Analysis: How did we get here and why?

The court gave the state only a super-short 90 days to determine the refugee status of the approximately 1,700 migrants.

December 11, 2013 06:22
2 minute read.
Eritrean migrants protest Negev detention facility

Eritrean migrants protest Negev detention center 370. (photo credit: Ben Hartman)

In mid-September, the political ground shook across the country in the aftermath of one of those rare High Court of Justice rulings that completely changes the playing field on a major policy issue: what to do with the over 50,000 African migrants illegally in Israel.

A centerpiece of the old policy was placing what at one point was around 2,000 migrants in closed detention facilities for up to three years to try to convince them and others to “voluntarily” return to Sudan, Eritrea and other countries.

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The court struck this down as unconstitutional and gave the state only a super-short 90 days to determine the refugee status of the approximately 1,700 migrants (some had left the country or been released) or to release all of them.

This put the government between a rock and a hard place.

It had no choice but to change the policy and did not want to have the administrative chaos and political embarrassment of being essentially told it had instituted an illegal policy a second time.

However, different suggestions for releasing the migrants and integrating them into the state recommended by the victorious human rights groups and some justices were viewed as politically unpalatable.

As strongly as the High Court condemned the old policy, the vast majority of the population and of the political class were strongly in favor, and against a friendlier more integrationist approach.

Early Tuesday morning’s Knesset endorsement of a policy in which new illegal migrants will be put in closed detention enclosures for a reduced one year and those presently in detention will be moved from a closed to an “open” detention center for an indefinite period is a result of that dilemma.

Pieces of the new policy were taken from five of the nine justices involved in the High Court’s decision, in sections where they recommended alternatives.

In that sense, the government is betting that it can hold those justices to endorsing their own suggestions and the policy is more of a tactical withdrawal than a complete strategy change that might anger the public.

The bet is likely to pay off as even an independent court is likely to be hesitant to strike down a very popular policy twice, particularly where the second version contains remnants of their own ideas.

But it was still a gamble.

Only two justices hinted at endorsing the idea of keeping migrants in closed detention facilities given a shorter time-frame and while three other justices mentioned open detention as an accepted alternative used by other democracies, it is not clear that they meant indefinite open detention in a desert with working being prohibited and nowhere to go.

The first policy gave little thought to international and human rights laws and to what courts might do. The government paid a price for focusing almost exclusively on deterring migrants from staying.

The second policy came about because the government was unwilling to integrate the migrants (which multiple justices encouraged) and the court, intentionally or unintentionally, in giving contrary examples to the old policy, opened a path for the state to take those examples and present them as just what the court had ordered.

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