The Infiltration Prevention Law vs international law

Each individual instance of deprivation of freedom under the new law must meet conditions of necessity and proportionality.

By YUVAL SHANY
ISRAEL SUPREME Court justices at a hearing. The court has invalidated the infiltrators law. (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
ISRAEL SUPREME Court justices at a hearing. The court has invalidated the infiltrators law.
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
The Supreme Court decision to invalidate Amendment 4 to the Infiltration Prevention Law, which had permitted the incarceration of “infiltrators” for one year at a closed detention facility, as well as their detention for an unlimited amount of time at the “open” Holot holding facility, stirred a lively debate on relations between the Knesset and the court, as well as regarding the status of Israel’s Basic Laws, by virtue of which the amendment was annulled. The Court’s ruling is based on the understanding that the power of the Knesset to pass laws that infringe on constitutional rights is limited, or that, in other words, Basic Laws limit the majority’s power to infringe on the rights of the minority. Those calling for a legislative process that will bypass these restrictions and enable the majority to exercise its will through legislation that would override the constitutional protections offered by Basic Law: Human Dignity and Liberty, demonstrate that the Basic Laws themselves may not withstand the “tyranny of the majority,” namely the use of the majority’s political power in order to restrict the rights of the minority.
Situations in which political pressures erode constitutional protections are clear instances with which international human rights laws were intended to deal. These laws were created after World War II, against the backdrop of a tragic historical reality in which it became evident that the constitutions existing at the time could not withstand the pressures generated by extreme political and economic upheavals. Even today, the international conventions pertaining to human rights and the bodies entrusted with their oversight are considered a “safety network,” dealing among other things with infringements of international standards not properly guaranteed by domestic constitutional law. It is not surprising that weak population groups such as “infiltrators” or “asylum seekers” oftentimes find themselves in need of protection of international human rights law, as members of those population groups generally do not have the ability to vote or be elected to the national legislature or ensure, by other means, that their rights will be protected by state authorities.
In light of the above, it is interesting to note two decisions issued by the United Nations Human Rights Committee in October 2014, pertaining to the human rights of migrants and refugees. The first is General Comment 35, a document that enumerates the obligations of the state parties to the International Covenant on Civil and Political Rights regarding the right to be free from arbitrary deprivation of liberty. Paragraph 18 of the Comment deals specifically with migrants’ right to be free from arrest or detention, and it is based on previous decisions reached by the Committee following complaints it received from migrants detained in Canada and Australia. According to the Committee, states may detain all migrants who enter their countries illegally, but such a detention must be limited in time to the short period needed to establish each migrant’s identity, and to initiate the process of removing the detainee from the country, where possible.
The detention of migrants for a longer period of time must be based on specific grounds relating to the individual detainee, such as the threat he poses to public safety or a concern that the detainee will flee and disappear. Yet even in such cases, the feasibility of alternatives to detention must be considered, and the detainee must be able to challenge before an independent court the decision to detain him.
The second decision issued by the Committee in October dealt directly with the situation in Israel, as part of its observations on Israel’s fourth periodic report to the Committee on the implementation of its obligations under the International Covenant on Civil and Political Rights (such a review is for every member states to the Covenant every 3-6 years). The Committee praised the Supreme Court’s rulings on the Infiltration Prevention Law – stating that they comply with international law – but demanded that Israel ensure that no new legislation will be passed that will include a sweeping rule on lengthy detention of asylum seekers.
Instead, each individual instance of deprivation of freedom under the new law must meet conditions of necessity and proportionality.
Thus, even if the Knesset were to amend Basic Law: Human Dignity and Liberty and incorporate the override paragraph proposed by some parliament members, any new amendment to the Infiltration Prevention Law will be reviewed by international bodies that oversee human rights around the world. Legislation that continues along the lines of previous amendments to the Law, and which is based on automatic and extended periods of detention of “infiltrators” without reviewing the necessity and proportionality of the justification for restricting their freedom in each individual case, will be source of tension between Israel and the international community and could lead to international political and legal pressures being imposed on Israel.
The author is the dean of the Faculty of Law at the Hebrew University of Jerusalem and is a member of the United Nations Human Rights Committee.