Submitted by Yonatan Berman, founder and head of the Clinic for Migrant and Refugee Rights at the Academic Center of Law and Business, Ramat Gan, Israel.
Over the last few months, the restrictions on asylum seekers in Israel and the infringement of their most basic rights have have increased to unprecedented levels. Eli Yishai, the Israeli Minister of Interior, blatantly incites against asylum seekers and states that their presence in Israel is ‘as dangerous as the Iranian atomic bomb’, and that he will strive to ‘make their lives miserable’ as long as they are present in Israel. He is honoring these promises, as drastic steps are being taken against those currently trying to enter Israel, in the hope of deterring future asylum seekers from attempting to enter the country. Examples of these steps include erecting a fence at the Egyptian-Israeli border and refusing the entry of asylum seekers, promoting legislation that would inflict severe financial restrictions on asylum seekers, and rejecting virtually every application for asylum. But the jewel in the Israeli Government’s crown of thorns are the new practices concerning the detention of asylum seekers.
In order to understand Israel’s Detention policy, a few words must be said about its general policies towards asylum seekers. Of the approximately 60 thousand asylum seekers who have entered Israel in the past seven years through its land border with Egypt, 89% are citizens of either Sudan or Eritrea. While the remaining 11% are allowed access to Israel’s Refugee Status Determination (RSD) system (a system with a refugee recognition rate well below 1%), citizens of Sudan and Eritrea are denied such access to RSD. Citizens of these two countries may not file applications for asylum. At the same time, however, Israel implements a policy that it calls the ‘non-removal’ policy towards these two populations – while the asylum claims of Sudanese and Eritrean nationals are not assessed and are not recognised as refugees, there is a declared moratorium on their return to their countries of origin.
As a result, Eritrean and Sudanese nationals may languish for years in a legal limbo and be subject to a number of cruel contradictions – these nationals are not granted the rights they are entitled to under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol, but their presence in Israel is tolerated; they are not legally permitted to work, but the Government applies a declared policy of non-enforcement with regard to their employment; the Government, the media and the public label them with the pejorative term ‘infiltrators’ rather than asylum seekers and regard them as ‘economic migrants’, while in practice everyone acknowledges that returning them to their countries of origin would be considered a violation of the non-refoulement principle.
Until recently, once a person apprehended at the border was recognised as a Sudanese or Eritrean national, he or she would be released from detention. However, this policy has since been changed. In January 2012, the Israeli Parliament enacted the ‘Anti-Infiltration Law’. The law purports to authorise the administrative detention of so called ‘illegal migrants’ without a trial for a minimum period of three years. Only under exceptional circumstances does the law leave discretion to release a person before the end of the minimum three year period. Additionally, in cases of persons who come from countries where hostile activities against Israel are taking place, the law provides for mandatory detention even after the minimum three year period has passed. The Government begun implementing the ‘Anti-Infiltration Law’ in July, and currently about 2,000 men, women and children are held in indefinite detention under it.
At the same time, the Minister of Interior announced in late August that Sudanese nationals who had been released from detention before the ‘Anti-Infiltration Law’ entered into force will be returned indefinitely to detention facilities unless they leave Israel’s territory by 15 October.
In response to this concentrated attack on asylum seekers’ liberty, two court challenges were launched by the Clinic for Migrants’ Rights at the Academic Center of Law & Business, the Refugee Rights Clinic at Tel Aviv University, the Association for Civil Rights in Israel, the Hotline for Migrant Workers, ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel, the African Refugee Development Center, and Kav La’Oved.
The first petition, which was filed on 3 October at the Jerusalem District Court, was submitted on behalf of the organisations and six asylum seekers from Sudan, and challenges the decision to detain all Sudanese nationals as of 15 October. The petition states that the Minister of Interior’s policy would result in thousands of Sudanese asylum seekers along with their children being hunted down, arrested en masse, and detained indefinitely in extreme conditions in the desert. Included among those to be arrested would be survivors of genocide in Darfur and atrocities in other areas. The District Court issued a preliminary injunction prohibiting the arrest of asylum seekers from Sudan. A hearing has been set for October 30 2012.
The second petition, filed on 4 October at the Israeli High Court of Justice on behalf of the organisations and five asylum seekers from Eritrea who are currently held in detention, requests that the Court declare the ‘Anti-Infiltration Law’ unconstitutional and therefore void. The petition argues that Israeli and international law prohibit the detention of migrants in cases where they cannot be deported; that the administrative detention of asylum seekers, children among them, who suffered trauma intensifies potential harm and is likely to harm the health and well being of those who are detained; and that deterrence of future asylum seekers cannot justify detention.
Due to the fact that one of the petitioners is a 12-month old girl who is being held in indefinite detention, the Court was requested to hold an expedited hearing on the case. Nonetheless, the Supreme Court President, Justice Asher Grunis, allowed the State to submit a preliminary response until 22 November, and did not schedule an oral hearing. It remains to be seen how the state will react, and how the implications of this legislation will unfold.