August 29, 2017

The challenge of having to deal with illegal immigration is an international challenge. It is also an Israeli challenge that Israel’s Supreme Court addressed yesterday in a ruling that was as misunderstood by the angry Israelis responding to it, as it was controversial. Generally speaking, Israel under Prime Minister Netanyahu did a superb job in stopping the main route of illegal infiltration from Africa via Egypt. A fence was erected, tougher means were adopted, and the fence essentially halted all illegal entrance through the Sinai Peninsula.

But one challenge lingers: dealing with those who already entered the country. A large community of illegal immigrants resides in southern Tel Aviv, and this community turned several neighborhoods into slums. The government attempts to erode their numbers by various means, but there are hurdles making this goal more difficult than expected.

One problem is that many of these immigrants come from countries to which they cannot return (Eritrea, Sudan), countries that are likely to persecute them. To overcome this challenge the Israel government signed an agreement with other countries (Rwanda, Uganda) that are willing to take in the immigrants, but there is a caveat: these countries will only take them in if they come out of their own free will. The government needs to convince the infiltrators to leave and cannot force them out.

A remedy for this problem was found using a variety of means: financial compensation for those willing to leave was one of them; arrest of those unwilling to leave was another one. The court, in its controversial ruling, limited the second tool to an extent that makes it completely inefficient. The country, the court ruled, can only detain these stubborn residents for two months. After two months, they must to be released.

The government responded to the ruling with expected, and somewhat justified, fury. Telling the immigrants that after two months they will be released takes the bite out of this means of persuasion. It is like telling the government that it has the right to limit the speed of cars but is forbidden from fining the drivers who exceed that limit.

Naturally, the court sees things differently. If the terms signed with other countries are that the immigrants will be leaving willingly, arrest violates these terms. In other words, arresting a person until he is willing to leave violates the meaning of free will. The court did not tell the state that it cannot deport illegal immigrants forcibly. It can. But to do this it will have to find a country willing to take in these deportees.

So, there are two institutions tricking one another here: The government is gaming the condition of free will by putting pressure on the immigrants to leave willingly. The court is gaming the policy of the government by limiting it in a way that makes it null.

What can the government do when the court ties its hands? The immediate response was to argue for new legislation.

Justice Minister Ayelet Shaked, Interior Minister Aryeh Deri and PM Netanyahu all said on Aug. 28 new legislation is the option they will pursue. Israel has a three-pronged approach to halting the flow of infiltrators, Netanyahu said. They include the fence at the border, the deportation agreements and implementation of the policy of deportation.

“In light of today’s developments, we will have to legislate new laws so we can enforce our policy of removing these illegal infiltrators from our country’s borders,” the PM said. Whether the court accepts such a move or declares it unconstitutional is another matter. Whether the countries’ willing to accept deported infiltrators accept this move or accept the court’s interpretation is also another matter.

The larger issue is the delicate balance that needs to be maintained between the interest of the country –- not to have illegal immigrants stay -– and the rights of the infiltrators –- not to suffer from inhuman treatment even though their act of entering the country was illegal.

It is natural that the government is more interested in the policies and less in the rights of illegal immigrants. It is the role of the court to moderate this tendency. Thus, the controversy and frustration of Israelis following the court’s ruling is a sign of a functioning system.