On September 22, a nine-judge panel of the Supreme Court of Israel issued a groundbreaking decision, ruling that the Israeli policy towards asylum-seekers and migrant workers violated the constitutional guarantees of the country’s Basic Law on Human Dignity and Freedom. The decision mirrors a judgment by the same panel last year and has its origin in originates with a recent influx of refugees and migrant workers from Africa. In 2012, the Knesset (Israel’s Parliament) amended the country’s so-called Anti-Infiltration Law to allow the state to detain undocumented migrant workers – many of them potential asylum seekers – for up to three years, and implemented harsh new penalties for aiding such individuals. In September 2013, the Court struck down the law, ruling it a violation of the Basic Law to hold asylum seekers for prolonged periods, and rejecting the use of detention policy as a deterrent for others seeking asylum. In the 2013 decision, the Court asserted, “Hard as the task with which Israel is forced to contend might be, we must remember that those who are already within our gates – are present among us. They are entitled to the right to freedom and right to dignity conferred by the Basic Laws to every person.”
In response to that decision, the Knesset passed a law allowing migrants to be held for up to a year in an open facility, and the state established the Holot facility in the Negev desert for this purpose. Holot currently houses about 2,200 asylum seekers from Eritrea and Sudan, each of whom must be present for three daily counts and none of whom may work. The Court’s recent ruling soundly rejected the Knesset’s revised approach and ordered that Holot be closed within 90 days. One of the Justices noted that “Many legal solutions can be considered — but they must be constitutional… A constitutional solution must reflect the balance between the general welfare and the individual’s welfare.”
The decision is notable for its use of domestic law to protect the refugees: while it may be safe to assume that international human rights and refugee protection principles played into the Court’s reasoning, the crux of the opinion seemingly grows out of Israel’s own domestic law and jurisprudence. In this regard, the case is reminiscent of the European Court of Human Rights (ECHR) decision in Hirsi Jamaa and Others v. Italy. In upholding the rights of Libyan asylum seekers intercepted at sea, the Court closely considered the Refugee Convention, but ultimately decided on the basis of Italy’s domestic law and the European Convention on Human Rights. The ECHR noted “Refugees attempting to escape Africa do not claim a right of admission to Europe. They demand only that Europe, the cradle of human rights idealism and the birthplace of the rule of law, cease closing its doors to people in despair who have fled from arbitrariness and brutality. That is a very modest plea, vindicated by the European Convention on Human Rights.”
Several months ago, James Hathaway wrote on this blog of states’ resistance to compliance with various provisions of the Refugee Convention. He pointed out the severe negative consequences of this reticence, and they are certainly troubling. Nevertheless, Israel’s recent decision and the Hirsi Jamaa case are welcome reminders that sometimes domestic and regional laws can do the trick. Domestic laws protect refugees, and – while it is desirable for states to fully embrace the Refugee Convention – their failure to do so does not leave asylum-seekers without rights or courts without the power to enforce those rights.
Of course, courts have sometimes ruled the other way. The Israeli Court’s decision and Hirsi Jamaa stand in stark contrast to the U.S. Supreme Court’s 1993 decision in Sale v. Haitian Centers Council, which upheld the President’s executive authority to repatriate intercepted Haitians seeking asylum following a bloody coup. The Sale case does, however, demonstrate the far reach of domestic courts’ decisions in cases regarding refugees. As discussed at a recent conference, the Sale case had global implications and was used to justify repatriation of asylum seekers worldwide. One can hope that more decisions protecting refugee rights through domestic law would have a similar impact.