Israel's High Court Orders State to Justify Law Against 'Infiltrators'

Supreme Court president issues conditional order that requires the state to explain why the Law for the Prevention of Infiltration shouldn't be repealed; legislation allows the state to incarcerate migrants – without differentiating between asylum seekers, refugees and illegal immigrants – for three years or longer.

Talila Nesher
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Talila Nesher

Israel's High Court of Justice announced on Tuesday that it would issue an order nisi, a conditional order, against the application of Israel's Law for the Prevention of Infiltration meant to crack down on asylum seekers.

The order, announced by Supreme Court President Asher Grunis during an appeal hearing against the law, will require the state to explain to the High Court judges why each clause within the law should not be repealed. The state's response is expected by April 30.

The petition against the law was submitted by human rights organizations fighting for refugee rights in Israel. They are demanding the annulment of the law because they claim that it goes against one of Israel's basic laws, which holds constitutional status.

The law allows for the detention of all migrants whom Israel cannot deport, including children, for a period of three years or longer, without differentiating between asylum seekers, refugees and illegal immigrants.

Tuesday's hearing was presided over by a special three-judge panel consisting of Grunis, his Deputy President Miriam Naor and Justice Edna Arbel.

The justices criticized the state's claim that the petition lacked maturity, asserting that the state's response was insufficient.

"The topic is far too serious in practice for such claims to be made," Naor said.

"The question of whether it is allowed to hold people for such a long time in custody… is at the center of the issue and there is no way of avoiding it," she added.

The state's representative asked the judges during the hearing not to issue a conditional order against the law, but this request was turned down by the court a number of times, on the grounds that the issue calls for an order.

"Why shouldn't a conditional order be issued?" Justice Arbel asked.

The human rights groups' campaign received the endorsement of the United Nations High Commissioner for Refugees last week when the agency filed a request to join the petition as a friend of the court.

The UNHCR has a mandate from the UN General Assembly to provide international protection to refugees and to supervise the implementation of international treaties regarding the handling and treatment of refugees. The UNHCR asked the High Court to allow it to submit an amicus curiae brief in the case that was heard on Tuesday morning.

“UNHCR is seriously concerned that the Law will wrongly stigmatize and penalize, including by way of lengthy detention, persons who are in need of international protection as refugees and who are claiming such protection from Israel,” wrote the commissioner to the court. “UNHCR has a direct interest in the outcome of this petition, as it raises a number of legal issues relating to the entry, detention and removal of refugees and asylum-seekers.”

The refugee organization’s brief was a clear warning signal to the court: “UNHCR considers that the above-outlined provisions of the Law are not in conformity with international human rights and refugee law standards, including the 1951 Convention and the 1967 Protocol. Some of the provisions of the Law should not be applied to refugees and asylum-seekers, while others need to carve out exceptions to guarantee the rights of refugees and asylum-seekers.”

The changes to the law were passed by the Knesset in January 2012 as an emergency measure valid for three years with the goal of “protecting the public interest.” The amendments to the law radically changed Israel’s position toward illegal immigrants. The law now allows the state to all those whom Israel cannot deport back to their country of origin if they face a risk to their lives there. The law defines a maximum three-year period of detention after which it will be possible to consider releasing the illegal migrant.

In practice, the law does not differentiate between refugees, asylum seekers and illegal immigrants. The law also allows the state to detain children indefinitely and creates a situation where children grow up in a prison-like environment.

“According to international law, children who are seeking asylum should in principle not be detained. Overall, an ethic of care − and not enforcement − needs to govern interactions with asylum-seeking children, including children in families, with the best interests of the child a primary consideration. The extreme vulnerability of a child takes precedence over the status as an 'illegal alien,'" wrote the UNHCR.

The law also applies retroactively to those who arrived in Israel even before the law was changed. Many migrants who have temporary status in Israel are now being detained under a special procedure for those suspected of committing crimes − even though they were never convicted in any legal proceeding.

The Supreme Court has previously ruled that arresting a person to deter others is illegal and even a serious national problem is not an excuse for such an arrest; the explanatory notes to the law state specifically that its goal is to deter others from “infiltrating” Israel.

The law also does not differentiate between migrant workers and refugees or asylum seekers. All are included in a single category: infiltrator, the UNHCR contended.

“The Law creates a presumption that refugees and asylum-seekers who enter Israel illegally are ‘infiltrators,'" the agency wrote. "In this way, the Law is stigmatizing, and does not take into account the special position of refugees and asylum-seekers under international law, nor their particular vulnerability."

African migrants being held in Israel's Saharonim detention facility. Credit: Eliyahu Hershkovitz

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