50,000 African Migrants, and the Israeli Detention Law Its Own Supreme Court Struck Down

Starting in 2006, more than 50,000 African migrants, the large majority fleeing Eritrea’s indefinite military conscription system or Sudan’s Darfur conflict and related unrest, crossed into Israel, mostly on foot across the Sinai Peninsula from Egypt. Israel does not consider most of them refugees in a formal legal sense, but it has also mostly not deported them, largely because both Eritrea and Sudan present serious documented dangers for people returned there, leaving tens of thousands in a prolonged legal limbo, neither granted asylum nor removed.

Israeli policy toward that population hardened considerably starting in 2012, when the Knesset amended the country’s Anti-Infiltration Law to allow detention of people who entered the country without authorization for up to three years without criminal charge, and built the Holot detention facility in the Negev desert specifically to hold them, a facility that at points held as many as 3,360 people. The law’s supporters framed it as a deterrent against continued informal border crossing; critics, including Israeli and international human rights organizations, argued indefinite detention without trial for people whose only violation was unauthorized entry raised serious due-process problems under Israeli and international law.

Israel’s own Supreme Court agreed, repeatedly. In a September 2013 ruling known as Adam v. Knesset, the court struck down the three-year detention provision itself as unconstitutional under Israel’s Basic Law on human dignity and liberty, finding indefinite detention without trial disproportionate. The Knesset responded with a revised framework centered on the Holot facility, requiring migrants to report there rather than face open-ended detention; in a 2014 ruling known as the Eitan case, the court struck down that revised measure’s 20-month mandatory residency requirement as excessive. A third ruling, in August 2015, capped mandatory Holot residency at 12 months, a rare instance of a court rebuffing the same underlying policy across three successive legislative attempts to preserve it. A separate 2017 ruling from the same court permitted a different, contested government policy: offering detained migrants release from Holot in exchange for agreeing to third-country resettlement in Rwanda or Uganda, arrangements Amnesty International and other rights groups have since documented as frequently involving people being left without legal status, protection, or, in some documented cases, safety, once they arrived.

The legal back-and-forth over more than a decade, a Knesset detention law, three successive Supreme Court reversals, and a still-contested deportation alternative, illustrates a policy area where Israel’s judiciary and legislature have repeatedly clashed over how the country treats people who arrived without authorization but whom it has, in practice, been unable or unwilling to actually deport to the countries they fled.