Key Ruling |

Court Invalidates Legislation Allowing Israel to Detain Migrants Without Trial

In unanimous decision, judges say amendment to anti-infiltration law violates human rights; Netanyahu vows to respect decision and take it into consideration while continuing to 'put the brakes on infiltration'.

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The High Court of Justice unanimously on Monday invalidated the amendment to the Anti-Infiltration Law that allows the incarceration of asylum seekers from Africa for up to three years.

In its dramatic decision, an expanded panel of nine judges ruled that the law was unconstitutional and disproportionately impinged on a person’s right to liberty, as well as being in conflict with Israel’s Basic Law regarding human freedom and dignity. The court instructed the state to examine the cases of all those incarcerated under the provisions of this law within 90 days.

Prime Minister Benjamin Netanyahu, who had been a proponent of the law, said he respected the High Court's decision and would consider it accordingly while searching for a solution that would "enable the implementation of our firm policy to put the brakes on infiltration and return thousands of infiltrators" to their native lands.

"As many other countries in the world contend with the phenomena of infiltrations, we have halted it, and last month not a single infiltrator crossed over our southern border," Netanyahu said. "This result was achieved thanks the complex steps that have been taken, including the construction of a fence on our southern border. I am determined to continue to lead the government's activities in dealing with the phenomena of infiltration."

There are currently 1,750 incarcerated people out of a total of 55,000 illegal migrants. Most of them are citizens of Sudan and Eritrea.

Supreme Court President Asher Grunis wrote in his ruling that “in the present circumstances, keeping people incarcerated for up to three years, as allowed by the law, is unconstitutional. Furthermore, the state intends to keep these migrants locked up for the entire period of three years permitted by the law. Some of these people have been imprisoned for over a year.”

Grunis added that “if, God forbid, the phenomenon re-appears and massive infiltration resumes, the problem will have to be re-evaluated.” He added that the present ruling rescinds the law under the existing circumstances. “Our ruling relates to the law that allows incarceration for up to three years. Even under the present circumstances, there is nothing to stop the legislation of a new law that would allow for imprisonment for a significantly shorter period.”

Justice Edna Arbel referred to the implications of this decision for the Israeli public. “I can assume that this decision will not sit well with Israeli citizens and will be particularly hard for those living in the southern sections of Tel Aviv, whose distress sounds genuine, evoking empathy and a desire to help,” she wrote. “I would like to believe that the state will find a way to deal with the situation with the means at its disposal, so as to relieve the stress of local residents.”

Arbel said that prolonged incarceration was the easy solution, but not the correct one. This solution is “the most harmful for anyone, but particularly for these migrants who are locked up for such extended periods. Depriving these migrants of their freedom for a prolonged duration is a critical and disproportionate infringement of their rights, impacting their bodies and souls. Let us not solve one wrong by creating another.”

“We cannot deprive people of basic rights, using a heavy hand to impact their freedom and dignity, as part of a solution to a problem that demands a suitable, systemic and national solution,” Arbel added. “We cannot forget our basic values, drawn from the Declaration of Independence, as well as our moral duty towardsevery human being, as inscribed in the country’s basic principles as a Jewish and democratic state.” The judge commented that Israeli reality will not change as a result of this ruling, but it will change for those 1,750 migrants, who will move out of an unresolved impasse involving incarceration to a life of freedom and hope for the future.”

Arbel emphasized that “this issue does not involve a group of terrorists wishing us harm, but hard-pressed migrants arriving from an afflicted region, who live a life of destitution here as well. We are not oblivious to the public interest of local residents and to their claims of a loss of a feeling of personal security, as we are aware of the migrants’ impact on the economy. With that, we are convinced that the state cannot protect its citizens and its basic values while brutally harming the freedom and dignity of foreigners living in our midst. Other ways must be considered, even if they are more complex and require more patience.”

Likud MKs slam decision as 'sad' and 'insane'

Interior Minister Gideon Sa’ar denounced the decision, saying it would hurt Israel’s ability to address illegal infiltration into its territory. He added that the decision would be studied with an eye to formulating “ways to protect the national interests of Israel and its citizens, including a new alternative legislative arrangement.

MK Miri Regev (Likud) responded that “there are judges making decisions in Jerusalem, but the pain is felt in southern Tel Aviv. This decision is disconnected from events on the ground. This is a sad day for the residents of southern Tel Aviv. The Supreme Court has condemned them to a life of fear and anxiety. The decision has legitimized the phenomenon of infiltration. All the state’s efforts to reduce infiltration have been negated by this decision. The Supreme Court justices expressed empathy towards the residents of southern Tel Aviv, but these words, although coming from their hearts, are empty. These words will not change reality, but will only exacerbate it.” Regev heads the Knesset Internal Affairs Committee and spearheaded the amendment to the Anti-Infiltration law, as well as initiating other laws designed to combat the impact of illegal migrants.

Coalition whip MK Yariv Levin (Likud) termed the decision “insane, breaking all records for anarchy, and will turn Israel from a Jewish state into a state belonging to its migrants. The Knesset must bring this law forward again, putting an end to the Supreme Court’s activism, which is carried out without any authority.”

The whip of Habayit Hayehudi in the Knesset, MK Ayelet Shaked, also criticized the justices and said her party would use “all legal means available to restrain the court and strengthen the status of the Knesset, including the necessary changes in the basic laws including the Basic Law on Human Dignity and Freedom."

The Prison Service is studying the court’s decision regarding the close to 1,800 inmates held under the anti-infiltration law, 1,400 of them in the Saharonim detention center and 400 in Ketziot, and waiting for a decision by the Interior Ministry. The assessment is that their release is not imminent, since the Ministry was given 90 days to examine the inmates’ status. The legal counsel for the Minister for Internal Security Yitzhak Aharonovitch, who was among the law’s initiators, is also studying the issue and examining other ways of keeping the migrants under detention. The police, particularly those in the Tel Aviv district, believe that the law’s existence was a deterrent against criminal activity by the migrants, which has now been removed.

Netanyahu, as previously mentioned, was also among the proponents of the law. A week after it was adopted by the Knesset, he gave it his blessing at the weekly cabinet meeting: “Last week, a law was passed that allows us to arrest illegal migrants for up to three years. This changes the present reality in which they are arrested and then released within weeks, free to go wherever they please. This is an important and welcome change. It is vital for maintaining the character of Israel and for ensuring its future as a Jewish and democratic country.”

On the eve of the Knesset vote, Netanyahu decided to remove a clause specifying the government’s reservations over the intention to jail only those who assisted migrants who had committed other crimes. The government wanted to prosecute those helping any migrant.

Labor MKs praise ruling as respect for human rights

MK Shelly Yachimovich (Labor,) head of the opposition, said that the High Court had “reinstated a clear and precise national moral yardstick. The anti-infiltration law deeply contradicted Israel’s character as a democratic country. An administrative decision to detain anyone for three years conflicts with basic human rights.”

MK Nachman Shai (Labor) said that “the court’s decision returns some color to the country’s cheeks. Its decision to rescind the law forces the country to respect human rights. Infiltration to Israel must be prevented and dealt with, but this must be done while maximally maintaining the rights of those who arrive here, until they leave.” Shai added that the Justice Ministry should investigate how such a law reached Israel’s law books in the first place.

Human rights organizations and leftist circles welcomed the court’s decision.

Residents of southern Tel Aviv and commentators on the right-wing of the spectrum were very critical, however, saying that the judges had abandoned the citizens of Israel.

African migrants held in Saharonim detention facility.Credit: Eliyahu Hershkovitz

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