Saharonim detention center 370.
(photo credit: Eli Hershovitz/Physicians for Human Rights-Israel)
How do you beat back an almost guaranteed petition to the High Court of Justice
on a major controversial new migrants policy? Base the policy on essentially
direct quotes from five of the nine justices (including the Supreme Court
president and the justice who wrote the majority opinion) who struck down the
Late Thursday night a Justice Ministry-sponsored bill for a
major revision in policy for dealing with the illegal African migrants problem
was uploaded on the Israel Government Portal.
The new bill proposes that
the practice of placing the migrants for three years in a special detention
center be changed to only one year.
The old law’s provision which
established the detention as a 24-hour situation is changed to permit the
migrants to leave an “open” detention center during the day, while being
required to sleep their at night.
The preamble to the bill quotes Supreme
Court President Asher D. Grunis and Justice Neal Hendel as supporting most of
the concept behind the old law and as being willing to uphold a revision of the
law which would substantially shorten the three-year detention
Next, the preamble cites Justices Edna Arbel (who wrote the
majority High Court opinion which struck down the old law), Uzi Vogelman and
Deputy Supreme Court President Miriam Naor as having suggested the “open”
detention center idea as a positive example of what other Western democracies
have done to handle their migrant issues.
Also, the law said that it will
initially run for only a three-year “emergency” period, following which the
Knesset would need to reauthorize the law in order for it to continue – a
sweetener for the High Court, as it can say it has not approved any permanent
change in constitutional protections.
Various pro-migrant NGOs have
already suggested they will return to the High Court to strike down any bill
with similar provisions regarding a detention center, potentially setting up
another round of judicial drama, should the bill become law.
who is right or wrong in the world of theoretical ethics and philosophy, it is
likely that the new bill, once passed, will be upheld by the High
Instead of guessing how far it could push the boundaries of human
rights law regarding the migrants, as the government did in constructing the
old, nullified law, this time the government took its advice directly from the
High Court, which will rehear any future petitions.
Simply put, it will
be difficult for the court to strike down a new law based on prescriptions its
own members suggested.
That said, the new bill is not a
Human rights groups will be able to argue that when the court
referred to open detention centers, it meant open “for real,” in a way that
would allow the migrants to travel.
In contrast, the current plan
reportedly is to have the detention center in the middle of the desert, so it is
unclear where the migrants will be able to travel to, aside from walking just
outside the gate of the center.
Furthermore, the new bill requires
migrants to “register” and present themselves at the detention center three
times during daylight hours, also hampering any real chance at leaving the area,
and has strict provisions for sending migrants who violate the registration
requirements to closed detention.
But basing a new petition on these
arguments may breed false hope for those opposing the new bill.
Court has a record of approving changes in policy that meet at least superficial
conditions for not blatantly violating international law and domestic
constitutional protections, even if human rights groups argue that the
implementation of such a new policy still violates human rights.
famous legal dispute over Route 443, the High Court eventually (after years of
delays) ordered the IDF to let Palestinians drive on the road, which allegedly
was originally being paved for their benefit. (For an extended period during the
second intifada and after, Palestinians were barred from the road on security
grounds.) But when human rights groups argued that the implementation of the
change in policy on the ground did not give Palestinians a way to get to
Ramallah from 443, making it almost useless to them, the court did not intervene
While there are counterexamples, the point is that with polls
consistently being anti-migrant and against even the court’s previous
intervention of striking down the old law, the court is unlikely to intervene
again, particularly when ideas are copied and pasted from its opinion.