Just three months after the last time Israel's High Court of Justice struck down the amendment to the law on illegal entry into the country, which had permitted asylum seekers to be incarcerated at the Holot facility for 20 months, a draft of another bill published by the Interior Ministry makes a mockery of that ruling.
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In 2014 the High Court struck down the law that established the Negev detention center and allowed asylum seekers to be held there for an unlimited period, and in August it handed down yet another decision against the 20-month incarceration period without trial, deeming it to be "not proportional." Now comes the draft legislation, calling for incarceration of asylum seekers for 18 months.
When the High Court ruled this past summer that until new legislation is passed the maximum period of detention at Holot would be limited to 12 months, it seemed that the court was hinting as to what it would consider a maximum incarceration period which would meet its standard of “proportionality.” The new proposal tries to make a "detour" around the 12 months, determining that asylum seekers already in Israel can be sent to Holot for one year, but that term can be extended by another six months “for special reasons, to be listed.” Moreover, new asylum seekers who come into the country after this law goes into effect, according to the draft legislation, will be detained at Holot for the maximum of 18 months.
The new bill, which shaves only two months off the previous 20-month detention period, should also no doubt be declared invalid by the High Court. But it also shows the problematic nature of the court’s decision to deal again and again with the matter of what is proportional, and to avoid handing down a ruling that unequivocally states that imprisoning asylum seekers without trial is in any case invalid.
The court has in the past expressed doubts as to whether the law in question was enacted “for a proper purpose,” but in the end it struck down three versions of it, based on the argument that it failed the proportionality test. This allows the Knesset to repeatedly pass new versions of the law, claiming that a shorter period of incarceration is proportional.
The text of the draft explains that longer incarceration is a means of discouraging potential asylum seekers (or “infiltrators,” as they are referred to) from coming to Israel. Thus the state openly admits that the law is basically using asylum seekers already in the country as a means of deterring others from coming here. When a person who has done nothing wrong is imprisoned in order to deter others, this is using the person as a means and it seriously impairs the right to human dignity enshrined in Israel's Basic Law on Human Dignity and Liberty.
In the ruling handed down in August, Supreme Court President Miriam Naor wrote specifically that deterrence of additional asylum seekers in and of itself is not a legitimate purpose for depriving such people of their liberty, although it is not invalid when it is secondary and follows from another purpose that can be seen as legitimate. In that case, the court noted that “prevention of asylum seekers from settling down” in the centers of major cities is a legitimate purpose.
But the current draft legislation states clearly that its purpose is to deter other asylum seekers from coming to Israel.
In addition, in the last round in the High Court, Justice Naor rejected the petitioners’ argument that there is another illegitimate goal to the law: “breaking the spirit” of the asylum seekers to encourage them to leave Israel. She did so because the state denied that this was the actual purpose of said legislation. Meanwhile, however, more and more evidence is coming to light that this is indeed one of the purposes of the law. Among other things, this is reflected in remarks by then-Interior Minister Gilad Erdan, who wrote at the time of the ruling that the objective of the law is to “determine a period that would create for them (asylum seekers) an incentive to return to their countries of origin and not settle in [Israel's] cities and neighborhoods.”
These remarks joins many others in the same spirit, but the High Court held in its ruling to the statements by attorney Yochi Gnessin, representing the state, that “certainly, certainly, certainly” this was not the purpose of the law.
Since then, it has emerged that certainly, certainly, certainly the legislation in question is indeed intended to break the spirit of asylum seekers to make them leave the country and deter others from coming – purposes declared invalid by the last court ruling.
The question is whether in the next round the court will be courageous enough to state clearly and unambiguously that these are the purposes of detaining asylum seekers and that these purposes are invalid, or whether it will continue dealing with the issue of what is proportional, thus missing the real heart of the problem.
The latest draft legislation makes things worse for asylum seekers in several areas. It proposes that courts will not be able to give temporary relief by delaying a detention order other than in exceptional cases “to be determined.” This is an extraordinary constraint on judicial authority to delay a step that deprives a person of liberty, and a breach of the Basic Law on Human Dignity and Liberty.
As if that is not enough, the draft also proposes doing away with the clause that a parent supporting a minor child will not be sent to Holot. It also proposes an extension of the time asylum seekers can be sent incarcerated at Saharonim Prison if they leave Holot or do not report there as ordered to do so.