Israel's High Court Rejects Part of Third Anti-infiltration Law

Judges rule 20-month detention of illegal migrants disproportionate; give Knesset 6 months to revise the amendment.

Ilan Assayag

The High Court of Justice on Tuesday ordered the release within 15 days of some 1,200 of the 1,700 asylum-seekers being held at the open detention facility in Holot. The 1,200 have been in the facility for a year or longer, which the court ruled was excessive.

The nine-justice panel also ruled 8-1 that the maximum period asylum-seekers could be held in Holot – 20 months – is too long, and gave the Knesset six months to amend the law and set a shorter maximum detention period.

“The maximum period set for residence at the facility is unconstitutional,” wrote court President Miriam Naor for the majority. Such a long period of time, she wrote, “has no parallel in comparative law.”

“A person’s freedom is the basic foundation of his life and existence,” the ruling continued. “Depriving him of it, even if only for a day, substantially harms his rights. ... It must be remembered that these are infiltrators who can’t be deported from Israel and who represent no concrete danger to the state’s security or the lives of its citizens. Their only sin was entering our borders illegally, something for which the state as a rule isn’t entitled to punish them.

“As a citizen, I’d be happy to see my country have more compassion,” Naor continued, recalling that in her ruling overturning the previous version of the law, she had urged the government to find “humane solutions that accord not only with international law, but also with the Jewish worldview.” Even with the changes incorporated in the current law, Holot “is not what I had in mind when I wrote that.”

The court was ruling on a petition against the third version of an amendment to the Prevention of Infiltration Law, which allows for the detention of asylum seekers. The court previously rejected in sweeping fashion two previous versions of the law. 

In its ruling on Tuesday, even while it ordered the release of most Holot detainees and instructed the Knesset to reduce the maximum period of detention, the court in fact upheld most sections of the latest version of the law, and by a vote of 9-0. The justices also approved the section of the law that allows newly arrived asylum seekers to be held for three months at the Saharonim Prison.

Prime Minister Benjamin Netanyahu, focusing on these aspects of the court’s ruling, expressed satisfaction with it. “The position of the state was accepted in principle by the court, which ruled that there is no coming to terms with the phenomenon of illegal infiltration of work migrants, and approved the incarceration of infiltrators for the purpose of achieving the necessary deterrence. Otherwise, the ruling will be studied and the state will act to implement it,” Netanyahu said in a statement. 

The petition against the law was filed by several human rights groups. In a statement jointly released after the ruling, they said, “The court made clear today, for the third time, that this time, too, the legislator didn’t engage in enough thought and thorough discussion before ordering thousands of people to be deprived of their liberty.” 

The main changes in the current version as compared to the last one were limiting how long asylum seekers could be held at Holot (previously, they could be held indefinitely); eliminating two of the three daily head counts, most importantly the noon one, which had effectively prevented residents from leaving for the day; and softening a provision under which residents who violate Holot’s rules can be sent to Saharonim without trial, by reducing the maximum duration of this penalty from a year to four months.

This time around, all nine justices – Naor, Zvi Zylbertal, Salim Joubran, Esther Hayut, Hanan Melcer, Neal Hendel, Uzi Vogelman, Isaac Amit and Yoram Danziger – voted to uphold most of the law, although seven had sat on the panels that overturned the two earlier versions. The decision to overturn the 20-month time limit was approved 8-1, with Hendel dissenting, saying the entire law should have been approved as is.

Naor wrote that “suitable changes” had been made in the law, and most of its provisions were now proportionate, even if “sometimes just barely.”  

Nevertheless, she added, “Even though infiltration is an undesirable phenomenon, a solution that entails depriving people of their rights for such long periods of time is disproportionate.” 

Moreover, she said, it’s unnecessary, since there will presumably be a “revolving door” policy at Holot under which every released asylum seeker is quickly replaced by another. That turnover should be enough to achieve the law’s goal of preventing asylum seekers from settling down here, and therefore, “It’s possible to make do with a significantly shorter maximum period for being held at the residential facility.

She agreed with the petitioners that the length of time for which Holot residents can be sent to Saharonim for disciplinary infractions is in some cases overly long. Nevertheless, she wrote, even if these provisions “are, in my view, on the edge of constitutionality, they don’t justify our intervention in the legislator’s judgment.”

Justice Minister Ayelet Shaked criticized the court’s ruling, quoting from Hendel’s dissenting vote in favor of rejecting the petition outright and approving the newly amended law in full. “Justice Hendel was right in saying, ‘There is indeed a kind of legal dialogue between the court and the Knesset, but it is not a dialogue between partners in the same role. Each entity has a different purpose and authority.’ He was sincere in adding that ‘the dialogue between the court and the Knesset is flawed,’” stated Shaked.

She is now liable to press forward with legislation that would enable the Knesset to override High Court rulings. Shaked had worked to pass such legislation in the previous Knesset despite the vehement opposition of Attorney General Yehuda Weinstein.

Just hours before the court was to rule yesterday, Shaked warned against invalidating the existing legislation.

“The version of the law that was approved by the Supreme Court last time was too soft. Proof of this is that in recent months, the phenomenon of [migrant] infiltration, which we had almost overcome, has returned, and dozens of Africans have infiltrated Israel,” Shaked wrote on her Facebook page Tuesday morning. “If the law is struck down a third time, this would be a declaration that south Tel Aviv is the official facility for accommodating infiltrators.”

Shaked added that every two hours in advance the High Court ruling, she would post “videos describing the intolerable lives of south Tel Aviv residents.” At first she shared a video clip entitled, “A Sudanese refugee attacks a girl in the heart of Tel Aviv,” but surfers commented that the clip was not even shot in Israel, and Shaked quickly removed it. Instead she posted a different video, called “Insanity in Neveh Sha’anan – a female infiltrator attacks activists.”Barak Ravid contributed to this report.