Between Institutional Survival and Human Rights Protection: Adjudicating Landmark Cases of African Undocumented Migrants in Israel in a Comparative and International Context

46 Pages Posted: 8 Mar 2018 Last revised: 23 Mar 2019

See all articles by Rivka Weill

Rivka Weill

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law; University of Chicago Law School; Yale Law School

Tally Kritzman-Amir

Harvard University - Harvard Law School

Date Written: March 7, 2018

Abstract

States compare asylum and immigration policies. The Israeli immigration and asylum regime influenced American law, and was also directly influenced by it. This Article offers the most comprehensive analysis to date of the Israeli case law on the rights of undocumented migrants, at the core of which is a series of cases on immigration detention. Three times within a two year period, the Israeli Supreme Court invalidated immigration detention laws and the legislature complied with increasing frustration. Our argument is that although the Court courageously protected the undocumented migrants’ rights, it also resorted to strategic ambiguity as a means of institutional survival in light of legislative threats to incorporate a general legislative override clause and executive attempts to “pack” the Court with conservative justices. This high stakes dialogue is unprecedented in the Israeli context and uncommon in comparative law. We argue that courts must not only protect the constitutional and international human rights of undocumented migrants, but also bring the political branches to accountability. They should force states to conduct refugee status determinations in a timely manner rather than be satisfied with temporary protection regimes. They should further recognize that rights may accumulate as a result of a prolonged presence of an undocumented migrant in a country. The article discusses the Israeli judicial techniques used to reduce the conflict with the representative branches, including the use of constitutional avoidance and comparative law, and juxtaposes them with the American approach evident in Zadvydas v Davis and Jennings vs. Rodriguez. The harsh implications of a policy that leaves people in an indeterminate state of mere protection from removal are manifest in the Israeli story and should serve as a warning to the US courts as they formulate their reaction to the recent asylum ban.

Keywords: Immigration detention,undocumented migrants, refugee status determination, temporary protection, refugees, asylum seekers, dialogue, legislative override, constitutional avoidance, judicial strategies, comparative constitutional law, Jennings v. Rodriguez, Zadvydas v. Davis, asylum ban

Suggested Citation

Weill, Rivka and Kritzman-Amir, Tally, Between Institutional Survival and Human Rights Protection: Adjudicating Landmark Cases of African Undocumented Migrants in Israel in a Comparative and International Context (March 7, 2018). University of Pennsylvania Journal of International Law, 2019. Available at SSRN: https://ssrn.com/abstract=3135989 or http://dx.doi.org/10.2139/ssrn.3135989

Rivka Weill (Contact Author)

Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law ( email )

P.O. Box 167
Herzliya, 46150
Israel

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Tally Kritzman-Amir

Harvard University - Harvard Law School ( email )

501, Pound,Massachusetts Avenue
Cambridge, MA 02138
United States

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