The previous law was struck down by the High Court, which ordered the state to begin releasing the asylum seekers it was indefinitely detaining. Instead, the Knesset passed a law to circumvent the ruling and indefinitely detain asylum seekers in ‘open prisons.’

By Elizabeth Tsurkov

After a passionate debate and a filibuster by opposition members of Knesset, the new amendment to the Prevention of Infiltration Law passed 30 to 15 early Tuesday morning. The new amendment, hurriedly drafted and passed by the governing coalition, will replace the 2012 amendment to the law, which was nixed by the High Court of Justice three months ago.

The previous amendment to the law permitted the detention of asylum seekers without trial for a three-year period in Israel’s Saharonim and Ktziot prisons. Under the new amendment, asylum seekers will be jailed for one year in the prisons, followed by additional indefinite detention in a specially constructed internment camp operated by the Israeli Prison Service.

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Reports indicate that the new “Holot” Camp may become operational as soon as Thursday. Asylum seekers will have to sleep in the camp and be present at three roll calls per day to prevent them from venturing too far outside and gaining employment, which according to the government is the reason asylum seekers come to Israel.

The new law passed through three votes in the plenum, the Ministerial Committee on Legislation and the Knesset Interior Committee in less than 90 days to ensure that the state can continue to detain the hundreds of asylum seekers jailed under the abrogated 2012 amendment. The High Court ruling gave the state 90 days to examine the individual cases of all detainees and release them. Instead, the state chose to spend that time drafting and passing the new legislation.

The more than 1,000 asylum seekers still detained under the previous amendment, however, are not the sole targets of the law. Under the new amendment, all asylum seekers can be placed in the internment camp that has the capacity to hold 3,300 detainees. Interior Ministry officials hope that the camp serves as a “revolving door” leading to the deportation of asylum seekers from Israel.

The ministry used the previous law to pressure detained asylum seekers into leaving: the detainees were threatened with indefinite detention, and told that the only way to get out of prison is to agree to deportation to their home countries.

This constant pressure by Interior Ministry officials and prison guards, coupled with a hefty financial incentive – until recently, each asylum seeker was given $1,500 in exchange for voluntary deportation; a recent government decision raised the sum to $3,500 – resulted in over 800 Sudanese and 14 Eritrean nationals agreeing to sign “voluntary leave” forms and be deported.

As the legislation was drafted hurriedly, much is still unknown about the way the Holot internment camp will operate. Unlike any other detention facility in Israel, it has no operational guidelines, and will not include the quasi-judicial review that exists in other facilities.

The camp in located next to the Egyptian border in the middle of an IDF firing zone. A four-meter fence is being erected around the camp and it is unclear where the detainees will be able to go between the three daily roll calls. What is clear, however, is that detainees will not be able to lead independent lives and will be provided with only basic medical and welfare services.

The new law also retains the harsh language granting release from the one-year prison stay only in extreme humanitarian cases. Under this article, the human rights NGO Hotline for Migrant Workers, was able to release women, children and a few survivors of the Sinai torture camps.

However, no such exception exists in the new law for detainees in the “open” internment camp. This means that while under the previous law torture survivors could be released in some cases after months of detention, and all would have been released after three years, under the new law, all asylum seekers, including torture survivors, can be detained indefinitely in the Holot camp.

In an interview with +972 Magazine, the executive director of the Hotline for Migrant Workers, Attorney Reut Michaeli, said she does not regret her organization’s role in petitioning the High Court against the previous incarnation of the law, which brought about its abrogation, despite her assertion that new law is “clearly worse” from a human rights perspective as it permits endless detention instead of three-year prison sentences.

“The previous law did not belong in Israel’s legal codex and neither does the new law,” Michaeli said. “If organizations whose role is to preserve Israel’s democracy give up on petitioning the courts, it means we are giving up on a significant aspect of the democratic struggle.”

The new law, intended to circumvent the High Court ruling, was met with criticism not just from human rights organizations; legal advisers for the Knesset and Public Security Ministry both doubted it would meet the criteria set out in the lengthy High Court of Justice ruling that struck down its previous incarnation.

In his legal opinion submitted to the Knesset’s Interior Committee, Knesset Legal Advisor Attorney Eyal Yinon cautioned that merely labeling the new facility “open” does not make it so. The restrictions placed on asylum seekers in the new internment camp, he added, render it too similar to a prison to meet the demands laid out in the High Court ruling. Yinon’s warnings about the law did not lead to any significant alterations during the rushed committee hearings.

According to Attorney Michaeli, the new law “ignores the High Court ruling and repeats the mistakes the state made the last time around. The state keeps offering only binary solutions, which the court rejected: either detention or complete neglect.”

Looking ahead to the next legal battle, she said, “We trust that the court values human liberty and just as it put the authorities in their place when in comes to detention for the purpose of deterrence [of future asylum seekers from coming into Israel], it will do the same in the future.”

What remains to be seen is whether the Supreme Court is empowered enough to twice strike down a law passed by the government, in an environment increasingly hostile to the court and its power to overturn laws it deems unconstitutional.

Elizabeth Tsurkov is a refugee rights activists in Israel.

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