Israel’s New Migrant Detention Law: A Grave Violation of Human Rights

The Knesset’s third version of an amendment to the anti-infiltration law is likely to suffer the same fate as its two predecessors.

Eliyahu Hershkovitz

Wednesday is Human Rights Day, which marks the United Nations’ adoption of the Universal Declaration of Human Rights on December 10, 1948. This declaration heralded the new era of universal human rights that characterized the post-World War II period.

It’s no accident that this was soon followed by adoption of the 1949 Geneva Convention (IV), which stands at the heart of international humanitarian law aimed at protecting civilians in wartime, and the 1951 Refugee Convention.

Human rights, protecting civilians in wartime, and protecting refugees and asylum seekers were supposed to serve as the basis for protecting humanity in this new era.

It’s hard to think of a more wretched statement of the Knesset’s desire to abandon this vision than Monday night’s passage of a third incarnation of the amendment to the anti-infiltration law.

The High Court of Justice, as is well known, overturned the two earlier versions of this amendment. The first allowed asylum seekers to be imprisoned without trial for three years. The second, alongside allowing new asylum seekers to be imprisoned for a shorter period of one year, set up the Holot detention facility, where asylum seekers could be imprisoned with no time limit.

After the court ruled that this second version was “the same lady in different clothing,” the Knesset has now passed a third version. It shortens the period for which new asylum seekers can be held at Saharonim Prison to three months, and limits the period of detention at Holot for asylum seekers who are already in Israel to 20 months.

In addition, it cancels the morning and noon head counts at Holot, so that asylum seekers jailed there can remain outside the facility during the day. But they must show up for the evening head count and remain at Holot overnight.

These changes don’t correct the constitutional flaws that led the High Court to overturn the two earlier versions of the law.

The second time around, it noted it had no choice but to overturn the law, because the new version suffered from the same constitutional flaws as the version it overturned the first time.

“The attorney general always keeps one eye on Geneva,” said MK Miri Regev (Likud), who wasn’t happy with the fact that he opposed her desire to have the third version permit an even longer period of imprisonment than was permitted by the law actually adopted last night. Thus, to Regev, upholding human rights and international refugee law has turned into an issue of “keeping one eye on Geneva.”

The AG should have warned both the Knesset and cabinet that any amendment that once again permits asylum seekers to be jailed without trial is unconstitutional.

It’s important to recall what Justice Uzi Vogelman wrote in the court’s verdict the last time around. The question, he said, “isn’t solely quantitative – what is the maximum constitutional length of time for detention in custody – but whether it’s permissible to detain someone in custody for whom there is no effective deportation procedure. To this question I respond – as this court did before me in a wide-ranging ruling – absolutely not.”

The current law continues to allow the imprisonment of foreign nationals that Israel has no intention of deporting.

The changes in Holot don’t change the facility’s nature: Given its location, the ban on asylum seekers working outside it, and the fact that it is run by the Israel Prison Service, it is still a kind of jail – even if called by another name.

In the two previous rounds, the justices lifted the veil on the hypocrisy of the government’s policy on this issue. On one hand, Israel recognizes the fact that most of the population to which the law will apply – Eritrean and Sudanese nationals – cannot be deported back to their own countries.

When Israel recognizes that the principle of non-refoulement, which bars deporting someone to a place where his life or liberty will be endangered, applies to Eritrean nationals, and also recognizes the fact that Sudanese nationals can’t be deported back to their country, yet on the other hand imprisons them in an effort to drive them out of the country, it is attempting to hold the stick by both ends – to look as if it isn’t violating the principle of non-refoulement, yet to deny the asylum seekers appropriate treatment.

On the very day it dissolved itself, and on the eve of Human Rights Day, the Knesset has left us a third version of the law that enables people to be imprisoned without trial – an extremely grave violation of human rights whose unacceptability should have been clear. And as I wrote regarding the first and second incarnations of this legislation, this third version also is destined to be overturned by the High Court.