Analysis: Law on Migrants' Detention Undermines Human Rights

The law being discussed by the High Court, which allows the incarceration of asylum seekers, undermines human rights for no worthy purpose and in a disproportionate fashion. It must be struck down.

Aeyal Gross
Aeyal Gross
Aeyal Gross
Aeyal Gross

In last week's High Court of Justice hearing on a petition challenging the amendment to the Prevention of Infiltration Law, which lets asylum seekers be held for three years without trial, state counsel Yochi Gnessin argued that Eritrean migrants were to be deported in an arrangement reached with an unnamed third country, and that deals with two other countries were pending.

This argument does not detract from the fact that the law being discussed by the High Court needs to be overturned.

Some 2,000 men, women and children have been detained under this amendment, some of them for a year. It turns being a refugee and seeking asylum into crimes - crimes carrying a punishment of unlimited length, which undermines the principles of the 1951 Convention Relating to the Status of Refugees.

One assumes that by announcing these moves in court, the government wanted to "calm" the justices by assuring them that in any case, this "problem" will be resolved, and there's no reason to worry about this unconstitutional law: Rather than incarcerating migrants for lengthy periods, we will simply be getting rid of them in one go, sending them far from our backyard.

The High Court asked the state for more details about the plan, and now it has submitted an affidavit that has more holes than facts: In the declaration, Haggai Hadas, who was appointed by Prime Minister Benjamin Netanyahu to handle this "project," and who conducted talks with several countries for this purpose, writes that Israel "obtained agreements with several countries to help the State of Israel in this matter." Hadas goes on to say that during these contacts "it was agreed that the profile of the population and the scope and pace of their arrival would be coordinated with the countries involved in the arrangement," and that "the arrangements will be implemented over a long, multiyear term."

In accordance with these countries' requests, there was a mutual commitment not to publicly identify them, nor the details of the arrangement, the affidavit said. It also notes that recently the "primary understandings" had been reached with a specific country, but details and specific steps still need to be worked out. It also says that there are advanced contacts in this context with four other countries.

While Gnessin had said in last week's hearing that the process would be gradual, now it emerges that there is no concrete agreement, but "primary understandings" with an unknown country and negotiations with others. Moreover, the arrangements will be implemented over several years. So in terms of the relevant country, the long-term, vague timeframe, and the details and conditions of this arrangement, everything remains unclear.

It must be reiterated that in any case, there is nothing in an agreement with a third country that changes the fact that this law, which allows the incarceration of asylum seekers, undermines human rights for no worthy purpose and in a disproportionate fashion, must be struck down. Moreover, we now see that even the rabbit that the state described during last week's hearing - a third country ready to take the Eritreans - isn't coming out of the hat so fast.

The convention on refugees states that no refugee can be deported except for reasons of national security or public order, and with regard to those who aren't recognized as refugees, the "non-return" principle states that they cannot be deported to a place where their lives or freedom may be at risk. Transferring them to a third country is also forbidden, unless there are solid guarantees that the third state will protect the asylum seekers and not expel them to a place where they'll be endangered.

Meanwhile, all we have is a general declaration about "primary understandings" with an unknown country and unknown terms.

Full disclosure: The writer is on the board of the Association for Civil Rights in Israel, which is one of the groups that petitioned the High Court of Justice over the amendment to the Prevention of Infiltration Law.

A human-rights demonstration by migrants in Tel Aviv. Credit: Hadar Cohen

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