Israel's High Court Must Annul Law Permitting Detention of Asylum Seekers Without Trial

The High Court has already struck down two similar amendments because they seriously undermined the right to liberty. The fact that this hearing is taking place is shameful.

African asylum seekers at the Holot detention facility in the Negev.
African asylum seekers at the Holot detention facility in the Negev.Credit: Eliyahu Hershkovitz

The High Court of Justice will this morning, for the third time, hear petitions against an amendment to the Prevention of Infiltration Law that permits the detention of asylum seekers without trial. This version of the amendment was passed after the High Court struck down two similar amendments because they seriously undermined the right to liberty. That this hearing is taking place is shameful, both because Israel is still denying the asylum seekers their freedom, and because the court is being forced to address the issue yet again after its two previous rulings.

“The rulings of this court are not recommendations,” wrote former Supreme Court President Dorit Beinisch. But when it comes to the incarceration of asylum seekers, the Knesset and government barely even related to the rulings as recommendations. After the first annulment in September 2013, another amendment was passed that shortened the detention period in Saharonim Prison and determined that only new asylum seekers would be detained there, while in Holot, asylum seekers already living in Israel could be held indefinitely.

After that amendment was struck down in September 2014, the third amendment was passed in December. This amendment shortens the period of incarceration in Saharonim even further, and limits detention in Holot to a period of 20 months. The new amendment also allows the asylum seekers to remain outside Holot the entire day. But when one considers that the facility is managed by the Israel Prison Service, is located in the middle of nowhere, and that its residents are still forbidden to work, this is still a denial of freedom to people who have done nothing wrong.

As was demonstrated when the Holot residents were left to freeze with no heat three weeks ago, detaining them there is a cruel method of denying basic rights to people whose only sin is that they are asylum seekers. When asylum seekers that Israel recognizes cannot be deported are the issue, the question, as Justice Uzi Vogelman wrote during the previous hearing, is not “merely quantitative,” but whether they can be detained at all. To this he answered, “absolutely not.”

It is not a routine matter to strike down a law for the third time. But as Justice Miriam Naor noted in the previous ruling, when a new law passed by the Knesset has the same constitutional flaw as its predecessor, there is no choice but to annul it again. One assumes the High Court will once again stand guard and prevent the improper detention of asylum seekers in the spirit of Hillel’s “Where there are no men, strive to be a man.” It would also behoove the court to not allow the state to evade implementing the judgment by ordering the immediate release of all those detained in Holot.

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