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Knesset passes bill on prolonged detention of refugees without trial

Despite loud opposition, the amendment to the Prevention of Infiltration Law, which passed with a large majority, would detain asylum seekers for three years without trial, or indefinitely if they come from “enemy” countries like Sudan

By Elizabeth Tsurkov

The Knesset passed on Monday night an amendment to the Prevention of Infiltration Law, which metes out harsh punishments on Africans seeking refuge in Israel. The law passed the second and third readings in the plenum with a large majority (37-8) following a boisterous discussion.

Under the law, refugees would be held for three years in detention without trial or any charges being brought against them. Refugees from enemy states, like Sudan, would be kept in indefinite detention, although they have not been convicted of a crime. Minors arriving with family members will be subjected to the same punishment. This amendment was introduced by the government, which countered repeated attempts of opposition MKs to mitigate the most draconian provisions of the law.

The amendment does not distinguish between refugees, unauthorized immigrants or “infiltrators” with intention to harm Israel’s security. In fact, according to the law, even people who are granted refugee status or permanent residency, but entered Israel without permission, will still be considered “infiltrators.” While official Israeli rhetoric describes the refugees as “labor infiltrators,” the Israeli government does not deport most of the Africans entering Israel, recognizing or at least mostly complying with UNHCR guidelines that forbid the deportation of Sudanese, Eritrean, Congolese and Somalis back to their homelands.

The amendment is the cornerstone of a series of anti-refugee measures that have been executed and planned by the Israeli government. Other measures include the construction of a fence along the Egyptian border that will cost taxpayers NIS 1.35 billion ($360 million), the construction of a large open-air prison that will house 11,000 refugees that will cost at least NIS 1.16 billion to operate per year, and enforcement against employers of refugees. These expensive measures will be partially funded by a 2% cut in the budget of all government ministries.

The Knesset’s legal advisor, Eyal Yanon, voiced his opposition to the law, stating that it does not meet “minimal constitutional standards.” The Prevention of Infiltration Law was originally passed in 1954 as part of Israel’s emergency regulations to deal with the phenomenon of armed Palestinian infiltrators who entered Israel to conduct sabotage operations. The 1954 law criminalized the entry of all “infiltrators” from Arab countries, whether armed or not, setting their punishment to five years in prison. Currently, the application of the law is tied to the “state of emergency” (which has been in effect in Israel since independence), but the amendment would decouple the application of the law from the state of emergency. This means that even if the state of emergency is one day lifted, the law will remain in effect. In his opposition to the law, Yanon stated that using the 1954 law to deal with the tide of African refugees entering Israel “poses difficult legal problems, which we made known in past meetings with representatives of the Government.”

During the Knesset committee discussion on the bill, slight amendments were added, according to some of the reservations the legal advisor voiced. Prior to the committee vote, the law criminalized any assistance to refugees, setting a punishment of five years imprisonment for a person providing assistance to a refugee, and 15 years for a repeat offender. The committee narrowed down the application of this provision to those aiding armed infiltrators and drug and human traffickers only. Another change from the original bill removed a passage that stated that any refugee convicted even of a petty property crime would be automatically sentenced to life in prison. The Ministry of Justice strongly opposed the changes, and during the second reading in the plenum, attempted to broaden the application of the law to all refugees. However, due to the opposition of Knesset Speaker Reuven Rivlin (Likud) during the reading, the state agreed to withdraw the amendments, which means these passages apply only to armed infiltrators and human or drag traffickers.

The purpose of the long to indefinite detention periods, according to the explanatory notes, of the proposed amendment, is deterrence: “The expectation is that the detention period will stop the massive infiltration or at least minimize it.” Asaf Weitzen, a lawyer at the Hotline for Migrant Workers, insisted that prolonged deprivation of liberty without due process for the sake of deterrence does not meet the legal standards set out by the Israeli Supreme Court. Arguing that the Law of Entry into Israel is well-equipped to handle the entry of illegal migrants, Weitzen said, “This law specifically targets refugees and asylum seekers that the state is unable or unwilling to deport” due to the legal prohibition on the deportation of asylum seekers.

The law is designed to target the weakest of the groups living in Israel – survivors of genocide, civil war, prolonged servitude, torture and rape – by using a law originally intended to combat armed saboteurs. Past attempts to pass this law (which was first drafted in 2006) were foiled due to a harsh public response. However, following years of systematic incitement against refugees by Israel government officials, the Israeli public now largely sees refugees as illegal migrants, undeserving of sympathy, and as a result, this inhumane law has now become reality.

Elizabeth Tsurkov is a blogger and activist for migrant worker and refugee rights in Israel.

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    1. How can you violate “minimal constitutional standards” when you don’t have a constitution and the entity charged with telling you what those standards would be if you had a constitution, the High Court, seems completely subjugated to the will of the Knesset? If the Knesset is soverign by itself, then it may even aborgate the self imposed rule that amendment to Basic Law requires an absolute majority. What the Knesset is doing is piecemeal passing laws which individually seem unpleasant but combined affirm the absolute soverignty of the Knesset, trying to create a political culture which will affirm so.

      Reply to Comment
    2. YoavWeiss

      Great post on the details of this shocking legislation which my Knesset is passing. At least, we have the tent protest movement to fight against these injustices. Hope will prevail!

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    3. Greg, you are correct in saying that Israel does not have a constitution, but I disagree that the High Court is completely subjugated to the Knesset. For example, it’s a High Court that is currently preventing the state from fining employers of asylum seekers. Therefore, the Knesset Legal Council is correct in basing his opposition to the law on the idea that Israel has constitutional standards, which this law violates.

      There is definitely a negative trend when it comes to legislation in Israel and the diminishing power of the High Court, which feels the need to lay low so that it doesn’t attract too much attention from anti-democratic legislators. Therefore, I do not expect this law to be abrogated by the High Court.

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    4. mya guarnieri

      elizabeth: it seems netanyahu is trying to get around this?


      there are numerous other instances of the state ignoring, outright, high court rulings or legislating its way around them. i wouldn’t say that the high court is subjugated to any particular body. but i would say it’s generally pretty weak.

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    5. Philos

      I recommend to all readers to watch the film “Children of Men” by Alfonso Cuaron (http://www.imdb.com/title/tt0206634/)
      Israel has the dubious title of being at the juncture where dystopian science-fiction becomes reality. Unbelievably authoritarian…

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    6. Carl

      Sadly Israel isn’t out on a limb with this one. The attempt to dissuade asylum seekers by making life unbearable in host countries is a favourite around the world. In the UK we prevent asylum seekers without status from working or receiving any state benefits. It’s also illegal for homeless charities to offer them accommodation if I remember correctly. How they’re meant to eat, let alone house themselves legally is a mystery. Mind Australia sending refugees off to Christmas Island for ‘processing’ should surely win a prize for outright vindictiveness.

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    7. Well, Elizabeth, soverignty is eventually going to have to be defined somehow, somewhere. I know the High Court has stood up to both the Knesset and Administration in the past; but I know of no other developed country where the highest court is often ignored by the State. The net effect of laws such as the boycott, Nakba, and this one is to place soverignty in the Knesset. At the moment, the Knesset is processing a bill which would ban the use Holocaust for naught but teaching purposes–the victim, in this case, is the Ultra Orthodox, a few of which dressed in camp era uniforms to make a political point.
      One comentor at this site, Ben Israel, avoud religious and on the right, said he favors a writen constitution because the politics of the Knesset is too volatile to be trusted long term; the bill I just mentioned supports his view.
      The Knesset can alter the appointment process of Justices. Some in the Knesset think they can deny jurisdiction to the High Court by subject. I think the High Court could insulate itself, and have suggested how on this blog. What I suggest here is that this Knesset is legislating so as to make a case for its absolute soverignty. This ammendment on refugees, the writer tell us, is actually immaterial under the perpetual emergency rule the State enjoys. Its sole purpose is to contour law which at present is not evoked. Its sole impact at the moment is to assert Knesset soverignty, partly for the news media.
      I think a strong Court is possible. But one needs realize what that Court would face.

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    8. Mya, Netanyahu cannot get around the Supreme Court ruling. There are such statements and headlines every once in a while, designed to scare employers from employing asylum seekers. The only thing the government can do is make those statements, since they are prohibited from fining employers. This is also why the government didn’t rush to state that assistance to asylum seekers is not in fact punishable according to the law – they want employers to fear that this is the law and that they can be punished. And have no doubt – it worked – hundreds of employers of refugees have been calling up NGOs since the law passed to make sure that they can still employ people. But others probably didn’t call and simply fired the refugees.

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    9. Greg, you state: “This ammendment on refugees, the writer tell us, is actually immaterial under the perpetual emergency rule the State enjoys. Its sole purpose is to contour law which at present is not evoked. Its sole impact at the moment is to assert Knesset soverignty, partly for the news media.”

      This is absolutely not true. This law has severe consequences. First of all, right now Israel has to release asylum seekers from prison within 60 days (it sometimes doesn’t do so, but this is the law). Now people will be kept indefinitely in Saharonim prison, until there’s no space for them because of the incoming asylum seekers.

      In recent months, as a result of inter-Bedouin fighting in the Sinai desert, almost 1,000 asylum seekers were released from captivity of smugglers who were murdered by Salafi bedouins and from the captivity of other smugglers who got scared of being killed too. As a result, the number of people coming into Israel has peaked in the recent months and currently, people are usually released from Saharonim within two weeks because there simply isn’t enough space. However, once the fence along the border with Egypt is completed, the number of refugees fleeing into Israel is expected to drop dramatically. At that moment, people will start spending long months and even years in Saharonim, as this law allows. The construction of the holding facility/ concentration camp is moving along too. Once it is completed (it will take a while), there will be 11,000 new beds for refugees, and all the new refugees coming in will be jailed there for long periods of time. On top of that, the moment the holding facility is constructed, the Supreme Court prohibition on fining employers expires. NGOs will surely appeal again, but it could be that refugees will not be able to find work from that moment on because their employers could be fined.

      So yes, this law is not immaterial, it will ruin lives, many lives.

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    10. mya guarnieri

      with all due respect, elizabeth, do you seriously believe the israeli supreme court is so strong? there are plenty of examples of the state ignoring supreme court rulings.

      here’s an article i wrote that lists a few:

      here’s yehudit karp bemoaning how weak the supreme court is: http://www.haaretz.com/print-edition/news/former-official-bemoans-government-s-disregard-of-supreme-court-1.353406

      and here’s a nice one by jonathan cook that shows, yet again, how weak the court is and how the state ignores it: http://www.thenational.ae/news/world/middle-east/israeli-government-faces-contempt-case-for-ignoring-arab-rights

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    11. Mikesailor

      One fact, that seems to elude most, is the phrase: “Without trial”. Therefore, who decides? And if the err, for one reason or another, apparently there is no redress. Let alone that the law itself is an affront to anyone who even has a rudimentary knowledge or affinity for the concept of ‘due process of law’. It is so open-ended that anyone, even Jews, can be picked up and placed in this ‘camp’ without anyone even knowing. And with the state’s power to extort ‘gag orders’, this is a piece of open-ended legislation designed to be ‘re-interpreted’ to quash any potential dissenters. For it can be used in any way the ‘adjudicators’ wish.
      Mya: The blatant governmental practice if disregarding Supreme Court rulings has been all too well documented. One of the curious aspects is the Court’s apparent acquiescence to this practice. I have yet to hear the Court enforce its rulings, especially when ruling against government practices, by citing the malefactors with contempt. I would admit that such a move could backfire politically, but it would at least show a court willing to enforce its own rulings, and the fight would then be whether or not the Court is a viable third institution of the governmental structure. Instead, they have been shown to bend over backwards rather than confront publicly and have the well-deserved reputation of acceding to the politics of the day, no matter what the affront.

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    12. Bronxman

      Recently it was announced that Israel was preparing for the fall of the Assad regime by making arrangements to handle Alawite refugees. Can anybody tell me what the status of these people will be on entering Israel.

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    13. Elizabeth,
      I’m glad you replied and showed me wrong–to worse effect for refugees. I am not certain, though, if the law as applied will change all that much post this new law. And I note that the legal advisor to the Knesset thought the law unnecessary.
      The US Supreme Court was ignored famously by President Andrew Jackson in the Indian Removal Cases (sort of eerie, huh?). There was no direct confrontation producing Court control. The social economy of the US evolved. The Court, at first taking hard stands favoring the masters (if you will), later, preciesely because of that, could rebel against later masters. The Court turned back its own power after the Civil War by narrowly construing that era’s 14th Amendment. This is why I am not too worried about the Nakba case (although I get all fumed like others) over the long term. But Israel’s High Court is evolving in an advanced information economy, unlike the US Supreme Court of the past. Refusal to obey orders ramifies. Israel’s trajectory will be different. I see what the US avoided, a direct confrontation over judicial power, unavoidable in your land. The Court could fight creatively, but to date it does not. This may be as much because of its internal dynamics (three [or larger] Justice panels taken from a pool of Justices) which tends to prevent risky stances. Having a full set of Justices always deciding together can produce more forceful decisions, for there are no future, alternative sub groups (panels) which might act differently.
      The US had the luxury of time and immense space denied to your land. Israel will tell us something new about judicial process. In my mind, the only question is how it gets there, and at what cost.

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    14. MikeSailor,
      I believe the High Court did issue a contempt order over the IDF’s failure to move the B’lin fence (I’m getting the name wrong, I know)–to no effect. The fence has been moved, several years after the initial order and I think a year or more after the contempt order. I do not know who was targeted in contempt or what actual effect it had, if any.

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