African migrant woman.
(photo credit: Ben Hartman)
It is hard to overestimate the game-changing power of Monday’s High Court of
Justice decision striking down as unconstitutional the government and the
Knesset’s June 2012 policy of addressing the African migrant dilemma, including
the state’s holding over 2,000 migrants in detention for up to three years
without legal proceedings.
But as important as the obvious aspects of the
ruling were, such as the order to release the migrants in some fashion within a
lightningfast 90 days, the most profound change to the political and legal
landscape lay beneath the surface of the ruling.
Beneath the surface, the
court essentially told the state not only that the current policy was invalid,
but that anything the state does in the future will need to take into account
the ultimate issue which it has tried desperately to ignore: That under
international law (and now all but formally under Israeli law) most of the
55,000 Eritrean and Sudanese migrants are here to stay.
The state has
been in a catch-22. On the one hand, all human rights groups, international
players and a minority of politicians have emphasized the rights of the migrants
and Jewish historic commitment to being kind to the “stranger.” On the other
hand an overwhelming majority of the public and of the politicians in power,
including Prime Minister Binyamin Netanyahu, want the migrants gone. They are
treated as a danger to the state, particularly in their large
Next, the state feels empowered to deal with the migrants as
law-breakers as most of them crossed the Egyptian border illegally.
they had come from countries where they were not being persecuted and hunted (as
they are in Eritrea and Sudan) or countries with who Israel has diplomatic
relations (which Israel does not have with Sudan), upon investigation of their
cases, most of them probably would not meet the international law requirements
for getting to stay in Israel as a “refugee,” and then could be sent
But even as they may be lawbreakers in how they entered the
country, international law does not allow as a punishment or a solution for such
law-breaking, sending persons back to a place they will be
Knowing that looking at each individual case, most migrants
would need to formally be given residence and that only a small number of
migrants could be sent home, the state put them in detention to try to avoid
either sending them home (clearly illegal) or giving them permanent residence
The court knocked down this plan easily, like
a tumbling house of cards.
Not only did the court declare the current
policy illegal, it also, almost as an aside, mentioned that clearly most of the
migrants will not be able to return to their countries of origin and suggested a
number of other ideas for the issue, many of which involved coping with giving
them permanent residence.
Technically, the court had not been asked to
rule on that issue and cannot make a final global decision for the whole
Each individual case would need to be adjudicated by the state and
in court, if there was an appeal.
But the court’s general comment was a
warning shot across the government’s bow: Do not try any new policy that
continues to ignore the reality that most migrants cannot be returned and will
The government is on notice of what the court will do and
ignores this warning at its own peril.