Immigration Article of the Day: Strategic Ambiguity and Its Prices: A Human and Legal Drama — Are These People Refugees or Economic Migrants? by Rivka Weill
Strategic Ambiguity and Its Prices: A Human and Legal Drama — Are These People Refugees or Economic Migrants? by Rivka Weill
Abstract
The world’s treatment of refugees is marked with hypocrisy. Everyone recognizes the need to protect refugees, especially when other countries are expected to shoulder the burden. But when it comes to a State’s own back yard, the dynamics are different. Israel has dealt with the infiltration of 65 thousand illegal entrants into its tiny country by avoiding individual decisions on the status of people, whether they are refugees or economic migrants. Instead, it restrained the liberty of these illegal entrants which led to a three-stage confrontation between the Israeli Supreme Court and the representative bodies over the proper treatment of this unidentified group of people. While the Court has courageously invalidated three times statutes or provisions thereof to protect the constitutional right to liberty of these illegal entrants, this essay argues that the Court failed in its ultimate task. The Court did not bring the representative bodies to accountability regarding the basic question of who those people are. This essay demonstrates how the Court, while invalidating a statute for a third time, strategically avoided tackling the most important issues on its agenda regarding constitutional rights, constitutional dialogue, use of comparative law, and stare decisis. The essay further argues that this strategy backfired and its costs outweighed its benefits.
KJ