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Israel: Repeal of Law Authorizing Three-Year Detention of “Infiltrators”

(Sept. 24, 2013) On September 16, 2013, Israel’s High Court, with an extended bench of nine justices, repealed the Law for Prevention of Infiltration (Offenses and Jurisdiction) (Amendment No. 3 and Temporary Order) Law, 5772-2012 (hereinafter LPI 2012). (SEFER HAHUKIM [BOOK OF LAWS, Israel’s official gazette], No. 2332, Jan. 18, 2012; H.C.J. 7146/12 Adam v. the Knesset [in Hebrew], STATE OF ISRAEL: THE JUDICIAL AUTHORITY (last visited Sept. 24, 2013).)

LPI 2012 extended the original definition of “an infiltrator” (see Prevention of Infiltration (Offenses and Jurisdiction) Law, 5714-1954 (hereinafter “original LPI”), §1, 8 LAWS OF THE STATE OF ISRAEL 133 (5714-1953/54) [in Hebrew]), which had previously applied only to nationals and residents of certain Arab countries, to include any person, regardless of her/his place of origin, who is not a lawful resident of Israel and who entered the country through a border crossing that was not approved by the Minister of Interior (LPI 2012§1).

The original LPI had authorized the Minister of Defense or his designee to order the deportation of an infiltrator. (Original LPI §30.) LPI 2012 introduced temporary procedures for detention of “infiltrators.” It provided, among other procedures, that “an infiltrator” must be released if three years have passed from the day of initial detention. (LPI 2012 §5.)

According to the explanatory notes for LPI 2012 (Government Bill No. 577 [in Hebrew], Mar. 28, 2011, at 594-602, Ministry of Justice website), the objective of the amendment was to address the sizable rise in infiltration of illegal migrants through the border with Egypt. LPI 2012, accordingly, was designed to enable the detention of “infiltrators” for periods “significantly longer” than the 60-day limit under the law then in force. (Id. at 594.)

The High Court decision provides an analysis of the constitutional standards that apply to legislation that attempts to restrict human liberty in Israel. (H.C.J. 7146/12.)

The petitioners, Eritrean and North Sudanese citizens who were held in detention, joined by several human rights organizations, argued that LPI 2012 contradicted the constitutional right to liberty guaranteed under the Basic Law: Human Dignity and Liberty and did not meet the conditions under its limitation clause, which provides, “[t]here shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.” (Basic Law: Human Dignity and Freedom, The Knesset website (last visited Sept. 23, 2013).)

In defending the application of LPI 2012, the state argued that the rising number of “infiltrators” affected Israel’s public safety, the labor market, and the economy, the latter by requiring the state to extend to them medical, educational, and welfare services.(H.C.J. 7146/12 ¶¶ 12-18.)

According to information received by the High Court, the number of “infiltrators” who entered Israel illegally in recent years as of May 2013 was 64,649; 66% of those currently present in Israel are from Eritrea, 25% from Sudan, and the rest from other countries. Eritrea and Sudan, Justice Edna Arbel held, are two African countries that have gone through wars, internal conflicts, and great upheaval. A significant drop in the number of “infiltrations” into Israel since 2012, however, has been reported by Israeli authorities. (Id. ¶¶ 5-6.)

Addressing the parties’ claims, Arbel determined that even if one assumes that LPI 2012 complied with the other conditions of the limitation clause, it undoubtedly did not comply with the standard of proportionality that is required for the state to be permitted to violate liberty. (Id. ¶ 82.) According to Arbel, the goal of prevention of infiltration into Israel could have been achieved by other means, such as by utilizing and improving a barrier at the border with Egypt, or by substituting other restrictive measures for detention. (Id. ¶ 108.)

Arbel also stated that another reason to conclude that LPI 2012 did not meet the proportionality condition under the limitation clause was that when balanced against the harm to the petitioners’ right to liberty, the benefit to Israeli society from limiting “infiltration” could not outweigh the severity of imposing the measure of long-term detention. This balance, Arbel opined, could tilt in the future if continued infiltration were to pose a threat of severe harm to the state’s essential interests or if the situation in Eritrea, for example, were to improve and the return of “infiltrators” to that country became feasible. (Id. ¶ 115.)

Concurring with the views of Justice Arbel, other justices added additional analyses of the repealed legislation. (Id.)

Lawyers who represented one of the human rights organizations that joined the petition argued in an op-ed piece in an Israeli newspaper that the reason why the High Court in this case deviated from its common policy of judicial constraint, particularly regarding Knesset legislation and immigration policies, was the ” … simple realization, that detaining migrants for such a long period of time, without determining that they sinned, without being indicted, and without being able to deport them to another country, does not meet minimum standards ….” (Francis Radai & Avinoam Cohen, Moral Eclipse Was Blocked by the High Court [in Hebrew], YNET (Sept. 19, 2013).)

Criticism of the decision was voiced, however, in another op-ed piece. The author claimed that the High Court’s decision in this case reflected its distance from the public, especially from less wealthy Israelis in whose neighborhoods the “infiltrators” reside. (Galit Dahan Karlibach, H.C.J Lost the South [in Hebrew], YNET, (Sept. 22, 2013).)