Israel Should Stop Returning Migrants to Egypt Without Allowing Asylum Claims
September 10, 2009
Egypt has every right to manage its borders, but using routine lethal force against unarmed migrants - and potential asylum seekers - would be a serious violation of the right to life. These individuals appeared to post no threat to the lives of the border guards or anyone else. Attempted border crossings are not a capital offense.
Joe Stork, deputy Middle East director at Human Rights Watch

(New York) - Egyptian authorities should bring an immediate end to the unlawful killings of migrants and asylum seekers near Egypt's Sinai border with Israel, Human Rights Watch said today. According to news reports, Egyptian border guards shot and killed four migrants on September 9, 2009, bringing to at least 12 the number killed since May as they tried to cross into Israel.

General Muhammad Shousha, the governor of North Sinai, was quoted after the recent killings justifying the policy of shooting at the migrants as "necessary." The latest killings come just days before President Hosni Mubarak of Egypt and Prime Minister Benjamin Netanyahu of Israel are scheduled to hold high-level talks in Cairo on September 13.

"Egypt has every right to manage its borders, but using routine lethal force against unarmed migrants - and potential asylum seekers - would be a serious violation of the right to life," said Joe Stork, deputy Middle East director at Human Rights Watch. "These individuals appeared to post no threat to the lives of the border guards or anyone else. Attempted border crossings are not a capital offense."

Human Rights Watch said that Israel's policy of forcibly returning to Egypt some of those who do make it across, without considering any possible asylum claims, also violates international law.

Al Masry Al Youm English Edition, an independent Egyptian daily, on September 9 quoted Shousha as saying: "Of course it's not a mistake that we shoot them - it's necessary to shoot them. To deal with an infiltrator, he has to be fired at. If we say, ‘Stop where are you going?' he's not going to stop so we have to shoot him. The distance to the border is only a few meters so if the infiltrator does not realize that if he goes near the border he will be shot at, the situation will be chaotic."

Human Rights Watch previously documented that, between July 2007 and October 2008, Egyptian border guards killed at least 33 migrants and wounded scores of others at or near the Sinai border with Israel.

Some wounded migrants manage to cross into Israel. Visitors who regularly visit Ketziot prison in Israel, where the migrants are taken, told Human Rights Watch that they typically see five or more migrants who have recently been treated at the Soroka Hospital in Be'er Sheva for gunshot wounds after crossing the border with Egypt. The consistency of injuries, as well as the reported deaths, indicate that Egyptian border guards frequently resort to lethal force in their efforts to prevent people from crossing the border.

Under international law, security officials acting in a law enforcement capacity may use lethal force only as a proportional and necessary response to a threat to life. There is no evidence that the Egyptian border guards used lethal force in order to protect their lives or the lives of anyone else. The UN Basic Principles on the Use of Force and Firearms provide that law enforcement officials "shall, as far as possible, apply non-violent means before resorting to the use of force" and may use force "only if other means remain ineffective." When the use of force is unavoidable, law enforcement officials must "exercise restraint in such use and act in proportion to the seriousness of the offence."

Human Rights Watch recognizes that the security situation in Sinai is complicated and that the government has legitimate security concerns. On August 3, smugglers shot an Egyptian border guard dead in an exchange of fire. However, these security concerns do not justify shooting unarmed migrants and refugees at all points along the 200-kilometer Sinai border.

Human Rights Watch also criticized Israel's policy of forcibly returning to Egypt, in violation of international refugee law, some migrants who do make it across the border and are captured near the border by the Israel Defense Forces (IDF), without granting them an opportunity to present asylum claims.

 An Israeli reserve soldier, testifying before an Israeli court, said that on June 13, his unit apprehended near the border with Egypt a group of 10 migrants and asylum seekers who identified themselves as Eritrean. His deputy commander ordered them to be returned to Egypt "if there is no one from Darfur among them."

"When the people understood we were about to return them to the Egyptian policemen who arrived at the place," the soldier continued, "they started to cry and beg. We did not understand the language they spoke, but it was obvious they were afraid and it was terrible. We ignored their pleas and transferred them to the Egyptian policemen who gathered on the other side of the fence."

Migrants and refugees who are forcibly returned to Egypt face arbitrary arrest and detention, unfair trials before military courts, and forcible deportation without the chance to make asylum claims.

Egyptian authorities are arresting an increasing number of refugees and migrants as they try to cross the border or when they are returned by Israel, and charging them with illegal entry.  Egyptian security officers arrested 85 refugees and migrants between January and May, but the number jumped to 144 in June and 169 in July. The Egyptian authorities hold the refugees and migrants in detention centers in Aswan, New Valley, Red Sea, and North Sinai governorates and deny the United Nations High Commissioner for Refugees (UNHCR) access to them. They are subsequently tried before military courts, which do not meet international fair trial standards.

Under international human rights and refugee law, Israel and Egypt are obliged to assess the protection needs of the migrants and asylum seekers on their territory, including those apprehended by their security forces. Neither country should return anyone to a country where the person would face the risk of torture, persecution or other ill-treatment.

Egypt should also allow UNHCR access to all asylum seekers in custody, including those not yet registered with the agency, who claim a need for international protection. Under the terms of a 1954 memorandum of understanding, Egypt has devolved all responsibility for refugee status determination to the refugee agency. Under these circumstances, Egyptian officials need to ensure that UNHCR has access to all detained migrants to give them the opportunity to present asylum claims. Only after concluding that process could Egypt consider deporting those who fall outside the protection of international refugee and human rights law.

Eritreans, who form a large proportion of African migrants and refugees crossing the Sinai, are at particularly high risk if returned to Eritrea by Israel or Egypt. The UNHCR has recommended that host governments refrain from forcibly returning rejected asylum seekers to Eritrea because it is likely that all returned Eritreans will be subjected to detention and torture. Eritrea routinely imprisons individuals caught trying to flee the country and issues "shoot-to-kill" orders for anyone found crossing the border without permission.