On 16 September, the Israeli Supreme Court, sitting as a High Court of Justice (HCJ), handed down a unanimous judgment quashing the 2012 Prevention of Infiltration (Amendment no. 3) Act mandating lengthy detention of asylum seekers. The HCJ set a 90-day period during which the State had to release 1,811 asylum seekers detained under the quashed amendment. The State publishes weekly updates regarding the release rate: according to the latest figures, only 538 detainees have been released to-date.
By contrast, the government swiftly proposed new legislation enabling it to continue detaining these asylum seekers before the 90-day period expires. The new bill mandates detention of new ‘infiltrators’ crossing Israel’s southern border for one year (instead of three). Several of the justices noted in their separate opinions regarding the quashed amendment that any prolonged detention used as a means of deterrence is improper, and that imprisoning people who cannot be deported is unconstitutional; hence, the critique of the quashed amendment applies mutatis mutandis.
In addition, the bill introduces indefinite detention of persons presently in Israel who cannot be refouled. Detainees will be held in an “open facility” located in the Negev desert. This legislative component is more draconian than its quashed predecessor, for a number of reasons.
The virtual halt in new entrants
The quashed amendment was introduced in January 2012, when roughly 1,000 persons crossed Israel’s southern border each month; the measures were evidently unconstitutional, but the impetus to act can at least be understood. Since the erection of a fence along the border, only 36 persons crossed Israel’s southern border between January-September 2013.The new legislation therefore appears a classic case of using a sledgehammer to crack a nut.
Explicit recognition of non-deportability
92 percent of the asylum seekers in Israel come from Eritrea and Sudan: Israel recognizes that they cannot be removed, whilst refraining from considering their eligibility for refugee status in most cases. Crucially, Israel does not grant persons who cannot be refouled complementary protection. Rather, the State operates a ‘temporary non-removal’ policy: it grants Eritreans and Sudanese ‘permit 2A(5)’ which denies them access to social security and nonemergency medical services, and does not entitle them to work.. The Entry to Israel Act already authorises detention of persons whose removal is imminent in order to secure or facilitate such removal: the proposed bill purports to detain indefinitely persons who cannot be removed.
Notably, the decision which of the Eritreans and Sudanese currently residing in Israel will be sent to the new facility will be made by the Ministry of the Interior’s appointee, without having to justify it and without clear criteria. Accordingly, individuals’ rights stand to be violated in a discriminatory manner. The aim may be that persons fearing indefinite detention will decide to leave ‘voluntarily’.
‘Open’ detention facility- a pretence
The explanatory notes suggest that the HCJ considered an ‘open facility’ as a permissible (constitutional?) alternative. However, the legislative stipulations clearly indicate that the facility will be a de facto prison. It will be managed by the Israel Prisons Authority, and the disciplinary measures and operational imperatives provided by the legislation are similar to those employed in prisons.
Detainees will be prohibited from working, and will be required to assemble three times a day in order to be counted. The facility will be closed at night, and leaving the facility for more than 48 hours requires a permit. The facility’s location in the desert, far from any civilian settlement, means that there is nowhere for the detainees to go.
The absence of judicial oversight
Section 32T of the proposed amendment authorises the borders supervisor, a Ministry of the Interior appointee, to move a detainee from the ‘open’ to the ‘closed’ facility for periods ranging up to a year as a sanction for certain transgressions. The appointee’s decisions will not be subject to judicial oversight; indeed, nor is the initial decision which persons to detain in the ‘open’ facility.
The HCJ judgment presented the State with an opportunity to reconsider its approach and devise a policy that meets the needs of the 54,000 asylum seekers currently living in Israel who cannot be deported, and addresses the hardships of the residents of south Tel Aviv (where many asylum seekers currently reside). Instead, the proposed bill purports to tackle the non-existent problem of future asylum seekers entering Israel, using present asylum seekers as a means to that end.
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.