Israel forced to rethink ‘unconstitutional’ African expulsion plan

A historic 216-page ruling handed down on Sept. 22 by the Supreme Court of Israel marks a breakthrough for the young country’s muddled migrant and refugee law.
October 1, 2014

A historic 216-page ruling handed down on Sept. 22 by the Supreme Court of Israel marks a breakthrough for the young country’s muddled migrant and refugee law.

In their decision, seven members of the nine-justice panel struck down a recent amendment to Israel’s decades-old Anti-Infiltration Law, declaring it unconstitutional.

“We are dealing with laws based on which thousands of people are held, in violation of their freedom and dignity, in the middle of the remote desert,” Justice Uzi Fogelman wrote in his stern majority opinion.

In short, the Israeli justices decided that the government is no longer allowed to jail indefinitely and without trial any of the approximately 50,000 African migrants and asylum seekers who have “infiltrated” Israel’s southern border fence over the past eight years.

“A democratic society cannot deprive for such a period of time the freedom of people who do not represent a danger and are not serving a sentence for a crime they committed,” Fogelman wrote in the decision.

According to the ruling, the Holot prison facility — a fenced-in grid of living containers built last year as the latest addition to Israel’s expanding prison complex in the Negev desert, across the road from a cattle farm — must be shut down within 90 days. 

“People are dancing; people are giving speeches,” Sudanese inmate Jamal Yacob said by phone from prison on the night of the ruling.

Speaking a week later, however, Yacob said the mood at Holot had taken a downward turn — “because we don’t know what will happen from the Ministry of Interior.”

If the ministry follows court orders, it will release the more than 2,500 jailed migrants and asylum seekers, mostly from Eritrea and Sudan, back into the Israeli public by the end of December.

But even before the ruling came down, right-wing members of the Knesset, Israel’s parliament, were already brainstorming ways to circumvent the ruling.

According to the Israeli newspaper Haaretz, the religious Jewish Home Party chairwoman Ayelet Shaked, along with nine other Knesset members, drafted a bill that would allow them to resurrect legislation that contradicts the Basic Law of Human Dignity and Freedom — the Israeli law on which the Holot ruling was based.

Outgoing Interior Minister Gideon Sa’ar, who abruptly and unexpectedly announced his resignation just days before the court issued its ruling, reiterated this solution in a press statement. “We must consider amending the Basic Law of Human Dignity and Freedom in a way that will restrict the High Court’s intervention in Knesset legislation that aims to cope with infiltration and infiltrators into Israel,” he said.

Israel’s set of “basic laws” is its version of a constitution — so, if this plan goes through, the Knesset would be amending Israel’s constitution in order to keep Africans behind bars.

“Theoretically they could do that, but I think it would be extremely controversial,” said Yonatan Berman, a human-rights attorney on the winning team. He said that within the coalition of five right-wing parties that form a majority in the current Knesset, “the Jewish Home Party and some members of the Likud Party are pushing for that, but I think other parts of the coalition, like Yesh Atid and Hatnua, who perceive themselves as more liberal, would resist. It would be a big fight, not only between that coalition but between other coalitions.”

Berman said he hopes Sa’ar’s yet-to-be-named replacement for interior minister will maintain a healthier distance from the Holot issue, which was seen as one of Sa’ar’s pet projects.

“Hopefully, whoever comes into office won’t see this as a personal insult or defeat,” Berman said, “and will not feel the political urge to immediately try to overcome or bypass the Supreme Court judgment.”

On the other hand, some Tel Aviv residents who supported the creation of Holot feel abandoned by Sa’ar.

“It definitely came as a shock,” said 28-year-old South Tel Aviv neighborhood activist and TV news darling May Golan of the minister’s departure. “I sat with him for several meetings. I believed in the man. I looked him straight in the eyes. It hurts. We do believe the minister that will come after will continue on the same route, but it’s a big disappointment because he promised us he would do something.”

In a last-minute plea to Supreme Court justices, Golan staged a quiet rally outside the Tel Aviv Museum of Art on Sept. 15. At the event, she invited nine of her fellow South Tel Aviv residents to tell anecdotes about African crime — from petty theft to rape — to nine empty chairs lined up before them, symbolizing the nine justices on the panel.

“They’re about to make a verdict that will affect these people’s entire lives,” Golan told the Journal after the event. “I want the judges to hear them.”

A back-roads approach

Elsewhere in Tel Aviv, about a week before the Supreme Court ruling, 34-year-old asylum seeker Nimer Ishag — who came to Israel from the razed village of Narjiba in Darfur, Sudan — sat in the cramped second-story offices of Daniel Bar, a Russian-Israeli lawyer well-known in the Sudanese and Eritrean communities.

Bar has spent the past few months devising lower-profile ways to keep a handful of Darfuri clients, including Ishag, out of prison.

Russian-Israeli attorney Daniel Bar, right, is appealing the state’s decision to send his client, Sudanese asylum seeker Nimer Ishag, left, to Holot.

Ishag clutched a stack of legal papers pertaining to his case — his ticket to a few more months of freedom. The asylum seeker had been summoned to the desert prison in July, and would be living there now had he not sought out private legal help.

“The attack on my village happened before my eyes,” Ishag told the Journal, explaining why he left Darfur. “I saw them light my house on fire. I saw them kill my brother.”

Across the table from Ishag, a polished young Palestinian attorney from Jaffa who works with Bar translated Ishag’s story from Arabic to English. Her eyes widened in sympathy as he described hiding in the forest for weeks with other members of his tribe while the Sudanese military, in collaboration with Janjaweed militia, tried to hunt them down. 

While he was on the run, the asylum seeker said, “My wife gave birth. She died in our second camping place, from fatigue. She couldn’t continue. The baby died two days later.”

When he can bear it, Ishag talks by phone to his only surviving son — now 8 years old and living with Ishag’s parents in a refugee camp in Sudan.

“He knows I’m his father, but he doesn’t understand why I’m far away,” Ishag said, trembling. “All the time he says, ‘Come home, come home.’ ”

Ishag said he had to escape the camp because government soldiers, in cahoots with the Janjaweed, were sneaking in at night to kidnap or kill young men from his tribe — part of an ethnic genocide still plaguing the Darfuri people today.

“Because I’m from Darfur, and because I’m coming from Israel, I’m afraid they will kill me if I go back,” he said.

Apart from Ishag, Bar’s other clients resisting indefinite sentences at Holot include two men tortured by Bedouins in the Sinai desert before being dumped at the Israeli border fence, a former spy for the Sudanese rebels and a former fighter in the Sudanese Liberation Army (SLA).

A photo of the latter, holding a gun next to a truck marked “SLA,” is now propped on Bar’s window sill.

“These are the success stories,” the attorney said, pulling a pile of red file folders from his file cabinet. “Most of the human-rights organizations are narrative oriented. I’m result oriented.”

All Holot summonses have been halted as of press time on Sept. 30, but if the Israeli Knesset finds a way to keep Holot open, or draws up another plan to drive undocumented Africans out of the country — as is widely expected — Bar’s results may be lifesaving.

The attorney has accompanied multiple clients to their four- to six-hour asylum interviews, where, he said, Ministry of Interior staff try relentlessly to find a hole, no matter how small, in every answer. “As a normal smart person, you have no chance” of approval, Bar said. “They will prove you wrong in everything.”

Under international law, Israel is not allowed to forcibly deport Eritreans or Sudanese nationals because of dangers in their home countries.

However — as noted in the recent Supreme Court decision — the Israeli Ministry of Interior has avoided setting up a functional asylum application system that would differentiate between individuals. 

“The true picture of who is an infiltrator is certainly more complex than any party wishes to present,” Fogelman wrote in his majority opinion. However, he said, “Alongside the economic motive, it can be assumed that many of the infiltrators [came] to the State of Israel … to escape from the dangers they face in their country.”

Elsewhere around the world, on average, about 80 percent of Eritreans and 70 percent of Sudanese seeking asylum are approved as refugees.

Under pressure from African protesters — as well as news media and human-rights organizations — Israel began accepting asylum applications within the past year. But as of March 2014, of a few thousand applications handed in, it had rejected 450 and approved only two. The rest were pending. (Thousands more applications have reportedly been turned in since March; however, the ministry could not provide the Journal with updated statistics.)

So, bypassing Israel’s broken asylum process, private attorney Bar has been putting his clients’ harrowing backstories to use in a different way. He’s been describing their ordeals in Sudan at length within court appeals against their mandatory Holot summonses — on the grounds that the pre-prison “hearings” currently held by the Ministry of Interior don’t take into account any of the asylum seekers’ testimony. 

“They just let him talk and send him to Holot without even addressing what happened in the room,” Bar said.

“This does not qualify as a hearing,” he said. “It’s a monologue, at best.”

Bar’s tactics appear to be breaking new ground.

A few of his clients have been granted temporary freedom from Holot as the appeal process plays out between Bar and the state. Their suspended sentences all have been granted by one judge in the north: Haifa District Court Vice President Ron Shapiro, a left-leaning judge hailing from Kibbutz Degania Alef, Israel’s oldest kibbutz. 

Now that Holot has been outlawed, Shapiro has invited Bar to try to take the appeal process in a direction of his choosing.

In his next response, Bar said he plans to demand the Israeli Ministry of Interior grant his clients some kind of real status in Israel — integrating them into the system instead of seeking another way to push them out.

‘Make their lives miserable’

In his decision outlawing Holot, Fogelman wrote: “The heart understands the difficulties, but the mind cannot accept the chosen solution.”

The “difficulties” in question form the core argument against letting Sudanese and Eritrean asylum seekers stay in Israel: Their overcrowded presence in certain low-income Israeli neighborhoods, and mostly in South Tel Aviv, has angered many longtime residents who hold the Africans responsible for the culture of crime and poverty around them.

Tel Aviv police have not released any comprehensive data comparing crime rates between native Israelis and African migrants; however, South Tel Aviv activist Golan claimed to the Journal that “every seven minutes, an infiltrator commits a crime in South Tel Aviv.” She said she has spoken with “hundreds” of women raped by Africans.

“I’m just so upset,” she said by phone a few hours after the court ruling came down. “I’m 28 — I can pick my things up and go out of my neighborhood. But the 70-year-olds, the 80-years-olds — they can’t. The court is abandoning a whole society of people who have nowhere to go. It’s heartbreaking.”

Lizi Hameiri, another Israeli activist at Golan’s rally, told a group of reporters, “South Tel Aviv is our Harlem.” She held up a sign that read, in English, “A refugee will not rape, beat and rob his host! Nearly all of them are illegal work migrants!”

Walking the streets of South Tel Aviv and speaking to residents on a summer evening, one can see that the situation is more complex. Filipino, African and Israeli children wearing tiny backpacks walk home from school hand in hand. A circle of Russian men playing cards along Neve Sha’anan — the central walking street that runs through the neighborhood, bursting with African food and dialects — greet their Sudanese friends who have been granted a day pass out of Holot. An elderly Israeli man runs to help an Eritrean toddler waddling toward his ball, which has rolled into a gutter.

Like with any ethnic group, “There are some good, some bad,” said Omar N., a young Palestinian man who moved from Hebron to South Tel Aviv for work, of the African migrants. He said some of his Eritrean and Sudanese friends came looking for a better life, while some escaped real threats in their home country. “It’s half and half,” he said.

In street interviews with the Journal, various Israeli residents blamed the government’s lack of investment in the neighborhood, rather than the Africans, for its dilapidated state.

“People are hypocrites,” said Anat Erez, a 45-year-old Israeli woman who has worked for many years at a furniture store near Tel Aviv’s famously seedy Central Bus Station. “Before the Africans came, there was always crime, there were always druggies — it was actually worse.”

In 2012, then-Minister of Interior Eli Yishai revealed to Israeli news site Ynet his plan for handling infiltrators: “For the time being, I plan to lock them up,” he said. “This I can do without anyone’s authorization. I am doing it for the good of the State of Israel. I have asked the Treasury for a budget increase to build more detention facilities, and until I can deport them, I’ll lock them up to make their lives miserable.”

During spring 2014, even those not summoned to Holot began encountering chaos at new, cramped Ministry of Interior offices set up specifically for illegal Africans in a back alley of North Tel Aviv. They waited in line for hours — sometimes days — for residency visas that would last a few weeks or months. Some were turned away without any papers at all, leaving them unable to work and subject to roundup by Tel Aviv police.

“There are refrigerator-size people guarding the entrance” to the Ministry of Interior building, attorney Bar said. And inside, he said, “Everything is very physical. They grab you when they want you to sit down or get up. They’re treating you like a Hamas prisoner in the middle of Tel Aviv.”

As a result of government efforts, about 6,000 Sudanese and Eritrean nationals accepted $3,500 from the Israeli government to board planes to Sudan, Eritrea, Uganda or Rwanda over the past year.

The latter two countries made a back-room agreement with Israel to accept the migrants, but are reportedly now denying them legal, long-term residency and deporting some to their home countries upon arrival. Thus the exodus has resulted in a humanitarian disaster, in which hundreds of Sudanese and Eritrean men who left Israel are now being tortured, jailed or disappeared completely back in their native countries.

Departures since have slowed to around 150 per month. And new arrivals are almost at a standstill, thanks in part to a new, $400 million fence along Israel's southern border.

South Tel Aviv resident Orly Levi, a mother of three who said she is afraid to let her children leave the house at night, said the small exodus of thousands of the Africans has had zero impact on the neighborhood. “Holot is not enough,” she said. “The prison should just be a temporary solution — a preparation for the final step” of expelling them all from Israel.

Balance of power

Last week’s high-profile Supreme Court ruling against locking up undocumented Africans wasn’t the first of its kind.

One year ago, in a very similar decision — also around the September holidays — the justices struck down a previous amendment to the Anti-Infiltration Law that allowed Israel to lock up illegal aliens for three years without trial at Saharonim, another prison in the desert complex.

In that ruling, Justice Edna Arbel wrote: “I would like to believe that the state will find a way to deal with the situation with the means at its disposal, so as to relieve the stress of local residents.”

The Knesset responded by simply adding an amendment to the Anti-Infiltration Law that would allow them to open Holot — an “open facility” run by the Israel Prison Service next door to Saharonim. Holot inmates could come and go from the facility but would be required to check in inside the camp three times each day.

Holot prisoners wait in long lines at the front gate to enter or exit the facility, and must check in three times per day.

Arbel, in the final decision of her 10-year career, now condemns the amended law as “the same old lady in a new dress.”

Some members of the Knesset took this as a challenge to their authority.

Said Jewish Home Party chairwoman Shaked in her press statement on the ruling: “It’s time to change the way judges are selected, from cloning judges in the ‘buddy system’ to a balance between activism and conservatism.”

Yariv Levin, chairman of the ruling Likud Party, called the ruling “post-Zionist” and said it “undermines Israel’s very existence as a Jewish state and tramples the Knesset’s sovereignty.”

Sa’ar wrote on Facebook: “The last word must be that of the legislature.”

The court tried to soften the blow to the Knesset in its decision: “We do not seek to plow a field without the permission of the legislature,” Fogelman wrote.

He stressed that he was not advising elected leaders on how to do their jobs. “We held a judicial review,” Fogelman wrote. “We did not examine the wisdom of the law; we examined the constitutionality.”

Of finding Holot unconstitutional, he wrote: “We did it without desire; we did it out of obligation.”

Still, the ruling reportedly marks the first time in Israel’s history that the Supreme Court ever has struck down a law twice in a row. And its language demands the next solution be more than a runaround — and that it fall more closely in line with international law. 

Arbel opined that, considering the hefty and sudden burden of African asylum seekers on the small country of Israel — and contrary to media reports — Israel has reacted more kindly than some Western countries might.

However, Fogelman wrote in his majority opinion, “There is a discrepancy between state law and the norms of international law that bind the State of Israel.” 

Judges found that the maximum holding period for illegal aliens in most Western countries doesn’t exceed a few months. And even in countries with the harshest detention policies, they said, there are ways for detainees to request asylum or otherwise move forward in immigration court. 

Human-rights attorney Berman, on the winning team, said another noted difference between this September’s decision and the last was that judges acknowledged personal freedoms “beyond the biological ability to survive.”

“There is some very strong language that we haven’t seen before, about seeing asylum seekers as whole human beings who have personalities and human needs and plans for the future — spiritual, intellectual, social needs,” Berman said. “For me, it’s an obvious thing to say, but it’s an important thing.”

On a blistering September afternoon, 26-year-old Nouradin Adam, a young asylum seeker from Darfur who spent years working in Israel and learning Hebrew before he was summoned to Holot, said he’s watched many of his fellow prisoners sink into a deep depression.

“This situation makes you stop dreaming,” he said. “Yesterday is the same as today, and tomorrow will be the same.”


Aside from total expulsion, Israel has for years avoided drafting policy to accommodate its new population of 50,000 African migrants and asylum seekers.

In 2009, a Knesset report found that “the State of Israel is the only Western Democratic State that has no immigration policy.”

And by the end of 2011, another Knesset report found that “close to five years after the start of the massive infiltration of African asylum seekers, the State of Israel still lacks a coherent policy to cope with this phenomenon and to determine the rights and duties of this population and care for their needs.”

Reut Michaeli, executive director of Hotline for Refugees and Migrants, Israel’s oldest non-governmental organization advocating for African asylum seekers, argued that the new   ruling should be viewed as “a window of opportunity.”

“I really, really hope the government will be able to see that,” she said. “We need to learn from our lessons and create something different for the benefit for everyone. That should be the public debate — not what we should do next to those ‘infiltrators,’ but how do we build a transparent, functioning, humane, professional system that provides for everyone? For asylum seekers, but also for the [Israeli] veterans” living in South Tel Aviv.

According to an investigation by Haaretz, Israel spent well over $100 million to build and operate Holot over the past year.

If that money were to be invested in South Tel Aviv, Michaeli said, “How many health clinics can you build, and how many schools? How many social workers can you hire? What kind of services can you provide to the community? What kind of community centers can you build that allow people living together to get to know each other?”

Most recently, in a May 2014 report, Israel’s state comptroller scolded the government for avoiding the problem entirely.

“Indeed, the two groups — foreigners and citizens — are intertwined with one another,” he wrote, “especially in the areas where many of the foreigners reside. Neglect of one group by the state undermines and damages the living conditions of the other.”

Although he acknowledged the task is “wide in scope and complex,” the comptroller said that “in light of the severe plight of the South Tel Aviv residents and the danger to their well-being and health, it must be carried out without delay.”

In its historic ruling last week, the Supreme Court of Israel urged the same.

“There is no dispute that the state of affairs in South Tel Aviv is difficult and demands attention,” Fogelman wrote. However, he added, “State agencies face the duty to find appropriate solutions. The plight of the residents of South Tel Aviv … is in the hands of the legislature.” 

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