African migrants walk outside Holot open detention center in the southern Negev last year..
(photo credit: REUTERS)
The High Court of Justice will decide two landmark cases on Tuesday, one on the broader question of prisoners’ rights and one on the more specific question of migrants’ rights in the Holot open detention center in the Western Negev.
The High Court will address the rights of prisoners in deciding whether the state violated domestic and international law requiring each prisoner have cell space of at least four square meters.
In the migrants’-rights case, the question is whether the state violated the right to bring a variety of private possessions into Holot which prisoners are not allowed, but should be permitted to migrants in open detention.
Open detention is controversial; Israel asserts it is appropriately treating migrants who illegally crossed into the country to improve their economic situation, while human-rights advocates say Israel illegally treating them, barely at the level above “real” criminals, while migrants fled to Israel to avoid persecution in their home countries.
The two decisions come as part of Tuesday’s retirement ceremony for Deputy High Court President Elyakim Rubinstein.
Both come from petitions filed by the Association of Civil Rights in Israel and partner NGOs, with the prisoners’ petition filed in 2014 and the migrants’ petitions filed in mid-2016.
In each case, the state already admitted that its position at the start of the case did not fully comply with the requirements of the law.
However, in each case the state has filed legal briefs updating the court that it has made progress, addressing the shortcomings and requesting flexibility from the court with addressing remaining issues.
In contrast, ACRI has demanded that the state fully cure shortcomings and said the state is stalling unnecessarily on certain issues.
For example, in the prisoners’ rights case, the state has advised the court that it is building new prison facilities which will have cell space of 6.5 square meters per prisoner.
But it has also said that some of this will not happen until 2019 and is noncommittal about when some funds will be budgeted for the new facilities.
Observers will watch closely, both if Rubinstein and the court slap the state with any sort of concrete deadlines or benchmarks, and if they strike as unconstitutional aspects of the state’s prisoner policies.
Regarding migrants’ rights, the state has said it now permits migrants to bring additional items into Holot and has clarified contradictions in old regulations.
But ACRI noted that migrants are still not permitted to bring soap, deodorant and various shaving-related products into Holot, with little or no rational reason for the prohibition for a sector of persons who are not considered “criminals,” even as they crossed into Israel illegally.
ACRI and its partners assert that the root problem is that the state is trying to make migrants’ lives difficult as part of an unconstitutional policy to encourage them to leave the country.
In August 2015, the High Court rejected a 20-month open-detention period for migrants in Holot as unconstitutional, but it accepted a 12-month detention period.