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Israel’s Supreme Court Strikes Down an Immigration Law and Puts Itself on Trial

African migrants in Israel(Photo by MENAHEM KAHANA / AFP)

In previous summers, Tel Aviv’s Lewinsky Park filled with illegal migrants . They chatted into the night on the worn wooden benches, sprawled on mats in the grass, and even curled up next to the slide on the playground. For the new arrivals from Eritrea especially, South Tel Aviv really was a Promised Land, reached only after a dangerous desert journey to escape the hard reality, whether political or economic, of their home country.

In the summer of 2014, the park was empty. For years, thousands of Eritreans, Sudanese, and other Africans had streamed illegally across Israel’s border with Egypt, the only overland crossing between the African continent and a developed country. Their numbers had reached a high of 1200 per month in 2010, and the ever-growing numbers infuriated long-time residents of South Tel Aviv, whose neighbourhoods—already down at the heel—were suddenly overwhelmed with tens of thousands of foreigners. With so many entering the country, the total number of African migrants—“infiltrators” or “asylum-seekers”, depending on one’s politics—reached 60,000, most of them Eritreans. But that figure has stopped climbing: by the first half of 2013, according to the Israeli government, only 34 migrants crossed the border illegally.

According to government officials, the reason is clear: they credit the drop to the construction in 2012 of a fence along the entire length of the Israeli-Egyptian border and to the policy of placing in detention centres those who had already managed to cross into Israel. The word had gotten out, some experts say, that attempting the trek to Israel was no longer worth it.

For this reason, a decision handed down in September 2014 by Israel’s Supreme Court might have far-reaching consequences. By a seven-to-two majority, the court held that the current policy of detaining migrants violated Israel’s Basic Law of Human Dignity and Liberty. In future, the court ruled, the state needed to find some other solution for regulating the flow of migrants and easing the pressure on South Tel Aviv’s residents.

The question before the court was a classic one of balancing human rights and public order. On one hand, the detention of migrants not accused of any crime against person or property is not humane. Israeli governments have consistently bucked public pressure and refused to send Eritreans and Sudanese home involuntarily. Given the two countries’ dire human-rights records (among the world’s worst), involuntary repatriation would violate international refugee law.

Still, the policy of long-term detention is a total restriction of the migrants’ liberty. While detainees are allowed to leave the detention centre during the day, they must check in during the afternoon and return every night. As the court concluded, Israel was refusing to ship migrants back to Eritrea or Sudan out of concern they would be slammed in prison, yet, in detaining them, the state was itself doing much the same.

On the other hand, the Israeli public is pressing for action. Israelis argue that the country cannot be expected to absorb waves of African migration that could be endless. Left unattended, migration could bring hundreds of thousands of Africans into Israeli communities. From countries other than Eritrea and Sudan, the state could claim more easily that the migrants came for economic reasons and so could be deported. Still, in any country, limitless immigration would strain society and public order. In Israel, such massive African migration could compound the already-fraught demographic and security concerns.


Balancing the two needs, the court sided with the protection of rights. That hardly endeared it to the public or politicians. Many credit the detention policy for deterring the migrants and halting the flow. If so, the case has created at least a policy headache. Right-wing Knesset members are vowing to enshrine in a basic law the Knesset’s primacy over the courts, at least on this issue, in effect changing Israel’s Basic Laws and infringing on democratic fundaments. Outgoing Interior Minister Gideon Saar told a Knesset committee he would submit legislation toward that end by October 26. The attorney general has said he will try to block the move, which even then would need support from the governing coalition and the full Knesset.

That puts on the table the broader issue of the role of the Supreme Court in Israeli life. The court has long been viewed in rightist circles as an outpost of the left-wing elite that, illegitimately, strikes down Knesset laws and squelches the public will. In a country where the founding labour Zionist elite has been supplanted by a broader social coalition that veers to the right, court decisions often come under attack.

For this reason, the ruling on immigrant detention may take on a significance even broader than the issue itself. Especially if the Africans start crossing the border again, the issue could spark an intensified round of wrangling about the authority of the Knesset versus the role of the court. The resolution of that wrangling could impact the course of future policy towards civil liberties, religion and state, the Palestinians and countless other issues.

Talk about the Supreme Court’s immigration ruling has largely petered out. In a public agenda crowded by wars and budget debates, the headlines mostly faded after a day or two. Still, the ramifications of this ruling could return it to the national debate. In the long run, its fate affects all Israelis, not just Eritreans who will not (or will?) be detained in the Negev Desert. At stake is not just the balance between the liberty rights of the migrants and the state’s responsibility to control movement across its borders but also the balance of power between the legislature and judiciary.

Israel is one of few states without a written constitution. Meanwhile, a cantankerous society has never reached full agreement about how to order, structure, and limit its governance. Instead, the constitution evolves piece by piece, ever fragile and susceptible to the latest crisis. The immigration issue presents the newest challenge. The outcome for Israel is not yet known.

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