High Court: State must defend African migrant law

The High Court of Justice on Tuesday issued a conditional order against the state regarding the Law to Prevent Infiltration, demanding that it respond to the claim that the law violates the fundamental rights of African migrants.

The law authorizes the administrative detention of migrants without a trial for a term of three years. An amendment on the issue of African migrants was passed by Knesset in January 2012, and put into implementation on July 3.

The order did not temporarily freeze the law’s implementation, as is sometimes done, but both the order and criticism from the court put the state on the defensive. Supreme Court President Asher D. Grunis presided over the hearing, along with Justices Edna Arbel and Miriam Naor.

The petitions that led to the order were filed by six migrants’ rights organizations, including the Association of Civil Rights for Israel (ACRI) on their own behalf and on behalf of five Eritrean asylum seekers, including a child, being held indefinitely in detention camps.

In an unusual development, the UN, which has repeatedly been publicly critical of the law, filed a amicus brief on the subject.

According to ACRI, most of the people being held under the law are citizens of Sudan and Eritrea, countries to which “the Israeli government itself recognizes that it cannot deport people because of their expected fate upon their return.” The petition argued that Israeli and international law prohibit the detention of migrants in cases where they cannot be deported.

The petitioners also claimed that the law violates the Basic Law: Human Dignity and Liberty, which would require the High Court to strike down the law. They also claimed that around 2,000 migrants are being held in what are essentially prison conditions and that only 20 have been released despite their imprisonment being against Israel’s international law obligations.

The petitioners noted that a 1954 High Court precedent demanded that any person who is being temporarily detained in order to deport them must be released to house arrest or some other severe alternative rather than allowing their detention to go on for an extended period.

The state responded that the law still had not been significantly implemented, making the entire petition premature, and added that those migrants whose requests to be freed from detention had been fully processed and, when justified, had already been released. It claimed that, before resorting to a High Court petition, the correct path to deal with the issue was the appeals process to the government authorities.

The court, however, rebuked the argument about the premature nature of the order.

The order gave the state until April 30 to state its full response to the constitutional objections to the law.

The court said that the final hearing would be before a broader panel, which would also decide whether to hear the submission filed by the UN.