It is clear that through its decision to leave the asylum seeker in custody, the court refused to recognized his particular situation. Thus, it rejected the possibility that will forever remain open before us: the possibility – which is both an obligation and a right — to discover compassion.

By Asaf Weitzen

Judge Eliyahu Beitan of the Be’er Sheva District Court recently handed down a decision on an appeal filed by Raya Meiler of the Hotline for Migrant Workers, ordering the continued detainment of an Eritrean asylum seeker, despite him being recognized as a victim of severe torture.

Among the explanations given in the decision is a phrase, according to which recognition of a victim of torture on humanitarian grounds, which justifies release from prison, is likely to cause severe consequences. Not in relation to Israeli citizens, rather — and pay attention — regarding asylum seekers themselves: “It appears to me that recognizing [victims of] torture like those described by the appellant as a justifiable circumstance for release from custody, is likely to lead an increase in the phenomenon of torture and to a deterioration, and even to the creation of a phenomenon among infiltrators of self-inflicted harm. And that, in this case, is not desirable.”

Two things can be understood from this self-righteous statement:

Firstly, it appears the court has internalized, to some degree, that Israeli prison is a terrible, hopeless place, to the point that asylum seekers would do everything — including attempts to harm themselves — in order to be freed. Particularly since Israel began imprisoning people under the anti-Infiltrator Law.

Secondly, the attempt at justifying the decision not to release a man as if it is for his own good (and for the good of the group of asylum seekers to which he belongs) testifies to an embarrassing self-righteousness and cowardliness.  The court is able to decide whether to release asylum seekers from custody (the appeal contained a wealth of legal and factual justifications for doing so). Alternatively, it could have clarified that the appeal was rejected due to the interests of the State of Israel, which has decided not to recognize asylum seekers as refugees and not release even a single one. Instead, the court adopted a pathetic and righteous rhetorical gesture. The judge may pat himself on the back and say that his decision not to release a single person aids asylum seekers by preventing a situation in which they are incentivized to harm themselves. He ruled that the man remain in prison, despite not being suspected of crime nor constituting a threat to others. And everything is to his benefit and to prevent harm, torture and suffering from other asylum seekers. It turns out that justice, righteousness and real-life saints can be found in the Israeli courts.

Of course, one can also make use of such logic in other contexts. Perhaps the recognition of the rights of disabled persons creates an incentive for people to become disabled? Or perhaps compensation for victims of sexual offenses leads to an increase in those offenses? Or perhaps such logic simply isn’t used when discussing citizens of Israel.

Hannah Arendt once wrote that:

Compassion, by its very nature cannot be touched off by the sufferings of a whole class or a people, or, least of all, mankind as a whole. It cannot reach out farther than what is suffered by one person and still remain what it is supposed to be, co-suffering. Its strength hinges on the strength of passion itself, which, in contrast to reason, can comprehend only the particular, but has no notion of the general and no capacity for generalizations.

It is clear that through its decision to leave the asylum seeker in custody, and despite the righteous tone, the court refused to recognized his particular situation. Thus, it rejected the possibility that will forever remain open before us: the possibility – which is both an obligation and a right — to discover compassion.

Asaf Weitzen is the Legal Advisor on Asylum Seekers at the Hotline for Migrant Workers.