Analysis |

Israel Can Imprison African Migrants, but Not Their Souls

The state’s policy toward African migrants is in contempt of court.

Aeyal Gross
Aeyal Gross
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Aeyal Gross
Aeyal Gross

The asylum seekers’ march to Jerusalem from the “open detention” facility in Holot should be seen as a substantive implementation of the law rather than its violation: In the face of the state’s failure to uphold its moral and legal obligations toward the asylum seekers and its contempt for the High Court of Justice’s ruling on their situation, the marchers embodied the substantive spirit of both the rule of law and the verdict.

Therefore, Prime Minister Benjamin Netanyahu’s statement that “we’re determined to enforce the law” on this issue sounds hollow, coming as it does after the numerous efforts the state has made to avoid upholding the law. “Law is law,” Netanyahu said, and “the law applies to everyone.” But in its behavior toward asylum seekers and refugees, the state is the one that isn’t upholding the law. It isn’t complying with international law on this issue, and since the High Court ruling three months ago, it also hasn’t been in compliance with Israeli law.

The High Court ruled that a law allowing asylum seekers to be imprisoned without trial for up to three years was unconstitutional, and it ordered the state to immediately begin releasing all 1,700 asylum seekers jailed in the Saharonim facility. But as of a few days before the end of the 90-day deadline set by the court for completing this process, only about 700 had been released.

The state dragged out their release in order to pass a new law, which in many respects is worse than its predecessor: It enables asylum seekers to be imprisoned for an unlimited period of time in the Holot facility, which is a jail in every respect aside from its name. And all of those who hadn’t yet been released despite the verdict were transferred to that facility. Moreover, the law allows any new asylum seekers who reach the country to continue being imprisoned in Saharonim for up to a year.

The new law doesn’t merely bypass the High Court. It seeks to make a mockery of the verdict via tricks such as shortening the period of imprisonment in Saharonim from three years to one on one hand, while building a new facility for imprisonment of unlimited duration on the other.

“This could be the state’s shining moment, one in which, in the situation forced upon it, it will be wise enough to find humane solutions ... that accord with international law,” wrote Justice Miriam Naor in the court’s ruling. Instead, the state has chosen to pass a new law that is also destined to be overturned, and to evade implementing the ruling.

The one demonstrating contempt for the law, and against whom the law must be enforced, isn’t that group of asylum seekers, but the government of Israel. The asylum seekers who marched sought to realize the vision expressed in the ruling by Justice Edna Arbel: “The lives of some 1,750 people are likely to change from imprisonment with no solution to freedom and hope for the future.”

Their march to freedom and hope, carried out in the bitter cold after they had already spent long months in jail, proves – despite the fact that it was ultimately halted – that the state can imprison the body, but not the soul that longs for freedom.

African migrants walk on a road after choosing to permanently leave their open detention facility, which began operating last week in the southern Israeli desert December 15, 2013.Credit: Reuters

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