Their Long Walk to Freedom: Israeli Advocates Mark a Milestone in Their Battle for Asylum Seekers' Rights

The lawyers involved in the successful effort to appeal the legality of jailing asylum seekers for three years say the ruling was the only reasonable outcome – yet they are still in a state of pleasant shock.

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“Seconds after I began reading the ruling that abolished, unanimously, the [amendment to the] Prevention of Infiltration Law, I burst into tears. Several days have gone by, and I still can’t take in what happened. It seems to me that none of those who took part in the battle against the law has really taken it in ... In the meantime, though, one question keeps gnawing at me: How is it that even the most reserved and restrained of the Supreme Court justices saw something that dozens of religious court judges, District Court judges, and mainly legal advisers and lawyers refused to see?”

Attorney Asaf Weitzen from the Hotline for Migrant Workers is still overwhelmed with emotion. For him and his fellow campaigners, the petition against a recent amendment to the law was not just another routine legal procedure. During the court proceedings, none of them believed it would end in such a crushing and clear-cut ruling: Nine Supreme Court justices unanimously voted to annul a 2012 amendment to the 1954 law that had made it possible to incarcerate for three years, without trial, migrants from Africa whose only sin was crossing the border without a permit. Their decision declared that the amendment violated the Basic Law: Human Dignity and Liberty, and disproportionately impinged on the right to freedom of those to whom it was applied.

Together with Weitzen, three other lawyers filed the petition against the legal amendment in October 2012: Yonatan Berman, who until recently headed the Clinic for Migrants’ Rights at the Academic Center of Law and Business in Ramat Gan; Oded Feller, who oversees migration and legal status cases at the Association for Civil Rights in Israel; and Anat Ben Dor of the Refugee Rights Clinic at the Tel Aviv University law school. Their petition was subsequently added to two other appeals, against rulings not to release African migrants from custody, that were filed by Omer Shatz and Yiftach Cohen of the nonprofit organization We Are Refugees, plus an additional appeal entered by three private attorneys, Tomer Warsaw, Orit Ronen and Yael Rothschild.

“Even before the law was passed, it was clear to us that we would have to submit it to judicial review in some form,” recalls Yonatan Berman. “There were certainly doubts concerning the manner in which this thing should reach court, and at certain times doubts about even bringing this matter before the court, because, despite our confidence regarding the rightness of this battle both from a moral and legal standpoint, we had very grave doubts about the court’s willingness even to touch this subject,” he confesses.

Just shy of a year after submitting their petition, the petitioners read the verdict last week with exuberance. It is not every day that the Supreme Court − sitting in this case as the High Court of Justice − produces 120 pages that sanctify human rights.

“Contrary to the prevalent image of the organizations running to the courts and foiling every initiative of the state concerning asylum seekers − until now we have barely had any successes. I never imagined this would be such a crushing victory,” says Oded Feller. He notes, among other failures, the rejection of petitions against the practices of imprisoning children at the detention facility Saharonim, the prohibition on employing asylum seekers and the deportation to South Sudan.

“This ruling is called for, and legally speaking it is hard to think of another outcome,” adds Berman, “but I was surprised ... None of us is naive, and we all know the Supreme Court operates within a political context of some kind. Since the subject of asylum seekers has become a hot topic politically in recent years, it was not at all clear that the Supreme Court would hand down a verdict that adopts what, to my mind at least, seems self-evident, when it is obvious it’s going to get hit by political and public ricochets.”

In the interim, Omer Shatz had left to pursue his studies in the United States, after the High Court threw out his petition demanding that a group of Eritreans waiting at the Egyptian border be allowed into Israel. “Professionally, I lost faith in the system then. It was clear to me that the High Court ought to intervene at once,” Shatz says. He subsequently represented two women from that same group who had been allowed to enter Israel by order of the prime minister, but were then immediately taken into custody and have been held ever since − for more than a year − at Saharonim. His appeal of the ruling not to release them was added to the High Court of Justice petition that ultimately led to the abolition of the Anti-Infiltration Law. So far, the two women remain locked up.

Shatz: “The verdict [last week] surprised and delighted me. I only hope it will also be exercised. I truly hope that the government will adhere to the rule of law. There is room for some very deep soul-searching on the part of the attorney general and the State Prosecutor’s Office. They really went all out on this one, and maybe somebody there should ask himself whether every position is defensible and what [their individual] is − you have to make sure to act as a filter, not just to defend the laws.”

Sisyphean struggle

The struggle for migrants’ rights is Sisyphean and frustrating. “This is a very tough war, in which you generally lose,” explains Feller, “so that it’s successes like this that motivate you to go on.” Berman says that, “the sense of frustration accompanies nearly every moment in this work. It is hard to set proceedings in motion and hard to cope with the constantly shifting policy of the authorities. There is often also a sense of frustration at the courts themselves, which don’t always deal appropriately with what they are debating.” Then along comes a verdict like this one, which “inspires hopes that nevertheless it is possible to bring about changes, at least limited ones, by means of the judicial system.”

Among Israeli residents of south Tel Aviv, the lawyers who fought against the law are called “infiltrator collaborators,” and accused of treason and greed. “In recent years,” complains Weitzen, “there has been a very worrisome process of turning the organizations that deal with refugees into enemies of the people − into people whose sole interest is to destroy the country or make a lot of money.” In the verdict’s wake, however, he and his colleagues have garnered unexpected support: “The truth is that after the verdict there was a very surprising realignment of broad sections. Even people who had spoken out against us in the past said after the verdict that three years [of imprisonment] was excessive. We’ve seen some realigning here.”

“It greatly saddens and frustrates me,” adds Berman, “that there are people who mistakenly think that what the human rights organizations do is done out of greed, because there is no money there. Part of the choice to deal with human rights is that most of the time you will be unpopular in most people’s eyes. But that doesn’t cause me in the slightest to be any less convinced that we are doing the right thing.”

“Now there is someone else to blame and hate,” says Feller. “Neither the asylum seekers, nor us, nor the High Court justices are to blame for this phenomenon − that is, either for the distress in Africa or for the distress of those seeking asylum in the State of Israel. It is a responsibility that lies entirely with the Israeli government. It is very hard to explain our position and also very hard to be in this situation. Public discourse is being waged as a zero-sum game. Granting asylum seekers a right of some sort is immediately interpreted as taking away from the rights of Israel’s residents. But I do not accept that equation. It does not have to be like that.”

Tomer Warsaw and colleagues from his firm were the only private attorneys signed to the petition. “What motivates me first and foremost is the pursuit of justice and the wish to correct injustices of an authority, of a state, of a powerful entity, against a weak party. And it makes no difference whether it is a foreigner or a citizen. Wherever a state or an authority has done an injustice to an individual it is important to me to insist that it be redressed. So, yeah, it isn’t popular, but the issue isn’t necessarily the foreigner and the refugee, but defending a human being and an individual to whom the state is doing an injustice. The difference between me and organizations, for good and for bad, is really that I don’t take measures out of principle but rather represent the interest of individuals, people who truly are being hurt, and legal steps are needed to change the situation.”

In keeping with the High Court ruling, the state is expected to release by mid-December some 1,800 African migrants who are being held in Israeli prisons under the amendment to the Prevention of Infiltration Law. Nevertheless, the lawyers who campaigned to repeal the legislation are preparing to carry on the fight. Berman explains that he fears what is coming, “the new and creative initiatives that may yet be in store for us in coming weeks from the justice and interior ministries and certain officials in the political system ... If the state were to take the verdict seriously and rethink the whole approach that says ‘We’ll make these people’s lives miserable so they will leave’ − it might be possible to look forward to some broader change. Unfortunately, I am afraid we will not see a comprehensive change. That’s a pity, because this verdict is definitely an opportunity.”

Oded Feller hopes that all the rhetoric that raises the hope that migrants can be driven away should be replaced with an honest confrontation of the situation on the ground: “The truth is that we are left here with a few tens of thousands who are probably not about to go back to their countries in the next few years, because the governments there, in Eritrea and Sudan, are pretty unstable. No one has acknowledged this to date. The talk is constantly ‘how do we get them out of here.’ So long as they do not acknowledge that they are here for a substantial length of time, it will not be possible to begin talking about long-term solutions.”

Afriacn migrants in the Saharonim detention facility.Credit: Eliahu Hershkovitz

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