As in Europe, Israel's Courts Must Prevent Deportations of Asylum Seekers

Even if there is disagreement over which Eritrean asylum seekers qualify as refugees, there is no dispute that under the law none may be expelled to an unsafe place.

Eliyahu Hershkovitz

In the coming months, the High Court of Justice is due to rule on the legality of the amendment to the Prevention of Infiltratrion Law that lets asylum seekers be held at the Saharonim detention facility for three months and at the Holot facility for 20 months. The amendment was enacted after the High Court annulled two previous amendments that also permitted asylum seekers to be held without trial.

At the High Court hearing and other hearings, the state denied that the facilities were designed to break the spirit of asylum seekers so they would leave Israel. But on Tuesday the truth was revealed: The state intends to imprison asylum seekers who refuse to leave Israel at Saharonim indefinitely. And under the new arrangement, asylum seekers will not be asked to declare their own free will about leaving.

Even the signing of this “free will” document was wrong for a number of reasons. First, under threat of imprisonment at Saharonim or Holot, this wasn’t exactly free will. Second, the principle of non-refoulement, which bars the deportation of anyone to a place where his life or freedom would be endangered, is violated when the state expels people without clear guarantees they will receive protection in their destination countries.

As reported by Haaretz’s Ilan Lior, asylum seekers who left Israel were sent to Rwanda and Uganda, where they did not receive proper status and protection. The principle of non-refoulement is recognized by the High Court and enshrined in both international law and Israel’s Basic Law on Human Dignity and Liberty. It’s broader than the definition of the refugee and also applies to someone who has not been recognized as a refugee but will be in danger if expelled from the country where he is residing.

The principle applies to Eritreans in Israel, even those not recognized by the government as refugees. If until now a general threat of prison hovered over all asylum seekers, now there will be a direct and concrete threat of detention for those refusing to leave. It’s ironic that Israel is denying freedom to asylum seekers in the name of non-refoulement, a principle that’s supposed to protect them from losing their freedom in another country.

The threat to detain asylum seekers whom the state wishes to expel at Saharonim indefinitely amounts to spitting in the High Court’s face and crudely ignoring its rulings that asylum seekers must not be held without trial. The fact that the attorney general consents to this plan reveals the extent to which the attorney general’s office, not just the cabinet and the Knesset, rejects the last two rounds of High Court rulings on the validity of such detentions.

But the attorney general has given his blessing to the plan, so the courts will have to be the ones to stop it. In 2012, the European Court of Human Rights struck down agreements between Italy and Libya that Italy cited in returning asylum seekers to Libya after they had reached Italy by boat. The court annulled the agreements because there was a risk Libya would return the asylum seekers to the countries from which they had fled.

In 2014, Britain’s Supreme Court struck down decisions to transfer Eritrean and Iranian asylum seekers from Britain to Italy, where they had stayed before entering Britain. The court ruled that each instance had to be examined separately to ensure that any asylum seekers returned to Italy would receive due protection. The court also ruled that the asylum seekers’ living conditions in Italy could not be inhumane or degrading.

The British Supreme Court also rejected the argument that to prevent transfer to Italy, flaws in that country’s absorption system had to be cited. It’s enough to show that the living conditions for asylum seekers are degrading or inhumane, the court said. This ruling is relevant not just to the initiative to transfer asylum seekers from Israel to Rwanda or Uganda, but also to asylum seekers’ conditions in Israel.

If the Interior Ministry does not drop the new plan, the courts will have to strike it down. This plan should be another signal to the High Court of the state’s unacceptable policy for imprisoning asylum seekers.