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Israel's High Court nixes law allowing detention of asylum seekers without trial

Court orders the state to begin releasing more than 1,700 prisoners immediately.

Saharonim and Ktziot prisons, where 2.000 asylum seekers, including children, are held (photo: Noam Sheizaf)

In a landmark ruling, a special nine-justice panel of the High Court of Justice decided to strike down the amendment to Israel’s infamous anti-infiltration bill, which allowed the state to hold African asylum seekers in custody, without trial, for three years (and in some cases – indefinitely). The court’s unanimous decision was that the bill contradicts Israel’s Basic Law: Human Dignity and Liberty.

The amendment in the bill allowing the state to hold without trial any person who entered the country illegally was deemed “disproportionate” to the challenge posed by the entry of tens of thousands African asylum seekers to Israel. The High Court of Justice ordered the state to immediately begin releasing over 1,750 asylum seekers who are held in prison without trial – some of them minors. The release, the justices wrote in their decision, should be completed within three months. (You can read the full verdict in Hebrew here.)

Click here to read how the law was exploited by Israeli police

The anti-infiltration bill was one of the main measures that Netanyahu’s previous government (with wide support in the Knesset) put into place by in order to deter African refugees from entering Israel.

In a rare move, the United Nations High Commissioner for Refugees (UNHCR) asked to join the petition against the law as an amicus curiae (friend of the court), while groups of citizens from south Tel Aviv joined on the state’s side in defending it. Many of the asylum seekers were sent by the state to south Tel Aviv, where municipal infrastructure and socio-economic conditions were already grave. Israeli citizens in the area have since been urging the government to move the asylum seekers from their neighborhoods.

Click here for +972’s Laissez Passer blog on refugee and migrant rights

Sixty-thousand African refugees and asylum seekers are estimated to have entered Israel through the Sinai Peninsula, nearly all of them prior to the construction of a large fence on the Egyptian border. International treaties on refugees forbid Israel from deporting the asylum seekers. However, Israel refuses to examine their individual requests for asylum, forbids them from working legally or from transferring money abroad.

Since the amendment to the anti-infiltration bill passed in the Knesset, thousands of refugees have been held without trial in prisons, including pregnant women and children. Israel also began building new holding facilities for thousands more, but the construction stopped as the influx of refugees subsided due to the constriction of the fence.

Supreme Court President Asher Grunis hinted in the ruling that a shorter holding period for people who enter the country illegally could pass the High Court threshold.

Basic laws are treated by the court as the equivalent of a constitution, and have special status in the eyes of the court. However, in recent years the Supreme Court has taken a more conservative approach, and tried to avoid confrontations with the Knesset. The court has approved many controversial bills, including the citizenship law, banning Palestinians who marry non-citizens from living in Israel, the Nakba law and the Separated Communities law. The recent verdict, which is at odds with most of the Jewish public opinion, is likely to attract wide criticism from the Right and renew  attempts to limit the court’s ability to strike down Knesset legislation.

Israel puts Eritrean woman in administrative detention for buying fake work permit
Seeking asylum in Israel: Deportation without due process
Cracks in the detention regime: Refugee advocates see string of court wins 

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    1. I wish I read Hebrew. But I have enough trouble with English.

      The Nakba law was dismissed for lack of case, pushing back Barak’s universal jurisdiction doctrine, at a time when new High Court appointments were under review. The Citizenship Law was decided 7-6, and the present 9-0 decision confirms there remains strong variance of opinion on the Court. I don’t know where the Separated Communities Law stands.

      In the present case, the Chief Justice seems to be saying that the standard compromise logic of the implicit Israeli Constitution can hold: if the Knesset places a strict time limit on detention, the Court might sustain it, Knesset and Court recognizing one another’s role. Employing Basic Law in decision is easy judicial review, for the Court is chiding the Knesset to live up to its own (prior) act, and this fits with the implicit compromise logic of the “constitution.” If the Knesset strikes back too forcefully, limiting the scope of judicial review as such rather than tinkering with Basic Law or amending detention to a short time frame, what I see as the slow motion constitutional crisis of Israel will accelerate. In the US, then Chief Justice Rehnquist slapped down a Congressional attempt to curtail Miranda rights (where individuals must be informed of their rights upon arrest) as invasive of the power of the Court, although his conservative disposition might expect him to favor the opposite position as police policy. A conservative Justice may take a liberal stance (if other liberals are present) to retain Court independence.

      The underlying issue here is judicial review, and this best plays out in an area perceived of less national significance; so the Citizenship Law tilted on demographic threat from a people in perpetual conflict, while the present decision argues that the gate mediated low influx of refugees, coupled with their low absolute numbers in the country, makes indefinite detention disproportionate. The Court’s power to chide the Knesset should vary inversely with the rhetoric of national defense, in what I call the War Council constitution. Proportionality logic is an attempt to calibrate both judicial and Knesset power by real threat, with realized judicial review a compromise between the two branches. Aharon Barak has a large recent book out on the subject:

      But Barak also holds the view that the Knesset can completely devolve the Court of judicial review. The Knesset, he says, is both constitutional assembly and legislature. Although he also says once the Knesset “finalizes” the constitution it cannot change it so easily, no criterion for finality is provided. My view is that the only way out of this impasse is to absorb the Declaration of Independence as meta-constitution, removing the Knesset as a constitutional assembly. Israel declared its existence with the promise of a written constitution, and so must abide.

      In any case, judicial review has been asserted on a highly symbolic issue, but the Court has rules that this symbolism does not measure the real world “national effect” presumed by the detention law. A moderate ground for review, but a true beginning. It is up to the Knesset to make things worse for itself.

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    2. Henok Yohannes

      I’m one of those Ethiopian asylum seekers who had intered Israel and couldn’t released. But after detention of one year in custody I decided to return buck home. And what I want to say now is I’m delight when I hear the release of more than 1,700 asylum seekers.

      Reply to Comment