On September 16, 2013, a panel of nine Supreme Court justices unanimously overturned the third amendment to the government’s Anti-Infiltration Law. By doing so they waved a black flag over the state’s policy toward African asylum seekers.
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The justices ruled that the amendment – which permitted the imprisonment of asylum seekers for three years and came into force in 2012 – ran contrary to the Basic Law on Human Dignity and Freedom (1992), and ordered the release of all imprisoned asylum seekers within three months.
“We must not solve one injustice by creating another,” Justice Edna Arbel wrote in the main opinion, while Justice Uzi Vogelman wrote, “Not all means are fair in a democratic society.” Supreme Court Deputy President Miriam Naor had the future in mind when she opined, “This could be the country’s finest hour: that it wisely seeks humanitarian solutions for the situation that has been forced upon it.” It was a great victory for human-rights groups and a defeat for policy makers.
A year has gone by, and once again everyone is waiting for the Supreme Court’s nine justices to speak. The same panel, headed by Supreme Court President Asher Grunis, is expected to rule this coming week on the petition that human-rights groups submitted against the fourth amendment to the Anti-Infiltration Law.
The fourth amendment, which was written lightning fast less than three months after the previous law was struck down, reduces by a year the period of imprisonment for new asylum seekers. However, the new amendment also permitted indefinite imprisonment of asylum seekers of longer standing at the Holot complex in the Negev, to which thousands of Eritrean and Sudanese nationals who entered Israel years before the law was passed have been sent over the past nine months.
Monday will mark three months since Justice Arbel’s retirement. She will no longer be able to sign rulings after that date. If the ruling is not issued by then, another judge will have to replace her on the panel, and the decision could be postponed. If the latest version of the law is overturned as well, this will be a political and legal earthquake – the High Court of Justice has never overturned a law twice.
It is hard for either side to believe that this will be the historic first time. Still, human-rights groups are hoping that the High Court will overturn many parts of the law, mainly those related to using the Holot center. Officials of these groups say that, contrary to the spirit that had prevailed in the High Court of Justice, the policy has only grown more extreme since the previous law was overturned. On the other hand, officials of the interior and justice ministries are fairly calm. They believe that the justices will not intervene blatantly in government policy. In the meantime, nobody is preparing for the closure of Holot or for any other far-reaching changes.
The human-rights groups submitted the petition against the amendment to the Anti-Infiltration Law several days after it was written. One of the main complaints is that the purposes of the law – deterrence, preventing asylum seekers from settling here, and encouraging “voluntary departure” to Eritrea and Sudan – goes against the High Court of Justice’s ruling. “‘Encouraging’ people to return ‘voluntarily’ to these countries, and certainly when it is done by depriving people of liberty and personal autonomy, is nothing but an attempt to force them to ‘deport themselves’ to a place where the State of Israel has stated that it is dangerous to return them to,” the petition states. “If a country may not force a person to board an aircraft for a given purpose, it may not break that person’s spirit so that he will board it ‘voluntarily’ to accomplish that same purpose.”
In anticipation of the ruling, dozens of south Tel Aviv residents demonstrated this week in front of the Tel Aviv Museum of Art. Nine residents of southern neighborhoods told of how they had been victims of violence by foreigners. Among the organizers were city councillors Arnon Giladi and Shlomo Maslawi. “If the High Court of Justice is going to change the law, that will be a disaster for us,” said Maslawi. “If, God forbid, the decision should be in favor of the infiltrators, it could mean that we will be finding the infiltrators at the [border] fences once again. This time, they could also come in through the tunnels, over fences or from the Jordanian border. It would make it legitimate for all the infiltrators to come in and occupy the country.”
On the other hand, officials of human-rights groups said that even if they were successful in court, there would still be a long road ahead. “This year was the toughest year in the lives of asylum seekers in Israel,” said Oded Feller, the attorney in charge of addressing immigration and status issues at the Association for Civil Rights in Israel, and one of the petitioners to the High Court of Justice.
“Our bleakest predictions were all confirmed,” he continued. “Much tougher treatment by the enforcement units; manhunts in the streets; enormous difficulty in renewing visas, with contemptuous treatment of people who are forced to run around all over the country to renew their visas just to avoid being arrested; awful conditions at Holot, a place ruled over by despair, dreariness and hopelessness; and a rise in the forbidden practice of forced deportations of people whose lives are endangered.”
Since the law was passed and Holot opened in December 2013, Interior Minister Gideon Sa’ar (before his resignation this week) has taken pride, time and again, in the sharp increase in the number of departures of Eritrean and Sudanese nationals.
The statistics, published here for the first time, are evidence of Holot’s strong influence in the asylum seekers’ decision to leave Israel. According to figures from the Population, Immigration and Border Authority, 3,035 of 5,717 Africans (53 percent) who left Israel from December 2013 to August 2014 received an order to report to Holot, or met the criteria for receiving such an order. Of those who left, 861 (28 percent) did so after receiving the order to report to Holot, while 2,174 (72 percent) met the criteria but left before they received the summons to relocate to Holot.
About 47,000 Africans who crossed the border illegally are living in Israel. Some 35,000 of them are Eritrean citizens, about 9,000 are from Sudan and the remaining 3,000 or so from other African countries. Holot has a capacity of 3,360 people, but it has not come close to full capacity so far. According to the Israel Prison Service, about 1,650 asylum seekers are being held at Holot, and roughly 700 at Saharonim. The population authority took out 6,942 stays of proceedings by the end of August. Of these, 1,450 were annulled for various reasons, including the producing of proof that the asylum seeker had a wife or children.
The petitioners to the High Court of Justice claim that Holot is actually an isolated prison in the desert, rather than an “open complex” or a “lodging center,” as the state describes it. “The complex is fenced in and isolated from the outside world, and the people held there have no ability to reach an inhabited area or engage in daily activities such as shopping for and cooking the food they prefer, meeting with people outside the complex or attending social events,” the petition says, also mentioning the fact that the complex is run by the Prison Service.
The petitioners also criticize the “draconian judicial and punitive powers” given to Interior Ministry clerks, which include the authority to imprison asylum seekers in Saharonim for a time period of a month to a year for disciplinary infractions. The petitioners also complain that the law sets no limit to the stay in Holot, nor does it set clear criteria for receiving a summons to report there.
The state rejected the claims in its response to the High Court of Justice, noting, “The law contains an optimal balance between the interests of the State of Israel, its citizens and inhabitants, and the interests and rights of tens of thousands of inhabitants of Africa who infiltrated over the past several years.”
The state added that this harm to the African asylum seekers was “necessary and immediate” for handling the issue of infiltration. The state rejected the claim that there was only a tiny difference between complexes such as Holot and actual prisons. “Although a restriction has been placed on their right to liberty, it should not be said that this restriction is a complete denial of the right to liberty.”
The voices of the asylum seekers themselves have not been heard over the past two and half months, since hundreds of people staying in Holot marched toward Egypt at the end of June, in an attempt to cross the border at Nitzana and be resettled in third countries. The march ended with violent arrests and the transfer of hundreds of asylum seekers to the Saharonim prison. It was a breaking point for many of them.
Others still hope that the High Court of Justice will come through for them. Mutasim Ali, a Sudanese citizen and one of the leaders of the asylum seekers, has been staying in Holot for more than four months, “The situation here is depressing and frustrating,” he said. “Many people have given up. So-called voluntary departures are still going on. We realize that this is not going to end with the High Court of Justice’s ruling; it is going to take much more time. If the law is not overturned, many people will leave, even if it is not safe for them to return to their countries. At best, if the law is overturned, the government will look for a new solution. The goal of every solution that the government offers will be to make as many people leave the country as possible.”