Quashing Legislation Mandating Lengthy Detention of Asylum-seekers: A Resolute yet Cautious Israeli Supreme Court Judgment
The Israeli Supreme Court, sitting as a High Court of Justice, handed down a unanimous judgment quashing the 2012 Law for the Prevention of Infiltration (amendment no. 3 and temporary order) which mandated near-automatic 3 year detention of ‘infiltrators’ (the judgment is presently available only in Hebrew; the petition, also in Hebrew, is available here).
As I have argued elsewhere, this legislation is incompatible with Israeli constitutional law and international refugee law. 1,750 persons are currently detained pursuant to the act, out of the 54,201 persons present in Israel who have crossed its southern border with Egypt without authorisation. These individuals qualify as ‘infiltrators’ according to the impugned legislation.
In the present ruling, a nine-judge panel held the legislation to be in violation of Article 5 of the Basic Law: Human Dignity and Liberty which forms part of Israel’s constitutional arrangement, and pronounces that ‘[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise’. The court refrained from concluding whether the legislation also violates the right to freedom of movement.
In Israel, the right to liberty is subject to a general limitation clause under the basic law (similar to, inter alia, section 36 of the South African Constitution and section 1 of the Canadian Charter of Rights and Freedoms). Article 8 stipulates that ‘there shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required’.
Applying the limitation clause, the court held that the first legislative purpose, the prevention of long-term settlement of ‘infiltrators’ in Israel, is proper. Conversely citing an earlier judgment, it held that the second legislative purpose, preventing further ‘infiltration’, is improper, as detainees are used merely as a means to an end, which violates their human dignity The court refrained from determining whether an improper purpose irredeemably ‘taints’ the legislation, and conducted the three-prong proportionality test.
The main opinion, written by Justice Arbel, reluctantly held that the legislation passes the first sub-test (rational connection), but fails the second sub-test (‘least rights-restricting means’) since, in her view, it is the completion of the fence which prevents further infiltration and there are various alternatives to detention (AtD) which include introducing a reporting requirement, or employing asylum seekers in agriculture where their residence will be employer-based. Conversely, the court’s president, Justice Grunis, asserted that these alternatives should not necessarily be considered legislative alternatives as they are executive rather than legislative acts. All judges agreed that, in the current circumstances, the legislation fails the third sub-test (narrow proportionality).
Space does not permit full appraisal of the court’s landmark judgment. I would like to offer six general observations:
First, numbers matter: the massive reduction in new entrants since the construction of a fence along the Israeli- Egyptian border has affected the legal calculus; had border-crossings continued at their previous pace, it is reasonable to assume that the legislation would have been upheld at least by some of the justices. The main judgment does not rule out reconsideration in light of changing factual circumstances.
Second, and relatedly, individualised determinations are not divorced from general perceptions: the separate opinions in the judgment diverge as to whether the state’s claim that most of the ‘infiltrators’ are not genuine refugees but, rather, work migrants should be accorded (equal) weight and, consequently, as to the prospects for modified legislation withstanding constitutional scrutiny.
Third, the potential harms of an effectiveness test: the court’s determination that the legislation is disproportionate was based, in part, on the fact that only 1,800 of the 54,000 asylum seekers in Israel are currently detained; logically, the court’s analysis can be read to suggest that, had initial plans for building a massive detention facility materialised, the legislation would have been more likely to pass at least the second proportionality sub-test.
Fourth, the power of language: the judgment is replete with references to the ‘infiltrators’ phenomenon. Notably, however, Justices Danziger and Fogelman note that they use the term ‘infiltrator’ only hesitantly.
Fifth, the limited role of refugee law: while the judgment pays occasional tribute to international refugee law, its ratio is at best supported by rather than reliant on such interpretation. Article 31 of the Refugee Convention, entitled ‘Refugees Unlawfully in the Country of Refuge’, which deals with their non-penalization, was not even mentioned once. This is hardly surprising as Israel has ratified the 1951 Convention and its 1967 Protocol but has not incorporated them into its domestic law, nor has it adopted legislation regulating asylum and refugee status.
Sixth, the unequal resort to extrajudicial empathy: the justices repeatedly caution against the (negative) social and national implications of the ‘infiltration phenomenon’ . Only Justice Hayut’s separate opinion pleas that the state dissolve the legal ‘fog’ surrounding the precarious status of Eritrean and Sudanese nationals who make up over 90 per cent of African asylum seekers in Israel (see my discussion here).
This landmark judgment presents an opportunity for Israel to adopt a sensible and humane policy towards its asylum seekers. One can only hope that, rather than attempt to modify the quashed legislation, this opportunity will be seized.
Dr. Reuven Ziegler is a Lecturer at the University of Reading School of Law. This is a version of a post previously published on the European Society of International Law Interest Group on Migration and Refugee Law.