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High Court approves detention of asylum seekers without charge, but only for 12 months

The High Court of Justice capitulates to the threats of Israel’s right wing and approves the prolonged detention of asylum seekers.

By Haggai Matar

African asylum seekers jailed in the Holot detention center protest behind the prison's fence, February 17, 2014. (Photo by Activestills.org)

African asylum seekers jailed in the Holot detention center protest behind the prison’s fence, February 17, 2014. (Photo by Activestills.org)

Israel’s High Court of Justice approved on Tuesday the third and latest version of the Prevention of Infiltration Law, after it struck down the two previous versions passed by the Knesset. In doing so, the justices have approved the law, which would see asylum seekers who reached the country temporarily jailed for three months, while limiting imprisonment at the Holot detention center — for all asylum seekers — for a period of a year, rather than a year-and-a-half.

In her opinion, President  Justice Miriam Naor wrote that she believes the state when it claims that detention in Holot is not an attempt to “break the spirit” of the asylum seekers and cause them to leave the country. Following the announcement of the rule, Culture Minister Miri Regev said that she hopes the decision will not harm the “infiltrators’ return to their home countries.”

However, Naor found that the detention period of 1.5 years to be unreasonable. Thus the justices rejected the clause regarding the length of detention, giving the state six months to come up with a new one. Until then, detention in Holot will be limited to one year.

The decision will likely directly affect the nearly 2,000 asylum seekers currently in Holot, who will be made to remain there (aside from those who have been in the detention center for over a year, who will be released), and many others who have either received or will receive summons to Holot. As opposed to claims made by the right, the effect on the residents of south Tel Aviv — where the vast majority of asylum seekers are concentrated — will be minimal as long as the government refuses to implement a proper policy for dealing with asylum seekers. After all, Holot can only hold 3,000 people, despite the fact that there are tens of thousands of asylum seekers in Israel.

Tuesday’s ruling comes on the heels of continuous threats from Israel’s ministers, headed by Justice Minister Ayelet Shaked, against the High Court. The ministers have openly stated that should the High Court reject the law for the third time, the government would push legislation that will limit the court’s ability to intervene in legislation. Moshe Kahlon’s Kulanu party has already announced that it would oppose such legislation, but with a coalition so narrow and fragile, it is difficult to say whether or not such a law has a chance of passing.

It is difficult to know for sure how much of an effect these threats had on the justices. But the fact is that after they rejected the previous iterations twice — both of which were not fundamentally different than the current one — this time the justices capitulated and let the government continue with its policies of detention.

Who is responsible for south Tel Aviv?

On Tuesday Justice Minister Shaked took to Facebook to state that should the justices reject the law, it will be akin to declaring south Tel Aviv “an official detention center for infiltrators.” Let’s remember that it wasn’t the High Court of Justice who put asylum seekers on buses from the border with Sinai and drove them to Tel Aviv’s Central Bus Station — it was the government. It wasn’t the High Court that led to the extremely difficult living conditions that have plagued south Tel Aviv for years.

Opposite a pro-refugee rally, residents of south Tel Aviv protest the presence of African asylum seekers in their community, Tel Aviv, May 2, 2015. (Photo by Oren Ziv/Activestills.org)

Opposite a pro-refugee rally, residents of south Tel Aviv protest the presence of African asylum seekers in their community, Tel Aviv, May 2, 2015. (Photo by Oren Ziv/Activestills.org)

But even in the previous version of the law, the justices recommended that the government take on a policy of spreading the asylum seeker community in different parts of the country. This policy has been deemed acceptable to many veteran residents of south Tel Aviv, as well as human rights organizations, some left-wing parties and a number of asylum seekers. In short, there is no direct link between detaining asylum seekers and the future of south Tel Aviv, which is in desperate need of an immediate solution by the government. This solution is necessary for both veteran residents as well as asylum seekers — especially in the wake of the High Court’s ruling.

What’s the difference?

The High Court rejected the previous two versions of the anti-infiltration law that were passed by the Knesset in an attempt to regulate the detention of asylum seekers. Last time, the justices ruled that detaining asylum seekers who cannot be deported for an indefinite period is unconstitutional.

In its current iteration, which was passed in December 2014, the Knesset decided to limit the jailing of newly-arrived asylum seekers to Saharonim prison for a period of three months, while detaining those who have been here longer in Holot for 20 months.

Although the state tries to present Holot as an “open detention center,” and despite the fact that the number of roll calls per day has been reduced from three to one, Holot does not allow these people to lead normal lives. The detainees there complain of poor food, of being stuck in the middle of the desert and of having no way of getting to work or studies.

The human rights organizations that petitioned the law claimed that the new version of the law does not essentially change the problems that arose with its previous versions, specifically the jailing of asylum seekers for long periods of time in order to pressure them to leave the country. Meanwhile, the state itself recognizes the fact that it cannot deport them, and is well aware of the danger that awaits them should they be returned to their home countries.

The state, however, also claims that the changes made in the current law are dramatic, as they reduce the detention period and provides more liberties to those jailed in Holot.

This article was first published in Hebrew on Local Call. Read it here.

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    1. Ben

      Ayelet Shaked is repugnant. This is the face of Israel? This is what Israel has become?–where the Justice minister behaves so?:

      http://www.haaretz.com/opinion/1.670865

      ‘Justice Naor stressed that the Holot detention facility was not the solution she had envisioned when she suggested – in the first verdict on the Infiltration Law amendment – an alternative facility to imprisonment.

      She cited from that first verdict this week: “This could have been the state’s finest hour, finding humane solutions in keeping with international law despite the reality foisted on it.” But the state chose the merciless way and sponsored legislation – three times – that enables imprisoning asylum-seekers without trial.

      Despite Naor’s disappointment, the High Court panel she headed chose to intervene only in the matter of the length of internment in the Holot facitlity. It did not stipulate that imprisonment in the facility itself is wrong. Reducing the maximum incarceration in the detention center from 20 months, as it was until now, to 12 months is cold comfort.

      This comfort is even colder in view of the belligerent incitement campaign launched shortly before the verdict by no other than Justice Minister Ayelet Shaked. Writing on her Facebook page, Shaked announced that, in anticipation of the court’s ruling, she would post video clips every two hours showing the plight of residents in south Tel Aviv due to the presence there of asylum-seekers. She posted a clip showing a black man beating a woman – which transpired within minutes to be a clip filmed in Turkey.

      That’s an example of the superficial, shabby incitement practiced by some ministers, who behave like the worst cyber thugs. In a law-abiding state, a justice minister who tries to intimidate the court with lies and racist urban legends would be forced to resign.’

      Reply to Comment
      • The piece you site quotes Chief Justice Naor saying

        “This could have been the state’s finest hour, finding humane solutions in keeping with international law despite the reality foisted on it.”

        This is cowardice, likely of an internal Court kind. All of Holot is derivative of the State’s refusal to hold asylum hearings in a regular fashion. That’s why this new version of the law should have been stricken; it incarcerates, then releases inmates, if they don’t bail and accept deportation, to the exact same situation as before. The Court should have stricken detention fully because inmates are be detained not for any crime, but only because the State refuses to honor the Refugee Convention as directed by a much earlier Court decision. The only rational basis for detention in Holot is pressure to leave Israel, and that Naor says elsewhere is impermissible. So the Court has decided to pretend that somehow a period of 12 months is not to that end. The Court is agreeing to a lie. It is caving. By forcing the Knesset to alter the law in 60 days to comport with this year time limit the Court face saves a semblance of independence. Actually, too many Justices are afraid to stand up and assert judicial autonomy. And this is why Justice Minister Shaked tweets racist fears over Holot and refugees. The Administration is right populist. The Court is unwilling to stand fully against this.

        This is why I now believe Court intervention will be weaker. Holot was a crucial case, unrelated to the Conflict, but related to racism and State breach of law. The Court is backing off from gambling its full power.

        Reply to Comment