Migrants wait outside Saharonim
Asylum seekers wait outside Saharonim prison for the bus to take them to the Holot facility. Photo by Eliyahu Hershkovitz
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“This could become Israel’s finest hour, in which, within the context of the reality imposed on it, the state has managed to find humane solutions that accord not only with international law but with Jewish values.” Thus wrote Miriam Naor, the Supreme Court’s Vice President, in a ruling in which the High Court of Justice unanimously struck down an amendment to the Infiltration Law, which allowed the incarceration of asylum seekers for three years without being brought to trial.

Regrettably, the government, under the guidance of Interior Minister Gideon Sa’ar, decided not to follow the guidelines set out by the High Court. It dragged its feet in the implementation of the injunction to release within 90 days inmates held at the Saharonim prison, ending up freeing less than half of them. At the same time it initiated new legislation, purported to be more proportionate than the earlier amendment, but which is in effect more stringent.

Although the detention period in Saharonim has been shortened to one year in the law’s new version, this applies only to new asylum seekers. At the alternative Holot installation detainees can be held indefinitely. Despite its friendlier-sounding name, this center, given its location, management by prison authorities and the requirement for roll calls three times a day, is not really different from a prison.

In its earlier ruling the court noted that it was wrong to imprison asylum seekers and to treat them as criminals, when their only transgression was to seek asylum, and when there is no possibility of returning them to their countries of origin. The justices stated that their imprisonment as a means of deterrence for others wishing to come to Israel is a harsh infringement of their human rights. The communal protection that the state claims it affords asylum seekers from Sudan and Eritrea, as required by the principle forbidding their expatriation, completely unravels when Israel itself becomes a country which endangers their freedom.

The court will hear a petition against the new law on Monday. Sa’ar and MK Miri Regev, who heads the Knesset Interior and Environment Committee, tried using scare tactics in a debate held last week. Sa’ar stated that the “High Court will not set polices, the government will.” One can trust the justices to act according to the traditional Jewish injunction which states that “in places where there are no (righteous) men, you must strive to be one.”

The court should clarify yet again to the Knesset and government that it is unjust to imprison innocent people in order to deter others from coming, whether for one year at Saharonim or without any time limit at Holot. The High Court should once again determine that the Infiltration Law not only inflicts critical damage on local and international laws relating to human rights and those pertaining to refugees, but also on the most basic human norms of decency and conscience.