About 19% of the infiltrators' population are citizens of Sudan, a country also located in northeast Africa on the shores of the Red Sea, northwest of Eritrea. Sudan, now the third-largest country on the African continent, is a country plagued by military coups and internal struggles, with most of its residents living in extreme poverty. In 2003, an uprising broke out in the western region of Darfur, which turned into an ethnic struggle that was accompanied by a mass massacre that some consider genocide. In 2011, South Sudan declared its independence from Sudan (now known as the "Republic of Sudan") after a long and bloody civil war between the north and the south. Despite a significant improvement in the situation in the country since 2011, reports of human rights violations continue to occur in various parts of the country (see Indep. Expert on the Situation of Human Rights in the Sudan, Rep. on the Situation of Human Rights in the Sudan, Human Rights Council, U.N. Doc. A/HRC/24/31 (Sept. 18, 2013) (by Mashood A. Baderin) (Available Here)).
- At this time, Israel does not deport Eritrean or Sudanese nationals to their countries of origin. Eritrean nationals are not deported from Israel under a temporary policy of non-deportation. This is in accordance with the principle of non-refoulement, according to which a person should not be removed to a place where his life or liberty is in danger. The principle of "non-refoulement" is a principle of customary international law, enshrined in Article 33 of the Refugee Convention (International Convention Relating to the Status of Refugees, 21 SC 65, 5 (accessed for signature in 1951) (hereinafter: the Refugee Convention or the Convention)) and Article 3 of the Convention against Torture and against Inhuman or Degrading Treatment or Punishment, 21, 249 (opened for signature in 1984), and it is also binding on Israeli domestic law (HCJ 4702/94 Al-Tay v. Minister of the Interior, IsrSC 49(3) 843, 848 (1995) (hereinafter: the Al-Tay case); Parashat Adam, paragraph 8 of my opinion). In contrast, in the case of Sudanese nationals, as a declared policy – which is not subject to examination in the petitions before us and I do not take any position on it – Israel does not apply any protection. Since 2012, South Sudanese nationals, with which Israel has diplomatic relations, have been returned to their country of origin, subject to an individual examination of asylum claims. However, the country does not return infiltrators who are citizens of Sudan (the "Republic of Sudan") to their country of origin due to practical difficulties stemming from the lack of diplomatic relations with that country. It should be noted that although infiltrators who are in Israel are not granted work permits, the prohibition on the employment of those who are subject to the temporary non-deportation policy or those who have submitted an asylum application and whose application has not yet been processed has not yet been completed (see the state's declaration in the High Court of Justice case 6312/10 Kav LaOved v. The Government [published in Nevo] (January 16, 2011) (hereinafter: the Kav LaOved Third case); The Adam Case, in paragraph 17). It should be noted that the state has announced its intention to take steps to enforce the prohibition on working as of December 12, 2013 with regard to infiltrators staying in the detention center (see the announcement by the Ministry of Interior and the Population and Immigration Authority "On the Establishment of a Residency Center for Infiltrators and the Beginning of Enforcement on Employers of Infiltrators" (available here)).
- The policy of non-deportation that applies to Eritrean immigrants, and the fact that Sudanese nationals cannot be deported to their country of origin in practice, has resulted in the continued stay of many infiltrators within the country's borders these days. However, many of the infiltrators believe that it is not enough that they are not deported to their countries of origin. Against the background of the dangers faced by some of them in the countries of origin, and in light of the ongoing human rights violations in these countries, the latter claim that they are entitled to refugee status. In view of the implication that this has on the constitutional examination required in the petitions before us, we will briefly discuss the normative and factual basis necessary for the matter.
A "refugee" is a person who is outside the country of his citizenship due to "a well-founded fear of being persecuted on grounds of race, religion, citizenship, belonging to a particular social grouping or political outlook, and who cannot or does not want to seek the protection of that country because of the aforesaid fear" (Article 1(2) of the Refugee Convention). In order to be recognized as a refugee, a person is required to submit an asylum application to the host country – the country to which they arrived from their country of origin – for asylum (in some countries, asylum applications are submitted to UNHCR, and in others, they are submitted directly to the government authority in charge of the field). The Refugee Convention requires that a person recognized as a refugee be granted rights in various fields, and prohibits deportation to countries where his life or liberty would be endangered for the aforementioned reasons. According to a UNHCR report, as of the end of 2012, more than 9.8 million people worldwide were recognized as refugees. Most of them were concentrated in African and South Asian countries, and a minority in European countries and the United States (see U.N. High Comm’r for Refugees, UNHCR Statistical Yearbook 2012, at 26 (2013) (Available Here) (hereinafter: UNHCR's latest statistical report)). The State of Israel, which was one of the 26 countries whose representatives took part in drafting the Refugee Convention, signed the Convention in 1951 and became one of the first countries to ratify it in 1954 (partly because the population that the Convention was intended to treat was that of World War II refugees, including Jewish Holocaust refugees) (see Tali Kretzman and Adriana Kemp, "The Establishment of a Refugee Regime in Israel: Between a State and Civil Society" Empowerment in Law 55, 64 (Guy Mondlak and Mimi Eisenstadt eds., 2008)). Subsequently, the State of Israel also acceded to the Protocol Concerning the Status of Refugees of 1967, 21 and 23 (opened for signature in 1967), which expanded the definition of refugees and applied it to those who were outside their country due to events that occurred after January 1, 1951. Although the Refugee Convention has not been absorbed into Israeli law, it also has significance in our domestic law. This is in view of the interpretive presumption established in our case law, according to which there is a compatibility between the laws of the State and the norms of international law that bind the State of Israel. According to the "presumption of conformity", the laws of the state will be interpreted – as far as possible – in a manner consistent with international law (see, for example: Additional Criminal Hearing 7048/97 Anonymous 50' Minister of Defense, P"4:55(1) 721, 743-742, 767 (2000); Tomer Brody "The Status of International Law in State Law" International Law 69, 72-74 (Robbie Siebel ed., 2nd ed., 2009)).
- To date, as noted, no legislative step has been taken to incorporate the Convention as part of Israel's internal law. However, the state's consistent position is that it considers itself obligated to implement the provisions of the Refugee Convention. Despite this, until recently, infiltrators had difficulty applying for asylum in order to obtain refugee status. Although beginning in 2009, the handling of asylum applications was gradually transferred to the RSD (Refugee Status Determination) unit in the Ministry of Interior from the agency that handled the matter ( UNHCR), the State Comptroller's report indicates that in practice, until the end of 2013, the Israeli Ministry of Interior did not begin to investigate asylum applications submitted by Eritrean and Sudanese immigrants who were outside detention facilities. Except in exceptional cases (State Comptroller's Report, at p. 69; for more details see AAA 8675/11 Tadessa v. Asylum Seekers Treatment Unit, [published in Nevo], paragraphs 9-11 (May 14, 2012)). This fact has implications for our case. In many countries, the very application for refugee status leads to the application of a unique and separate legal system from that which applies to illegal aliens who do not claim the right to special protection and who cannot be removed for technical reasons. This is against the background of the recognition of the exceptional circumstances of those who left their country not out of choice or preference, but out of necessity and coercion (see, for example, the distinctions made in European law: U. Agency for Fundamental Rights, Handbook on European Law Relating to Asylum, Borders, and Immigration 41-57, 135-57 (2013) (available here); Mathilde Heegaard Bausager et al., Eur. Comm'n, Study on the Situation of Third-Country Nationals Pending Return/Removal in the EU Member States and the Schengen Associated Countries, Annex-1 Country Reports (2013) (HOME/2010/RFXX/PR/1001) (available here) (hereinafter: the 2013 States Appendix)). In Israel, this distinction is not acceptable (see Neta Moshe, Policy Towards Asylum Seekers in the European Union and its Central Countries, 5, 41 (Knesset Research and Information Center, 2013) (available here)). Thus, for example, the provisions of chapter D of the Prevention of Infiltration Law, by virtue of which infiltrators can be instructed to be in a detention center, do not distinguish between asylum seekers and other foreigners who cannot be deported: both of them are required to report to the detention center; the fact that an asylum application has been submitted does not change the conditions of their stay; and the pace at which an asylum application is processed does not establish grounds for release. The provisions of section 30A of the Prevention of Infiltration Law, which allows an asylum seeker to be held in custody, indeed distinguish between an asylum seeker and other illegal aliens with regard to the grounds for release from custody (the Commissioner of Border Control may release an asylum seeker from custody if the processing of his application has not begun three months after the date of its submission (section 30A(b)(5) of the Law); and also if no decision has been made on the application six months after the date of its submission (section 30A(b)(6) to the law) – However, although the filing of an asylum application may speed up the pace of release, it does not prevent the very fact of being held in custody. To complete the picture, it should be noted that in the state's response to the request for additional details, it was stated that as of March 25, 2014, about 50% of the asylum applications submitted by infiltrators in Israel were submitted by infiltrators who were held in custody, and about 3% of them were submitted by infiltrators who were held in a detention center (which, as noted, had been populated about three months earlier, on December 13, 2013).
- Not only does this distinguish the State of Israel from other countries in the world. A comparative look shows that the global rates of recognition of asylum applications submitted by Eritrean and Sudanese nationals – the countries of origin of most of the infiltrators in Israel – are much higher than in Israel. In 2012 (the last year for which there are current data), the global rate of recognition of Eritrean immigrants as refugees was 81.9%; and those of origin in Sudan – 68.2% (see UNHCR's latest statistical report, pp. 102, 104). The data provided by the state, updated as of March 3, 2014, show that less than 1% of asylum applications submitted by Eritrean nationals have been received in Israel so far, and not a single one of the applications by Sudanese nationals (in numbers: 1,468 asylum applications were submitted by infiltrators of Eritrean origin; of these, about 980 applicants have been interviewed so far, and 444 applications have been decided, 442 were rejected, and two were approved. In addition, 1,373 asylum applications were submitted by infiltrators originating in Sudan; Of these, 505 applicants were interviewed; and 9 applications were decided – all of them were rejected).
- The state and the petitioners disagree on the interpretation that should be given to these data, and each side seeks to draw a different conclusion from them. The state emphasized the low number of asylum applications submitted in relation to the scope of the population of infiltrators in Israel, a number that attests, according to it, to the motives that led the infiltrators to come to Israel in the first place. On the other hand, the petitioners argued that the low number was explained by the long period during which Eritrean and Sudanese citizens were not given the opportunity to apply for asylum; that the state did not act to inform them that it was now possible to do so; during their long treatment (taking into account that most of them have not yet been decided); and at the zero rate of their acceptance. The parties are also at loggerheads over the context in which the low acceptance rate of asylum applications by Eritrean and Sudanese nationals should be presented. The State and the petitioners in HCJ case 7385/13 are of the opinion that the State of Israel's situation is significantly different from that of other countries around the world, inter alia, because it is the only developed country that has a long land border with the African continent; its location relative to its neighbors, which leads to the fact that infiltrators do not continue from it to other countries; and its geopolitical situation that makes it difficult for it to cooperate with its neighboring countries in dealing with the phenomenon in order to reduce its scope. As other countries in the world are doing (on interstate cooperation elsewhere in the world, see James C. Hathaway, Refugees and Asylum, in Foundations of International Migration Law 177, 183 (Brian Opeskin, Richard Perruchoud & Jillyanne Redpath-Cross eds., 2012); Regulation 604/2013 of the European Parliament and of the Council of 26 June 2013 Establishing the Criteria and Mechanisms for Determining the Member State Responsible for Examining an Application for International Protection Lodged in One of the Member States by a Third-Country National or Stateless Person (Recast), art. 17(2), 2013 O.J. (L 108) 31, 41-42 (Dublin III) (available here); For the argument that such cooperation should be limited and only in special circumstances, see: Michelle Foster, Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State, in Human Rights & Refugee Law 422 (James C. Hathaway ed., 2013)). All of this, it is claimed, led to Israel being forced to absorb tens of thousands of infiltrators from Eritrea and Sudan, until in 2011 it became the country that absorbed the highest number of Eritreans in the world. On the other hand, the rest of the world, and in particular the European Union, are dealing with tens to a few hundred of Eritrean and Sudanese nationals seeking asylum in their territory – volumes that allow them to have their asylum claims recognized at higher rates. On the other hand, the petitioners claim that this does not explain the low rate of recognition, taking into account that the rate of all asylum seekers (and not only those originally from Sudan and Eritrea) in these countries is similar – and even higher – to that of Israel. It was claimed that in 2013 alone, asylum applications were submitted in EU countries at a rate approaching 1% of the total EU population (398,234 asylum applications in total). This is despite the fact that the rate of those who entered Israel without a permit for 9 years was about 1% of the total population (for the claim that the burden of treating refugees currently imposed on Israel is relatively small compared to other countries in the region, also taking into account its economic situation, the size of the population and its territory, see Tali Kretzman-Amir, "Introduction" to Refugees and Asylum Seekers in Israel: Social and Legal Aspects 7, 16 (Tali Kretzman-Amir ed., to be published in 2014) (the article will be referred to below): Kritzman-Amir; the book will be referred to as "Refugees and Asylum Seekers in Israel"). The petitioners added that a comparison with what is happening in the Western world shows that even in countries that recognize Eritrean and Sudanese nationals as refugees at a low rate, the rates of recognition of them as entitled to "supplementary protection" (which includes the granting of official status and certain protections that are not required by the Refugee Convention) are very high (for example, it was noted that in 2012 in the Netherlands – which the petitioners refer to as an example of a Western country with low rates of recognition – only 2.6% of Eritrean immigrants were recognized as refugees. However, 57.9% of them were found to be entitled to supplementary protection).
(II) The Dimensions of the Phenomenon - An Up-to-Date Look
- Before we proceed to the constitutional examination of the principles of Amendment No. 4, and for the purpose of formulating the factual basis that will be the basis of the constitutional analysis, we will refer to the up-to-date information that has been provided to us regarding the scope of the phenomenon of infiltration and the ways of dealing with it that are practiced today. As I noted in the Adam case, presenting a picture as clear as possible is essential to clarifying the questions to be decided (paragraph 1 of my opinion), since constitutional review in all its stages is not conducted in a vacuum. It must rely not only on the basic values that the state seeks to uphold within its borders, but also on its needs and on the customary reality of life that it is required to deal with (see and compare: High Court of Justice 4542/02 Kav LaOved v. Government of Israel, IsrSC 61(1) 346, 377 (2006) (hereinafter: the Kav LaOved case); High Court of Justice 466/07 Gal-On v. Attorney General, [published in Nevo] 15 (January 11, 2012)). Indeed, exceptional emergency situations of their nature may alter the constitutional balance in a way that justifies a temporary and limited infringement of rights, when the infringement is inevitable (see, for example, High Court of Justice 4634/04 Physicians for Human Rights v. Minister of Public Security, IsrSC 62(1) 762, 782 (2007); High Court of Justice 10466/08 Elhayani v. Commander of IDF Forces in Judea and Samaria, [published in Nevo], para. 19 (January 19, 2009); First Citizenship Law, at pp. 340, 550-551). Thus, for example, at a time when Israeli citizens were subjected to incessant acts of terror that threatened their lives, the importance of protecting the security of the state and its citizens was recognized even at the cost of significant infringement of basic rights (see Criminal Appeal 6659/06 Anonymous v. State of Israel, IsrSC 62(4) 329, 373-374 (2008)). Similarly, international law also recognizes that exceptional measures may be taken "in time of war or in other grave and exceptional circumstances" (see Article 9 of the Refugee Convention; see also Article 4 of the Covenant on Civil and Political Rights, 21 SC 1040, 269 (opened for signature in 1966)). In our case, if it becomes clear that many thousands are crowded on the borders of the country and seek to infiltrate into it, we will be faced with a constitutional balance of one kind; And where it turns out that the phenomenon of infiltration has almost completely stopped, a different kind of balance will be required. The existence of a real possibility of removing infiltrators from the country within a short time created one constitutional balance; and a reality in which they cannot be removed at all – a different constitutional balance. Different factual data may, therefore, lead to a different legal outcome.
- Against this background, we will first discuss the rates of infiltrators' entry into Israel. As mentioned, there are currently close to 50,000 infiltrators in Israel. An examination of the data shows an upward trend in the number of infiltrators entering Israel between 2009 and 2011 (in 2009 5,235 infiltrators entered Israel; in 2010 – 14,702; and in 2011 – 17,312) – a trend that stopped in 2012, when there was a decline in the number of infiltrators entering Israel (10,441 infiltrators entered Israel that year) (see Population Authority data). The state notes that there was a significant decline in the entry of infiltrators into Israel between June 2012 (when 928 infiltrators entered the country) and July of that year (when only 282 infiltrators entered). According to the state, this gap is explained by the fact that in June 2012, Amendment No. 3 to the law began to be implemented. The petitioners, on the other hand, attribute this decrease in the number of infiltrators entering Israel to the completion of large sections of the fence on the Israeli-Egyptian border (in June 2012, 75% of the fence was built on the Israel-Egypt border, and another 7% were completed during July of that year). Whatever the reasons for the decline in the number of infiltrators in 2012, there is no dispute that in the following year, 2013, there was a steep decline in the number of infiltrators entering Israel: according to the state's response, in 2013 only 45 infiltrators entered Israel. Four infiltrators entered Israel in the three months after the verdict in the Adam case was rendered, and 19 infiltrators entered Israel after Amendment No. 4 came into effect until June 2014, after they crossed the fence built on the Israel-Egypt border. The latest figures from the Population Authority show that during January 2014, 12 infiltrators entered Israel; In March, one infiltrator entered the country's borders; in April - four infiltrators; And during the months of May-June 2014, not a single infiltrator entered the country.
- Parallel to the decline in the number of people entering Israel, there was an increase in the number of people leaving Israel at the end of 2013 . During the first half of 2014, 4,795 infiltrators left Israel, including 3,676 Sudanese, 696 Eritreans, and 423 from other African countries. The state updated that 112 infiltrators from Eritrea and Sudan left Israel as part of two arrangements signed with "third countries," the purpose of which is to enable the "safe exit" of infiltrators residing in Israel to countries other than the countries of origin of the infiltrators. These arrangements, according to the state's response, are the result of contacts conducted with various countries based on Resolution 3936 of the 32nd Government, "Establishing a Detention Facility for the Stay of Infiltrators and Curbing Illegal Infiltration into Israel" (December 11, 2011), and they allow for the deportation of infiltrators to these countries who cannot be returned to their country of origin. Due to the high political and political sensitivity, the parties undertook to refrain from revealing the identities of the third countries with which the arrangements were signed, and therefore the state refrained from specifying which countries were involved. However, according to the state, these are countries where the situation allows safe passage to them (and therefore the state believes – and I do not express any position on this matter – that an infiltrator who refuses to travel to these countries is considered to be not cooperating with his deportation). The state also emphasized that the Attorney General was updated on the aforementioned arrangements, and approved each of them from a legal aspect. In the hearing before us, counsel for the state noted that according to the arrangements signed with the third countries, the consent of the infiltrator is required for his departure to these countries, which are not prepared for people to arrive in their territory bound or bound (and for this reason, the counsel for the state noted, arrangements regarding the "exit" of infiltrators from the country and not of "forced deportation"). It was also noted that in view of the request of third countries not to create a congestion of infiltrators; And out of a desire to make sure that these exit routes are indeed "safe", it was agreed that the process of removing the infiltrators in this way would be done in a gradual and moderate manner.דובר
(III) Interim Summary
- Let us summarize the situation as of this time. It seems that today we are facing a real change in the dimensions of the phenomenon of infiltration. As described above, beginning in mid-2012, and to an increased extent in 2013 and this year, the number of infiltrators entering Israel decreased significantly (from 17,298 infiltrators who entered Israel in 2011 to 45 infiltrators in 2013, and from 17 infiltrators who entered Israel from the beginning of 2014 to June of this year). In other words, the large wave of infiltration that was the country's lot until 2012 has largely stopped. At the same time, the rate of those leaving Israel increased significantly (during the first half of 2014, close to 5,000 infiltrators left Israel). Although there is a dispute between the parties as to the reason for the aforementioned change in trend, it cannot be ignored that the number of infiltrators in our borders is slowly decreasing.
However, the State of Israel is still required to deal with tens of thousands of infiltrators in its territory, without any real possibility of removing those who do not wish to leave the country. Arrangements signed with third countries (whose implementation has already begun), through which it is possible to remove infiltrators from the State of Israel toward what have been defined as "safe" exit channels, do not change things significantly. As stated above, these are arrangements whose operation depends on the receipt of His consent of the infiltrator; And the exit of infiltrators in this way is expected to be done on the way Moderate and gradual, both because of the demand of the third countries to refrain from the massive arrival of infiltrators into their territory, and because of the state's desire to ensure that these exit routes are indeed "safe" (as evidenced by the fact that as of March 25, 2014, only 112 infiltrators of Eritrean and Sudanese nationals had left the country in this way). For these reasons, I am of the opinion that even taking into account the fact that there is a relatively new course of action whose full need has not yet been examined, the said arrangements do not offer – at this time – a close and tangible horizon of removal in relation to the majority of the population of infiltrators, in a manner that can affect the constitutional examination.דובר