Two countries have agreed to take some of Israel’s illegal migrants, the state told a maximum-sized nine-justice High Court of Justice panel Tuesday, at a dramatic hearing over whether to declare the state’s policy on the issue unconstitutional.
With a number of migrants in attendance and an even larger number Israeli activists from south Tel Aviv present, one could periodically hear the two sides just outside the Jerusalem courtroom sparring verbally and occasionally yelling, both during the hearing and afterward.
Some of the southern Tel Aviv activists briefly blocked the road leading to the High Court building after the hearing.
The state’s policy was initiated in mid-December 2013 under pressure from a mid-September 2013 High Court ruling striking down the old policy as unconstitutional.
Since the new policy’s initiation, 3,988 migrants have left the country, including 1,510 in March alone.
The old policy included placing around 2,000 migrants in closed detention for three years before the state had to address their refugee status.
The new policy includes placing new illegal migrants in closed detention for up to one year, but also allows placing up to 4,000 (so far) already in Israel in open detention for an indefinite period.
The open detention center in the Negev allows its residents to leave during daylight hours, but requires signing in three times per day, prohibits working and requires spending the night there.
While supporters of the new law say the openness of the new detention center goes beyond or is at least sufficient to protect the migrants’ rights, critics say its restrictions make it no different than a jail and that its indefinite detention period is worse than the three years of closed detention under the old policy.
Some justices who appeared to doubt the new policy’s constitutionality did not mince words.
Justice Salim Joubran asked how the state could say its policy followed democratic principles when only two migrants had been granted refugee status out of 3,000 who had requested it.
Justice Uzi Vogelman followed that up by asking if the state could provide examples of other countries with such low rates of granting refugee status.
Deputy Supreme Court President Miriam Naor and Justice Yitzhak Amit asked the state whether – with all of its arguments about salvaging the new policy, and its assertion that some migrants have left – it had any plan for what to do with the majority of migrants who were likely to stay and would not fit in the Holot open detention center.
On the other side, Supreme Court President Asher D. Grunis, Amit and Justice Esther Hayot pressed the Association of Civil Rights in Israel’s lawyer Oded Feller, saying he only presented what he was against, but offered no solutions.
They called on him to say what limits, if any, Israel could put on the movement of illegal migrants and for what minimal length of time, but Feller demurred, only saying that limitations should be minimal, and raising the specter that the current policy could lead Israel to abandoning its commitment to international conventions on refugees.
In asking how the new law was different from the old one, Feller cited the Passover Seder question of “How is this night different from any other night?” and answered that the new law was as bad or worse. Implied in his reference was a nod to the Passover- related principles of showing compassion to strangers.
He added that the state could not argue that migrants were leaving voluntarily, considering all of the coercive pressures it was placing on them.
The state has said in the past that at least one third-party country has agreed take some migrants, but the state has been unwilling to reveal which country or what incentives Israel was providing it.
Again on Tuesday, the state refrained from naming the countries in question, but added that other states were agreeing to allow migrants to cross through to their final destinations.
In its defense of the law, the state said the landscape of the issue had changed in recent months due to the large number of migrants who had taken an incentive package and voluntarily left the country.
In addition, the state argued, no new illegal migrants had been flowing over the Egyptian border into Israel since the completion of the new Sinai border fence in early December.
The new policy is based on the proposed “map” that the High Court gave in its previous decision to strike down the old law, the state said.
A lawyer representing southern Tel Aviv residents supported the new policy and said that an “unequal burden” was being imposed on his clients in their having to live with virtually all of the migrants.
The lawyer said that international conventions on dealing with the unique refugee issues Israel was confronting were ambiguous, and that many countries had taken different broad or narrow interpretations of a state’s right to reduce the level of illegal migrants, versus the migrants’ own rights.
He said Israel’s policy was within the spectrum of differing interpretations, citing Germany, Switzerland and others as taking harsher measures with migrants when the number of migrants they faced spiked.
Bayit Yehudi MK Ayelet Shaked said, “While the High Court justices sit and contemplate whether the detention conditions are proper from a legal perspective for illegal migrants – violators of the law – [there are] dozens of residents of the State of Israel for whom this is the land of their birth – taxpayers who follow the law – [who are worried] about their future.”