Netanyahu’s extrajudicial end-run, to imprison African asylum-seekers

Israel/Palestine
on 19 Comments
African immigrants seen at a detention facility located in the south of Israel. August, 2012. (Photo: Moshe Shai/Flash90/Times of Israel)

African immigrants seen at a detention facility located in the south of Israel. August, 2012. (Photo: Moshe Shai/Flash90/Times of Israel)

I’ve seen the pattern before. Over the summer Israel’s high court declared an amendment to the anti-Infiltration Law of 2009 unconstitutional. The amendment extended the maximum imprisonment for those who entered the country illegally– namely would-be refugees who managed to walk from North East Africa to the Jewish state– from three months to three years. The court also ruled that the government must release all of the detained refugees within 90 days, effectively reinforcing the former limitation on imprisonment terms.

Like any other state with an independent judiciary, Israel’s high court had reviewed the facts in the case and made a ruling based on the law. But what came next highlights the complete lapse in order: Yesterday Netanyahu announced that he’s drafting plans to imprison asylum seekers for a year and a half in a remote jail near the Sinai border.

He and the Ministry of Interior are going rogue trying to turn this prison and other facilities into a quasi halfway house for refugees where Africans can leave during the day, but return to the prison at night to sleep. And so while the court has called for a release from incarceration the state is sanctioning housing in dismal jail cells with a pass to leave when the sun is up. 

Haaretz explains:

[M]igrant workers will reside in the open facilities at night, but will be allowed to leave the compounds during specific hours to work, among other activities. Nevertheless, it is still unclear where the new facilities will be built, what specific restrictions will apply to its residents and how freely they will be able to move about.

“We cannot remain without tools at a time when we know that Israel is the only Western country that borders Africa,” said Interior Minister Gideon Sa’ar yesterday, and in a post on Netanyahu’s Facebook page.

“We must change the existing situation, which is unacceptable, in which tens of thousands of illegal migrants are in Israel. All of this is with the understanding that we are committed to acting according to the principles and values of Israel as a Jewish and democratic state,” he continued.

Teasing out this process, it becomes evident that the way in which politics are done in Israel is by constructing an extra-judicial set of tenets, beyond the checks and balances of the state. Israel has specific laws on equality and has articulated basic human rights standards. But Netanyahu’s policy interference subverts the democratic-value tenets within the legal system.

The end result is that Israel’s prime minister is making decrees that are beyond the law. This latest example looks less like a representative government and more like a king legalizing the unconstitutional.

19 Responses

  1. just
    October 19, 2013, 7:39 pm

    It’s slavery, apartheid, and trash.

    Not one iota of democracy– it’s total HS. And when they rulers don’t want the slaves anymore, they trade them to Uganda for weapons, etc.

    “Haaretz explains:

    [M]igrant workers will reside in the open facilities at night, but will be allowed to leave the compounds during specific hours to work, among other activities. Nevertheless, it is still unclear where the new facilities will be built, what specific restrictions will apply to its residents and how freely they will be able to move about.

    “We cannot remain without tools at a time when we know that Israel is the only Western country that borders Africa,” said Interior Minister Gideon Sa’ar yesterday, and in a post on Netanyahu’s Facebook page.””

    PS– Israel is not a “Western country”.

    Thanks Allison– you are a treasure.

    • RoHa
      October 20, 2013, 12:21 am

      “we know that Israel is the only Western country that borders Africa,”

      Except it isn’t and doesn’t. The Sinai Peninsula comes between Israel and Africa, and that peninsula is conventionally regarded as part of Asia.

      Spain really is a Western country, and yet has two cities with land bordering Africa (Ceuta and Melilla) and an African archipelago.

      • Annie Robbins
        October 20, 2013, 4:25 am

        israel is not a western country. wtf is that about.

  2. Mayhem
    October 19, 2013, 9:29 pm

    Israel’s prime minister is making decrees that are beyond the law

    Deger’s assertion is pure and utter rubbish.
    From the Haaretz article she has referenced:
    “Prime Minister Benjamin Netanyahu announced his decision to push forward a law that would enable the state to confine illegal migrant for a year and a half on Thursday. The new law would replace of the Infiltration Prevention Law recently overturned by the High Court of Justice that allowed the state to confine illegal migrants for a period of up to three years.
    …An expanded panel of nine High Court justices declared unconstitutional the amendment to the Infiltration Prevention Law that the state used to hold close to 1,800 African migrants in detention facilities. ”

    Israel is doing what every other democratic country in the world is entitled to do to protect itself from a huge influx of people looking for better economic opportunities. Israel is a signatory to the 1951 UN Refugee Convention, Yemen being the only other country in the region to have signed it. Israel’s responsible and abiding legal system ensures that only appropriate legislation can be introduced.

    • Annie Robbins
      October 19, 2013, 10:20 pm

      mayhem, the court declared the law used to imprison them unconstitutional “on the grounds that it disproportionately infringed on the right to freedom and contradicted the Basic Law on Human Dignity and Freedom” and instructed ” the state to free the detainees within 90 days, it appears that only two detained migrants have been freed since. ”

      how is this “what every other democratic country in the world is entitled to do”. you mean ignore their own courts? please explain.

      • Mayhem
        October 19, 2013, 10:47 pm

        @Annie, the court ruling was in mid-September. 90 days after that takes us to mid-December. So why are you harping on about law infringements now when the Israel government has until almost the end of the year to follow the court ruling?

      • Annie Robbins
        October 19, 2013, 11:31 pm

        what harping on? i was merely responding to your silly “every other democratic country in the world ” allegation. i see you declined the opportunity to explain to me how ignoring the court’s ruling is ‘democratic’. guess that means you can’t back up your “pure and utter rubbish” allegation.

        toodles.

      • Walid
        October 20, 2013, 8:33 am

        “how is this “what every other democratic country in the world is entitled to do”. you mean ignore their own courts? please explain”.

        Annie, when a former Israeli Minister of Justice says, ” I am a lawyer…But I am against law — international law in particular. Law in general” what respect do you expect these people to have for their own court rulings?

      • Hostage
        October 20, 2013, 11:17 am

        Annie, when a former Israeli Minister of Justice says, ” I am a lawyer…But I am against law — international law in particular. Law in general”

        Correction: Livni is once again the Justice Minister of Israel.

        FYI, Zionists began employing the term Jewish State in the 19th century. Livni just appointed Dr. Ruth Gavison to pioneer an official effort to legally define and codify the meaning of the term, for the very first time.

        It will undoubtedly degenerate into yet another exercise to redefine the term “democracy” in international law or condone inequality and discrimination against non-Jewish minorities in violation of Article 1 of the UN Charter and other international human rights conventions. See
        * Netanyahu irate over Livni’s move to draft alternative to Jewish State Law: Justice Minister commissions legal scholar Prof. Ruth Gavison to draft an alternative to the controversial ‘Jewish State Law,’ attempting to find a balance between Israel’s definition as both a Jewish state and democratic state. link to haaretz.com
        * Prof. Gavison to resolve Israeli ‘Jewish-Democratic’ issue link to ynetnews.com
        * Livni wants constitutional proposal balancing Israel’s Jewish, democratic identities link to jta.org
        * Livni appoints professor to resolve issue of Israel’s Jewish and democratic identity link to jpost.com

        The fact that the Jewish State drove the bulk of its Arab population into permanent exile; placed the remainder under martial law for nearly two decades and still herds them into reservations; and reserved the right of Jewish ethnic organizations, like the JNF, to exercise control over government organs and functions, like the Israel Land Authority, on which the JNF holds just under half the seats, prevents Israel from ever being recognized as a democracy as that term is defined in international law and human rights conventions:

        The link between democracy and human rights is captured in article 21(3) of the Universal Declaration of Human Rights, which states:

        “The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

        The rights enshrined in the International Covenant on Economic, Social and Cultural Rights and subsequent human rights instruments covering group rights (e.g. indigenous peoples, minorities, people with disabilities) are equally essential for democracy as they ensure inclusivity for all groups, including equality and equity in respect of access to civil and political rights.

        link to un.org

    • Hostage
      October 20, 2013, 6:21 am

      Deger’s assertion is pure and utter rubbish.

      Not really. Your reply and Netanyahu’s comments on Facebook are riddled with false and misleading comments. Let’s list a few:

      a) Article 1 of the 1951 Refugee Convention contained a definition of the term “refugee” that limited its scope of application to only those persons displaced as a result of the war in Europe. It never applied to displaced persons in Africa or Asia. The 1967 Protocol broadened the scope of application to refugees worldwide, but countries were allowed to opt-out of adopting the new definition in favor of retaining the older one. link to unhcr.org

      b) The UN Office for the Coordination of Humanitarian Affairs points out that Israel does not have a refugee law, despite being a signatory to the 1951 refugee Convention. By 2009, Israel had only granted refugee status to 179 people. link to irinnews.org

      c) Only two or three modern states, including Israel and Great Britain, have no formal written constitutions to define the role of treaties or international law. In “International Law in Domestic Courts: Israel”, Prof. David Kretzmer explains why Israel’s Law on Infiltrators can be used to circumvent Israel’s obligations under the Refugee Convention, the Protocol, and Supreme Court decisions:

      In the absence of domestic legislative provisions the Supreme Court looked to the approach of the English legal system.
      The English approach rests on three principles:
      1. Parliament is supreme in the field of legislation. Hence, any law enacted by parliament is valid, even if it is incompatible with the state’s international law obligations.
      2. Customary international law is part and parcel of the common law of the land, and will be enforced by the domestic courts unless it is incompatible with parliamentary legislation.
      3. International treaties that were duly ratified by the state and bind it in international law will not be enforced by the domestic courts unless their provisions have been incorporated in domestic law through parliamentary legislation.

      The Supreme Court of Israel adopted all three principles.

      link to papers.ssrn.com

      d) Netanyahu’s claim that Israel has laws on equality is patently false. Israeli lawmakers have studiously avoided entrenching any right to equality in its fundamental laws. See MKs debate protection of ‘equality’ in future constitution: Religious MKs reject inclusion of ensurance of equality, saying it would contradict Judaism. link to haaretz.com

      Furthermore, there isn’t any doubt among legal scholars, like Prof. Nahum Rakover, former Deputy Attorney-General in Jewish Law Department of Israel Ministry of Justice and former Advisor to the Knesset on Jewish Law; and Prof. Yoram Dinstein, former President, Rector and Dean of Law at Tel Aviv University, that the Knesset can overrule a Supreme Court decision regarding the Basic Law: Human Dignity and Liberty. See:
      *Rakover:“Modern Applications of Jewish Law,” 1992, and “Jewish Law and Israeli Law: On the Process of Integration”, 1998;
      *Dinstein, “Israel Yearbook on Human Rights, Volume 25; Volume 1995”, pages 210-212.

      For example, Dinstein noted that the so-called “Womens Equal Rights Law” of 1951 specifically excluded marriage and divorce laws from its guarantees of “equality”. He says the exclusion of equality for women in the Framework Law laid the ground rules for the subsequent subordination of equality to religious values in the entire Israeli legal system. Every subsequent attempt to adopt a bill of rights has foundered on that point, i.e. deference to Judaism and religious institutions over the principle of equality. Dinstein says the Basic Law: Human Rights and Dignity Law was adopted to avoid the difficulty of giving priority to equality; that unlike the right to an occupation, the principles of human dignity and liberty are not expressly entrenched and can be reversed by ordinary legislation. Furthermore, he notes that the Basic Law will not even override existing statutory or judge made laws or any law befitting the values of the Jewish state.

      That sorry state of affairs has been repeatedly pointed out by the UN treaty monitoring bodies, like the CERD:

      13. As mentioned in its previous concluding observations (CERD/C/ISR/CO/13, para. 16), the Committee is concerned that no general provision for equality and the prohibition of racial discrimination has been included in the Basic Law: Human Dignity and Liberty (1992), which serves as Israel’s bill of rights; neither does Israeli legislation contain a definition of racial discrimination in accordance with Article 1 of the Convention. These lacunae seriously undermine the protection afforded to all persons under the jurisdiction of the State party for equal access to human rights (Article 2 of the Convention).

      — CERD/C/ISR/CO/14-16, March 2012 link to www2.ohchr.org

      Of course, the bottom line is that Israel is not behaving like any other state. The 1969 OAU Convention, and the Cartagena Declaration on refugees prohibit or criminalize the act of rejection at the frontier, returning a victim of persecution to the offending state, and imprisonment of asylum seekers without trial.

      See the Cartagena Declaration
      And the OAU Convention
      Customary Rule 132. Return of Displaced Persons

  3. Annie Robbins
    October 19, 2013, 10:12 pm

    the state also plans to establish open stay centers. According to the initial details about the plan, migrant workers will reside in the open facilities at night, but will be allowed to leave the compounds during specific hours to work

    i do not understand the meaning of ‘open’ in this context. if they are only allowed to leave during certain hours how is this ‘open’.

    something tells me ‘open stay centers’ is just for propaganda purposes the way ‘clean air initiative’ is code for massive pollution run amuck.

    • Walid
      October 19, 2013, 11:44 pm

      Annie, this is about maintaining the Africans as a cheap labour pool for Israel but that they want them locked up at night. Simple task for Israel; just a few more walls to erect in the desert and some guard dogs. Better than having to hire Palestinians for some jobs; when they get tired of having them in their face, there’s always Uganda to come to Israel’s rescue.

      • Annie Robbins
        October 20, 2013, 4:22 am

        that’s what i thought walid. when i was there in 09 we were hosted by a person who worked at one ofthe prisons w/the african immigrants. he said they were allowed out during the day if there was some arrangement where they could work. if someone ‘hosted’ them. but they usually didn’t get paid. sounded like slavery to me. but i guess it seemed like a good deal as compared to being locked up all day.

        i will never forget that. in UEA/dubai they have these facilities they bus workers to at night. waaaay far away. weird.

      • Walid
        October 20, 2013, 5:57 am

        Slavery is also very much alive in a few other Mid-Eastern countries, Annie, as with the example you described, but it dons a different habit from the one we usually associate with slavery. It has to do with the horrible working conditions, abject living quarters, abusively low wages and the taking away of passports to keep foreign workers captive and at their masters’ mercy. It’s not exclusive to Israel. One country in particular has a law stipulating that labourers must not be made to work outside in temperatures that exceeed 50C. On the surface this appears humane but you’d never find a thermometer there that can register temperatures higher than 48°C.

      • just
        October 20, 2013, 7:02 am

        Do those countries proudly proclaim that they are “western” and “democracies”?

        (We have much work to do here in the US, btw. We still rely on migrant workers who face racism and hatred and worse than poor living conditions.)

      • Walid
        October 20, 2013, 7:46 am

        No they don’t claim to be Western countries, Just, but they do claim to be democracies as they measure themselves against their neighbours’, so comparatively, they only appear to be “more democratic”. Israel also plays this phony game of gauging themselves against their neighbours. How would Israel’s democracy rate in comparison to authentically Western countries like the US, UK, France, Germany and so on? This bogus claim of being a “Western” country is a gimmick to make Europeans and Americans look on Israel as being one of them and in a common conflict against the barbaric and terrorist oriental Arabs.

  4. K Renner
    October 20, 2013, 1:41 am

    I thought there was going to be one of the usual suspects writing on this page about how Israel is “lawful and blameless and non-abusive as always, especially to the schwartzies”, and I wasn’t disappointed.

  5. Dutch
    October 20, 2013, 9:58 am

    “We cannot remain without tools at a time when we know that Israel is the only Western country that borders Africa,” said Interior Minister Gideon Sa’ar yesterday, and in a post on Netanyahu’s Facebook page.

    Since when is Israël a ‘Western country’, and since when does it border Africa? Oh, it’s on Netanyahu’s Facebook page. That explains all.

  6. seafoid
    October 20, 2013, 10:04 am

    Tens of thousands of illegal immigrants in Palestine…in the 1930s. They too went in search of a better life….

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