
This more active manner in which state officials assisted employers
instead of protecting exploited migrant workers became more evident
in the case of undocumented workers. For example, Israeli employers
often called the police to arrest their migrant workers who had been dis-
missed and thus lost their legal status. Employers sometimes used this
method to get rid of workers to whom they owed several months’sal-
aries. The police regularly arrested and deported workers before the dis-
pute over their salaries could be resolved in court.
When the Immigration Police began its operation in 2002, it almost
exclusively focused its efforts on the detention of undocumented mi-
grants rather than equally targeting Israeli employers who contracted
these migrants. Since employing undocumented migrants is illegal in
Israel, tackling the phenomenon is arguably more effective when
equally enforcing the law on Israeli employers. Yet even on occasions
when the police inspected, found and arrested undocumented migrants
in construction sites or factories, the Israeli employers were regularly
spared from legal charges.
Techniques used by the Immigration Police for apprehending undo-
cumented migrants included knocking down doors with heavy ham-
mers and breaking into suspected undocumented migrants’apartments
in the middle of the night, often without warning. Suspects were hand-
cuffed and loaded on to vans or buses as if they were dangerous crim-
inals. While the Immigration Police claims to always act strictly accord-
ing to the law, the many cases that were reported by NGOs and the
media, and at times brought to court, present a different picture –one
ILLEGALITY RULES 43
of brutal apprehensions with little consideration for the traumatic
affects that an arrest could have for the individuals involved. Reports by
NGOs detail the recurrent mismanagement of authority by the
Immigration Police and the general trampling on migrants’rights
throughout the deportation process (see Hotline for Migrant Workers
and Kav La’Oved 2003, 2004; The Jerusalem Report 21 May 2003; Dahan
& Gill 2006).
Once arrested, the legal procedures for treating suspected undocu-
mented migrants were not always kept. From one report that surveyed
the legal treatment of 111 detainees, it appears that in 46 per cent of the
hearings that were held, there was no presence of a translator, and
detainees could not understand what was said nor could they present
their version to the court. Consequently, a number of detainees were
sentenced for deportation because they allegedly refused to cooperate
with the court. Some of these cases were reversed once a translator was
found and it became clear that the detainees were very willing to pro-
vide their side of the story (Hotline for Migrant Workers 2003b).
The Israeli law stipulates that detainees must be brought to court
within two weeks from the day of their arrest, or else they should be
unconditionally released. The above-mentioned report documents many
cases in which detainees were held in custody for longer than 14 days
without seeing a judge. Appeals by NGOs to authorities in the detention
centres as well as to officials at the Interior Ministry were never
answered. Finally, the report also mentions numerous cases in which
suspected undocumented migrants were deported before they were ever
brought before a court.
The Accountability Field for State’s Actions vis-a
`-vis Migrant
Workers
The illegal manner in which Israel has conducted many of its opera-
tions against migrant workers raises the following question: how can
the state of Israel get away with its illegal conduct vis-à-vis migrant
workers? To attempt to answer this question, we must first delineate
the accountability field in which the state operates. There are four
potential fronts on which Israel might stand accountable for its conduct
vis-à-vis migrant workers. In what follows, I address the influence of
each front on the conduct of the Israeli authorities.
Migrants’ Sending State
China could undoubtedly exercise some political and economic leverage
on Israel to try to have its exploitative policies and illegal actions vis-à-
44 BARAK KALIR
vis Chinese migrant workers changed. It is nevertheless clear that
China has chosen not to interfere with Israel’s handling of its immigra-
tion process. I mentioned earlier the blind-eye policy that the central
government in China adopts when it comes to the informal migration
industry. I found much support for this official Chinese line in my
interview with the Chinese consul in Israel. Here is the consul’s general
view on the system: ‘In China, we call it a win-win-win situation. All
sides win out: China is able to export workers, Israel is happy to receive
cheap workers who are willing to do the jobs Israelis don’t want to do,
and the migrants can earn and save a lot of money for their families’.
When I politely asked the consul if he was aware of the widespread ex-
ploitation of Chinese workers by Israeli employers, the consul opined
that ‘Everything goes well if they [Chinese workers] don’t do illegal
things’. When I asserted that according to most independent sources, in-
cluding NGOs and journalists but also some Israeli state institutions,
the blame for the systematic exploitation of migrant workers lies with
Israeli employers, unfair Israeli regulations and a lack of enforcement of
workers’rights by Israeli authorities, the consul laconically reacted: ‘If
the problem is with the Israeli employer, we try to call him and solve it’.
When I asked about the informal fees that workers pay recruitment
companies in China, the consul first dismissed my claim as sheer
rumours, but when I insisted that my knowledge in this matter comes
from interviews I personally conducted with Chinese in Israel, the con-
sul had this to say:
Listen, in China we have now a free market economy. You prob-
ably know that lately we even joined the WTO. It is the market
which decides if people will go abroad, not the government. So
they pay these fees to agencies, but they still earn a lot of money,
otherwise they wouldn’t have come here, right? People know
how much they have to pay and they can decide if it is good for
them to emigrate. Usually, what they pay to agencies is equiva-
lent to two years of work in Israel. But they stay here longer, of-
ten even five years, the rest of the time they work and earn
money for their families. If they had to work four years to pay
agencies they would probably not come here. Did they also tell
you how much they save? You know what? It is not a win-win-
win situation; it is a win-win-win-win situation. [Laughing out
loud at his gag]. The agencies also win, but it is still a good deal
for all sides.
This statement demonstrates that the consul is not only fully aware of
the informal payment of fees but that he sees it as an unproblematic
issue.
ILLEGALITY RULES 45
International Law, Treaties and Conventions
Israel is a signatory to UN conventions that define and safeguard the
working and living conditions of migrant workers, including those of un-
documented migrants. Nevertheless, Israel has regularly ignored UN re-
solutions and violated international conventions whenever they seemed
to interfere with what Israel perceived to be its national responsibility.
Israel’s immigration regime is closely tied to its aspiration to maintain a
Jewish state in Israel, and it is therefore considered an internal affair not
to be interfered with by other states or international organisations.
Nonetheless, some of the changes that resulted from legal appeals to
Israeli courts (see section below) were facilitated by an increased Israeli
accountability to an emerging global regime of human rights anchored
in international conventions to which Israel is a signatory. In these ap-
peals, Israeli courts regularly recognised the responsibility of the govern-
ment towards migrants as defined in international treaties.
Israeli Courts
The most effective way to influence changes in the Israeli policy vis-à-
vis migrant workers has proven to be legal appeals to Israeli courts.
Such appeals were mostly filed by lawyers working for Israeli NGOs.
The changes that Israeli NGOs managed to achieve through the courts
include: temporary halts in deportation campaigns, a reduced period of
time in which detainees must be brought before a court, regulated
healthcare for migrant workers, the possibility for dismissed migrant
workers to find new Israeli employers and thus keep their legal status
and avoid deportation, an imperative to abolish the ‘binding arrange-
ment’and introduce a new employment scheme for migrant workers,
and the permanent legalisation of status for undocumented migrants
with children who were born and raised in Israel.
However, even when Israeli courts have given clear verdicts that ob-
liged the state to amend related regulations and enforce the rights of
migrant workers, the state often did its utmost to delay the implementa-
tion of changes by appealing such rulings to higher legal instances or
by asking the court for a lengthy period of time in which to plan and
prepare for the necessary amendments. In some cases, as mentioned in
the previous section, the state simply disregarded the court’s ruling and
continued its unlawful treatment of migrant workers.
Civil Society and Public Opinion
Israeli NGOs have undoubtedly played a major role in challenging the
exploitative Israeli ‘binding arrangement’and in fighting more
46 BARAK KALIR
generally for the rights of migrant workers. Yet much of the leverage
that NGOs exercise in trying to influence migration policy and the treat-
ment of migrants by different state authorities depends on a wider pub-
lic support that they are able to mobilise for their efforts. Israeli public
opinion towards migrant workers can thus be seen as a larger context
for the legitimisation of the state’s policy and actions. While the state
has acted in an illegal and often inhumane manner towards migrant
workers, there has hardly ever been a public outcry over the legitimacy
of such illegal actions. This leads us to the following question: why was
the illegal conduct of various Israeli state authorities against migrant
workers perceived by a majority of the Israeli public to be licit?
13
Before answering this question, I would like first to analytically situ-
ate it within the ‘illegal but licit’framework as advanced by Van
Schendel and Abraham (2005).
Expanding the ‘Illegal But Licit’ Framework
The ‘illegal but licit’framework, while not avoiding the nation-state as a
significant point of reference, attempts to relativise the absolute supre-
macy of the state in the analysis. It does so by calling our attention to
the viewpoint of people who are involved in transnational flows. This
viewpoint from ‘below’can at times be out of sync with the formal view
from ‘above’–i.e. that which is represented by state laws.
To schematically explain their analytical framework, Van Schendel
and Abraham (2005: 20) offer the following matrix of ‘spaces of com-
peting authorities’, which I reproduce here in table 1.1.
The competing authorities here are the formal political authority of
states (legal-illegal) and the non-formal social authority of members in
societies (licit-illicit). While states hold the capacity to define that which
is il/legal under their jurisdiction, members in society can nonetheless
perceive things/actions/flows to be licit, given their subjective viewpoint
and position as actors.
While a complete overlap between the state’s legal definitions and peo-
ple’s perceptions produces a utopian ‘ideal state’, a negative overlap pro-
duces a state of ‘anarchy’. Yet the interesting insight and use-value of this
Table 1.1 Table of spaces of competing authorities
Legal Illegal
Licit [A] Ideal State [B] Underworld/Borderland
Illicit [C] Crony Capitalism/Failed State [D] Anarchy
ILLEGALITY RULES 47
matrix clearly lie in the mismatches it highlights. Cell [C] captures situa-
tions in which the laws of the state permit illicit corporative conduct, like
money laundering in the Cayman Islands or an ‘Enron stage of capital-
ism’in the US which allows close (and often corruptive and corrupting)
ties between politicians and private businesses. In its extreme, cell [C] re-
presents a state’s inability to define and protect the ‘legal’against the ‘illi-
cit’, leading to a collapse of the state as a valid political unit of organisa-
tion. Cell [B] calls attention to situations in which people routinely and
knowingly act not in accordance with the official law but in a way that
they take to be –within their social and spatial context –justifiable and
rightful. The two prime examples here are the underworld (as in markets
for counterfeited goods) and the borderland (as in the illegal cross-border
practices that constitute an integral part of the daily life and livelihood of
people who reside in the vicinity of international borders).
Notwithstanding the usefulness of this matrix, it is important to care-
fully examine its contours. The matrix mostly treats the state in its capa-
city as the legislator, defining il/legality. The state’s definitions of il/
legality then qualify the actions of people and either correspond to or
deviate from their own perceptions of il/licitness. The matrix thus lim-
its our conceptualisation of the state to its role as the producer of il/
legality, while it reserves for people in society the role of actors.
Obviously, Van Schendel and Abraham (2005) endow the state with
agency in that it responds to people’s perceptions and actions, and fac-
tors these inputs into a continuous process of renegotiation and amend-
ment of laws. Yet defining il/legality is distinguishable –both theoreti-
cally and in practice –from the executive authority of states. Executive
authority is manifested in and practiced through the actions of the per-
sonnel in various state institutions –i.e. policemen, ministers, judges,
civil servants, etc. The state is, of course, not a monolithic entity, and it
is not uncommon to find contradictions and ambiguities in and be-
tween the actions of different state institutions and functionaries.
We thus should examine the state as an actor in the realm of what it
has defined to be il/legal. This exercise amounts to a reversal in the
directionality of the relationship between the two protagonists in the ‘il-
legal but licit’matrix. Consider the following matrix whereby the state
(on top) is treated in its executive capacity while the public/society (on
the left) is the qualifier of state actions (see table 1.2).
Table 1.2 Table of legitimacy of state executive power
Legal Illegal
Licit [A] Legitimate Rule [B] Undisputed Legitimacy
Illicit [C] Crisis of Legitimacy/Authoritarian Regime [D] Occupation
48 BARAK KALIR
Just like in the first matrix, cells [A] and [D] are straightforward, and the
interesting insight results from the odd intersections the matrix fore-
grounds. Cell [A] represents a complete overlap between the actions of
the state and the view of the public regarding these actions, thereby pro-
ducing an ideal legitimate rule. Cell [D] represents an illegal occupation
of the state which is met with a total disapproval by the occupied so-
ciety. This kind of illegitimate occupation of the state can be external –
when it is performed by hostile state(s) –or internal, such as when a
coup d’état is led by a minority group that lacks support in society at
large. Due to its inherent illegitimacy, occupation must rest on constant
intimidation and the use of violence.
Cell [C] stands for a situation whereby the state acts in a legal fashion
but the populace perceives it to be illicit. We are then faced with a crisis
of legitimacy, which can be resolved in different ways. In a democratic
regime, such a crisis can lead to new elections which can renew legiti-
macy in the elected government. When the crisis cuts deeper, encom-
passing the very type of regime, we face a potential regime change of
the kind we recently saw in Georgia –from a one-party Soviet system to
a multi-party democracy –or in Venezuela and Bolivia, where a
Western-style democracy was replaced by a socialist system. If the crisis
in legitimacy of a governing elite is not resolved, we can usually expect
the regime to gradually become authoritarian, relying on coercion
rather than consent.
Most relevant for my discussion in this paper is the case captured in
cell [B]. This cell highlights the possibility for illegal state actions to be
perceived as licit by the majority in society. In this peculiar situation of
‘undisputed legitimacy’, as I call it, the state can expand its actions be-
yond the restrictions of its own laws without suffering a major loss in
its legitimacy. The most prominent example of this is when a state
launches a military offensive against another state in an apparent viola-
tion of international law and/or its own constitution but nevertheless
receives popular support internally for its actions. The United States’
pre-emptive wars in Afghanistan and Iraq are a case in point. The pas-
sing of the Patriot Act is another, more sophisticated example whereby
the state seeks to expand the existing law to encompass illegal actions it
is already taking, and which have broad public support.
Indeed, situations that fit into cell [B] usually occur in times of na-
tional emergencies. In fact, the possibility for governments to declare
martial law in acute situations is an institutionalised recognition of the
need for the state elite to enjoy undisputed legitimacy in times of severe
danger to the existence of the state. Given that cases captured in cell [B]
mostly represent a state of emergency, it is rather peculiar that many of
the actions that states take towards migrant workers also belong in the
same category.
ILLEGALITY RULES 49
Tellingly, states across the world tend to portray (perceived) oversized
flows of immigrants –and especially undocumented migrants –as con-
stituting a national threat. It is construed as a threat to the sustainability
of the state’s infrastructure (hospitals, schools) and resources (welfare),
its national security as well as the integrity of its nation and ‘culture’
(whatever the latter stands for in the eyes of politicians). To combat
undesired immigration, states often call for the deployment of means
that are associated with an emergency situation: the building of physical
barriers, the passing of draconian exclusionary regulations and the
deployment of the army or special police force.
Conclusion: Migrant Workers as Non-Subjects in Modern Polities
I would now like to return to the empirical case of Israel and clarify the
undisputed legitimacy that Israeli authorities have enjoyed when treat-
ing migrant workers in illegal and inhumane ways. The state of Israel
has been internationally recognised (UN Resolution 1947) and legally
established (The Declaration of Independence 1948) as a Jewish state
that fulfills the historical aspiration of the Jewish nation to establish a
sovereign state. Israel’s declared purpose has been to serve as a ‘home’
for Jews worldwide. Inspired by the Zionist ideal of the ‘foregathering
of the diaspora’, the criteria for the inclusion of immigrants as Israeli
citizens were ethno-religiously defined to conform exclusively to people
of Jewish origin.
Surprisingly, perhaps, public opinion in Israel was initially consider-
ably supportive of, and tolerant towards, non-Jewish migrant workers
(Bar-Tzuri 1996). While some Jewish Israelis clearly held prejudiced
views about ‘foreign workers’, tellingly, those who came into contact
with them held more positive views. Accordingly, the residents of Tel
Aviv, where most undocumented migrants resided, displayed the most
tolerant attitude towards non-Jewish workers (Nathanson & Bar-Tzuri
1999: 104, 115). This positive attitude was based not least on the cheap
labour that migrant workers provided many Israeli businesses and or-
dinary citizens.
However, Israeli public opinion has proven to be highly responsive to
the state’s nationalistic rhetoric. Since the government launched its first
deportation campaign in 1996, it regularly alleged that non-Jewish mi-
grants were corrupting the Jewish character of the state as well as
increasing criminality and unemployment among Israelis (Willen
2007). As a result, support for migrant workers has steadily deterio-
rated among the general Israeli public (Nathanson & Bar-Tzuri 1999) as
well as among the residents of Tel Aviv (Schnell 1999).
50 BARAK KALIR
It is fair to assume that some Israelis were influenced purely by the
state’s rhetoric and were not directly affected in a negative sense by the
presence of non-Jewish migrant workers. Yet some Israelis, especially
unskilled workers, might have suffered from competition with an
increasing number of migrant workers. It has been demonstrated that
the disadvantaged groups in Israel (those with low income and/or low
education, the unemployed, and Palestinian citizens of Israel) were
most likely to endorse economic discrimination against migrant work-
ers (Semyonov et al. 2002). Disadvantaged Israelis clearly perceived mi-
grant workers as a threat to their economic interests. However, it was
further shown that Jewish Israelis expressed significantly more hostility
towards migrant workers than did Palestinian citizens of Israel,
although the latter were more prone to suffer from competition with
migrant workers. It was thus concluded that the attitudes of Jews are
also motivated by ‘sentiments which are entirely exogenous to labour
market competition …[and are largely explained by] the ideological
commitment (among Jews) to preserve the Jewish character of the State
…non-national workers are evaluated not only as economic competi-
tors, but also as a threat to the very essence of the social and political
order of the state and to its national (Jewish) identity’(Semyonov et al.
2002: 428). As we can see, public opinion in Israel is closely influenced
by a firm endorsement of the need to maintain Israel’s Jewish character
and the idea that migrant workers pose a threat to this ideal.
Pierre Bourdieu (1996) argued that Weber’s classic definition of the
state as holding the monopoly over the legitimate use of violence should
be supplemented by its dominance over symbolic power. With this,
Bourdieu wishes to draw our attention to the power of the state in shap-
ing the social categories through which members in the polity perceive
their own experiences as well as the actions of the state. In other words,
the state, according to Bourdieu, ‘is not only “out there”in the form of
bureaucracies, authorities, and ceremonies. It is also “in here,”inefface-
ably engraved within us, lodged in the intimacy of our being in the
shared manners in which we feel, think, and judge. Not the army, the
asylum, the hospital, and the jail, but the school is the state’s most
potent conduit and servant’(Wacquant 1996: xviii).
Israel has historically insisted on an overt representation of its Jewish
character on a symbolic level (e.g. a flag with the Star of David, a
national hymn that praises the return of Jews to Israel). Recognising
the overall dominance of the Jewish citizenry, some academics have
charged that Israel constitutes an ‘ethnic republic’(Rabinowitz 1997;
Ghanem 1998) or even an ‘ethnocracy’(Yiftachel 1997). These critics
point to the legal framework that Israel put in place to safeguard the
Jewish character of the state. Moreover, national belonging in Israel is
overwhelming determined by one’s ethno-religious identity –in other
ILLEGALITY RULES 51
words, one’s Jewishness. The validity of this ethno-religious criterion is
naturalised by the state and internalised by most Israeli citizens via a
particular understanding and teaching of the history of the Jewish na-
tion, the Israeli education system, the army, the celebration of national
festivities and Remembrance Days, and so forth.
This symbolic power, which is invested in shaping the perceptions of
Israeli citizens, leads a majority to recognise non-Jewish migrants as
invalid subjects in the Jewish state. Even when Jewish Israelis show
sympathy towards migrants, they often conceive the bigger picture in a
way that is neatly captured in the following quote from one of my
Israeli informants:
I have nothing against them [non-Jewish migrants], many of
them are very honest people who come here because they want
to take care of their poor families in their countries. But when
they come here they know they come to a Jewish state where
they can never stay. They know and take the risk involved. So
when Israel decides that they have to leave and deport them,
what do they expect? They have to go back to their countries. I’m
sorry but it’s Israel’s right. There are hundreds of states in the
world and only one is a Jewish state.
According to widespread perceptions in Israel, non-Jewish migrant
workers do not belong in Israel, and they are consequently never fully
registered as ‘real’subjects in the mindscape of Jewish Israelis. This dy-
namic is amplified in the case of undocumented migrants, who are
often seen as transgressors that disregard the law and disrespect the
national sovereignty of the state. In the eyes of many citizens, the illegal
actions and status of undocumented migrants justify the hard-line
approach of the state, including the ‘right’to use illegal methods
against them (De Genova 2002).
We can therefore conclude that the illegal but licit actions of the state
against migrant workers are by and large the result of hermetic mental
borders that are produced by the state with the use of symbolic power
and imprinted onto citizens’mindsets. Migrants that cross the territor-
ial borders of the state are often unable to cross the more impenetrable
mental borders that are firmly held by many of the recognised mem-
bers of the nation (see also Wong and Pok Suan in this volume). In this
sense, the position of many migrant workers –both legal and illegal, as
the case of the Chinese workers in Israel demonstrates –can be equa-
ted with the figure of the homo sacer, as advanced by the Italian philoso-
pher Giorgio Agamben (1998). The homo sacer is a depoliticised human
who is not a member of the political community and over whom the so-
vereignty of the state does not apply. Homo sacer can therefore be killed
52 BARAK KALIR
with impunity, but not sacrificed. It is the non-belongingness and exter-
iority of homo sacer that allows recognised members in the polity to re-
assure themselves (or hold to the illusion, as Agmben would have it)
about the link between membership in a political community, a regime
of rights, and territorial sovereignty.
The greater the overlap in the attitude towards migrants between the
state’s formal approach and people’s social perceptions, the greater the
chance that the state will enjoy undisputed legitimacy as it acts against
migrants, even in an illegal and inhumane manner. Yet a total overlap
hardly ever exists, not even in the extreme case of the Israeli state.
Many Israeli civil society actors clearly managed to escape the symbolic
power of the state and persistently fought to change Israel’s exclusion-
ary, exploitative and often illegal treatment of migrant workers. These
actors used Israel’s democratic characteristics, which included freedom
of association, freedom of speech and the government’s accountability
to Israeli laws and international conventions. Astutely, civil society
actors compared the Jewish history of ethnic persecution with the situa-
tion of many non-Jewish migrant workers in Israel. This dreadful con-
trast effectively touched upon the very sensitivity that had historically
led most Israeli politicians to vigorously establish and closely protect
the Jewish state. Consequently, it led many liberal as well as right-wing
conservative politicians to amend existing regulations and to even sup-
port the legal incorporation of certain non-Jewish migrants as citizens
of Israel.
Notes
1 This work is part of the ‘Illegal but Licit’research programme, which is financed by
the Netherlands Organisation for Scientific Research (NWO). For my research project
within this programme, I conducted a non-consecutive ethnographic fieldwork over a
period of nine months among Chinese workers in Israel in the years 2006 to 2010.
During these years, I also made four field trips to China, each for a period of around
two weeks, for visiting potential migrants to Israel as well as deportees and returned
migrants from Israel.
2 http://www.chinaembassy.org.il/eng/ (accessed on 12 May 2007)
3 A small number of around 100 Chinese ‘chefs’are recruited for work in kitchens of
Israeli-owned Asian restaurants. In this article, I do not refer to this group of
Chinese, who are significantly different in their characteristics and employment con-
ditions in Israel.
4 There are, however, several cases in recent years of mixed marriages between Israeli
men and Chinese women.
5 For how this non-assimilative inclination led some Chinese to seek a conversion to
Christianity –and not Judaism –while in Israel, see Kalir 2009.
6 When speaking of an informal migration industry, one should not immediately envi-
sage underground operations carried by the Mafia. As Thunø and Pieke (2005: 487)
inform: ‘no convincing evidence, however, exists that well-organised Chinese triads or
ILLEGALITY RULES 53
gangs are the primary masterminds and main operators behind smuggling or traffick-
ing of Chinese migrants’(see also Chin 1999; Pieke, Nyiri, Thuno & Ceccagno
2004).
7 I disregard here a small number of Chinese who enter Israel as tourists and remain
to work illegally, and an even smaller number who get smuggled into Israel from the
border with Egypt.
8 See Internal Report for the Israeli Parliament 2002.
9 In 2006, the law was amended to allow recruitment companies to charge workers a
fee of up to US$ 700.
10 The eagerness of the Chinese to go to Israel must be seen in the wider context where-
by much higher prices (sometimes of around US$ 100,000) are paid by Chinese in
order to get to other, more attractive migration destinations like the US and the UK.
11 Interview by author, Israeli Consulate in Beijing, China, December 2007.
12 Some employers asked their workers to pay them as much as US$ 500 for the renew-
al of visas each year.
13 It might even be that the public does not overtly legitimise the state actions vis-à-vis
undocumented migrants, but by not voicing contempt, expressing rejection or mobi-
lising resistance, it nonetheless connives with these actions.
54 BARAK KALIR
