Rule of Law: Israel’s legal headache

Does throwing African migrants in detention centers for three years without standard legal proceedings violate international law? Or is it just enforcement of Israel’s sovereign right to maintain border security?

By YONAH JEREMY BOB
Aftrican migrants pack after night in TA park_370 (photo credit: Ronen Zvulun/Reuters)
Aftrican migrants pack after night in TA park_370
(photo credit: Ronen Zvulun/Reuters)
Clarifying what international law says is a tricky business, and the controversy over the African refugees/infiltrators (depending on who you ask) is no different.
The answer you get regarding whether it is legal for Israel to throw them in detention centers in Saharonim detention center in the South for three years without standard legal proceedings (the goal being to “convince” them to “voluntarily” return “home”) depends entirely on how you phrase the question.
First, are the Africans refugees under international law? This issue has many layers of complexity depending on the country of origin of the Africans and how one interprets Israel’s obligations, having ratified certain conventions.
If they are refugees, then sending them back “home” or imprisoning them in a manner that violates international law can become controversial or even illegal.
As most of the over 60,000 Africans are from Eritrea and Sudan, it appears that once they succeed in entering the country, a large number of them are legally refugees.
How can the point be settled when it is hotly disputed by many political officials? In the state’s recent official submission to the High Court of Justice on the issue of whether Israel’s recent policies and amendments to the Prevention of Infiltration Law violates the Africans’ fundamental rights, including under international law, the state fought the issue on several other grounds, but was silent on fighting over their status as “refugees.” Thus, on one of the points that has been strongly publicly disputed – sending the Africans back or imprisoning them – the state has taken a pass.
In light of the state’s waiver on the issue, what is the argument that under international law they are refugees, and that their status as refugees prevents Israel from simply sending them back “home?” Essentially, the broadest answer is that many Eritreans and Sudanese (in contrast to South Sudanese) cannot return home, as they authentically fear that such a return will lead to persecution and possibly death. (Note: The counterargument which the state largely took a pass on is that many Africans came more for employment, and could return “home” safely, which could nix their refugee status.) Assuming they would be persecuted at home, they would normally need to be granted refugee status and permitted to remain with all of the rights of a non-citizen resident, including the rights to work and health insurance – and not being imprisoned for an extended period.
But the state mounted a whole new defensive battle for its policies at this point.
The state started by saying that aspects of the above arguments (it did not entirely specify which, and pressed for an explanation, the Justice Ministry spokesman refused to elaborate further) regarding defining refugees and what to do with them were suggested interpretations of international law but not obligatory, and that much of how Israel handles the issue occurs in a gray area.
The upshot of this argument is the state saying that either: 1) not all of the international law points about the Africans refugee status and rights are obligatory, and 2) even those that might sometimes be obligatory could be trumped by domestic law and a gray area created by unusual circumstances, such as in Israel’s case.
What domestic law and unusual circumstances could trump international law or prevalent interpretations of that law on the issue according to the state? The state said besides the general sovereign right to determine who enters its borders, Israel also has a unique geographic and geopolitical situation which heavily limits the applicability of prevalent rules of thumb (but which are not obligatory), which other states may be using to address similar issues.
It said that geographically, Israel is closer to Africa and has – until now – had a much more porous land border with Africa via Egypt.
The state also said that whereas other nations who do have a big migrant “problem” generally deal with it via intense cooperation with their neighboring states, Israel is at a distinct disadvantage, as its neighboring states either refuse to cooperate or are even hostile to Israel to the point that they would never consider cooperation.
The state also claimed that it has never forced refugees to return – a point which is hotly debated, as many interpretations of international law would indicate that someone who “voluntarily” decides to “go home” after being imprisoned is actually being forced to return. Next, the state said that people who have illegally entered the country do not have the same freedom of movement rights (or right not to be put in a detention center) as those who have entered legally.
In responding to these latest claims, one of the lead lawyers on the petition before the High Court, Oded Feller of the Association for Civil Rights in Israel told The Jerusalem Post that essentially, the state was the party that was playing games with its international law claims – not the petitioners.
Next, Feller said that Israel was not unique geographically, noting that there are porous border issues involving the US and Latin America, much of Europe and Greece in particular.
Regarding the geopolitical context, Feller stated that it was his understanding that some Sudanese had been returned to Sudan, and that this had been done via cooperation with Turkey and Jordan. According to him, then, the problems Israel has with its neighbors, while not insignificant, are also not a special trump card on international obligations.
But all of this may really be window dressing for the real debate that the state eventually put front and center: the disputed belief that the 60,000 Africans, and possibly more who could come, threaten the bedrock values of Israel – both in the democratic and Jewish sense.
The state said that the High Court has held that in actuality, many international law obligations can be trumped by fundamental Israeli principles, such as the protecting the state’s core Jewish and democratic character.
Folded in with this argument are related arguments about threats to other aspects of the state as a whole, such as an inability for the budget to support such a large group of presumably less educated persons.
To this Feller replied simply: “They are here, open your eyes.” He explained that regardless of how poorly the reality fit Israeli society’s expectations, there is an international rule of law which Israel has committed to and there is just no way to legally return most of the Africans home.
Feller considered the limit of three years in detention (and whether the conditions of detention live up to international law standards is hotly disputed) to be an artificial number, which the policy’s authors thought would be “long enough to convince large numbers of Africans to leave Israel” – while not being blatantly too long to “fail a proportionality test” in court as to whether the solution was too aggressive.
But Feller considered this balance fictitious, returning to the idea that Israel has two choices under international law: to check within 60 days whether an individual is a refugee, on the basis of which a decision will be made on whether they get to stay, or to waive checking and simply let people stay. He also added that in most cases, a determination could be made in days, making three years even more absurd.
He said that the phenomenon was already eight-years-old, and that people need to “recognize this is not a temporary issue.”
Pressed about how Israel could handle such a permanent resettlement of refugees which his vision might imply, he said that “past experience in Israel with migrants, such as with 600 persons from Darfur, was that given a chance to work,” the persons eventually could support themselves and burdened society less than when prevented from working.
Feller appeared more interested in the legal analysis than in the practical difference between absorbing 600 refugees and 60,000.
Asked to respond further to Feller’s critique, the state refused to comment.
Feller’s view, if opinion polls and the last election is any sign, is not likely to find any significant political acceptance.
But will the High Court feel international pressure to conform to standards that are becoming more common (or are already obligatory depending on who you ask) internationally, or will it view the issue through the prism of concerns of sovereignty, foreign policy, national security and politics? Regardless of where one stands on what international law says about the situation in Israel, now that there are over 2,000 Africans in detention centers and a high volume of funds are being invested to build more structures, it will be much harder for the court to end the policy than it will be to find a way to take a pass.