Israel Continues Detention of African Migrants Under Another Name

Justice Ministry says new amendment creates the 'desired balance between Israel’s right to protect its borders and ... its obligation to behave in a humane manner.'

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A new amendment to the Anti-Infiltration Law, published by the Ministry of Justice as a memorandum last Thursday, would reduce the period of detention without trial of illegal migrants from Africa from three years to one. The amendment would also establish a detention center for migrants that is open during the day and closed at night.

Interior Minister Gideon Sa’ar is expected to present the memorandum to the government and Knesset within the next few weeks. It will be categorized as a temporary order, in effect for a period of three years.

The new amendment would replace a previous one, which was unanimously invalidated as unconstitutional by the Supreme Court, sitting in its capacity as the High Court of Justice, two months ago. The previous amendment allowed the incarceration of asylum seekers from Africa for up to three years.

As reported in Haaretz last week, the so-called open detention center is currently under construction at Sadot, near Ketziot prison in the Negev. It will have a capacity for 3,400 detainees, with the possibility of expansion. The Israel Prison Service, which would be responsible for operating the semi-open facility, has already expressed its reservations concerning the plan, due to its lack of experience in dealing with facilities of such a nature. Communities in the vicinity of the Sadot facility are also opposed to the plan.

The preamble to the proposed amendment states: “This legislative proposal is intended to create a more balanced arrangement that would constitute a more proportionate legal instrument and which would therefore meet the constitutional standards established in the verdict [of the High Court of Justice]. Thus, this proposed amendment to the law would create the desired balance between, on the one hand, Israel’s right to protect its borders and to prevent infiltration into its territory and, on the other hand, its obligation to behave in a humane manner toward all those who are within its borders and to protect the human rights of each and every person.”

It is further noted in the preamble that the new amendment would augment other measures, which include the fence along the border with Egypt, the establishment of an open detention center and the imposition of restrictions on the work and residential location of migrants.

In reducing the period of incarceration from three years to one, the state is basing itself on the words of Supreme Court President Justice Asher Grunis and Supreme Court Justice Neal Hendel in their verdict that invalidated the previous amendment.

In his ruling, Justice Grunis wrote: “Even under the present circumstances, there is nothing to stop the legislation of a new law that would allow for imprisonment for a significantly shorter period [than three years].” In the same ruling, Justice Neal Hendel wrote: “Under the new circumstances that have been created, I believe that it is possible to manage with a more proportionate instrument: the establishment of a ceiling for detention that would not reach or even come near three years.” The memorandum to the new amendment states that the “the downsizing of the detention period by two-thirds is undoubtedly a significant reduction.”

According to the proposed amendment, the state can incarcerate only those migrants who have entered Israel after the amendment has been approved by the government and the Knesset and has gone into effect. “A central issue,” it points out, “is the fact that the [proposed] amendment would apply only to illegal migrants who have entered Israel after the amendment has gone into effect. Thus, the goals of the legislation can be achieved while maintaining a suitable balance vis-à-vis the problems referred to in the verdict [of the High Court of Justice]. The amendment would prevent the entry into the State of Israel of new illegal migrants, would prevent the possibility of those illegal migrants settling in Israel and would also serve as a deterrent; at the same time, however, it would attempt to offer a balanced solution for the problems involved in the attainment of these goals because it would not apply to the tens of thousands of illegal migrants who have already entered the country.”

The memorandum states that migrants would reside in an open detention center that would be operated by the IPS: “The center would provide food, lodging and medical services for the illegal migrants living there, as well as other needs, and would constitute a more proportionate and less harmful instrument in comparison with alternative measures.” The memorandum stresses that the “purpose of the detention center is to provide illegal migrants with all their basic necessities but, on the other hand, to prevent them from working. Thus, the economic incentive for migrants to illegally enter, and reside in, Israel alongside illegal migrants who already reside here would be reduced, while, at the same time, there would be no need for placing illegal migrants in detention facilities for lengthy periods of time.”

The director of the open detention center would be authorized to employ the residents of the center in maintenance work and in ongoing services within the center itself, According to the proposed amendment. In accordance with the directives of the minister of public security and with the approval of the minister of finance, the residents would receive “reasonable compensation” for this work. The amendment makes it clear that there would be no employer-employee relationship between the state and any illegal migrant employed in a detention center. The interior minister would issue suitable instructions that would arrange in an orderly fashion how the migrants would leave, and then return to, the open detention center and the times of their daily roll calls. The migrants would be expected to be present for three daily roll calls at the detention center; this measure, the memorandum states, would prevent migrants from working outside the center.”

Furthermore, the proposed amendment would enable migrants residing in the center to receive a monthly spending allowance; the amount of the allowance would be determined by the public security minister with the approval of the finance minister. Residents in the center and their bags, etc., could be subjected to a physical search, without any need for a court order, by officials of the detention center authorized to conduct such searches, as well as by police officers and military personnel, on entry to and departure from the center, on public transportation vehicles or if there are grounds for suspecting that the resident may be carrying a weapon or an illegal object.

The director of the detention center would be authorized to take appropriate measures against residents who fail to meet their obligations as specified by law. Such measures would include rebuke, the issuing of a warning, the imposition of a fine and restrictions regarding departure from the center.

Any official in charge of border control would be authorized to transfer an illegal migrant to a closed incarceration facility if the migrant repeatedly fails to appear for roll call, works outside the center or endangers national security or public safety. For an initial violation of the conditions specified in the amendment, illegal migrants would be transferred to an incarceration facility for a period of three months. For a second violation, the period of incarceration would be six months, and, for each additional violation, the period of incarceration would be one year. The public security minister would appoint an individual qualified to serve in the capacity of a magistrate’s court judge as the official in charge of handling requests from the residents of the open detention center regarding the conditions of their residence in the center.

Migrant workers from Africa at the Tel Aviv central bus station.Credit: Nir Keidar

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