Avoid Complicity in Serious Egyptian Violations
December 12, 2009
Egypt is seriously violating migrants' rights and Israel becomes complicit in those abuses when it forces migrants and asylum seekers back into Egyptian custody. The High Court should order the government not to use forcible returns in these circumstances as a migration control measure.

Sarah Leah Whitson, Middle East director at Human Rights Watch

(Jerusalem) - Israel's High Court should order an end to the government's policy of forcibly returning to Egypt migrants who enter Israel at the Sinai border without giving them an opportunity to claim asylum, Human Rights Watch said today. Egypt has forcibly returned hundreds of migrants and asylum seekers to countries where they face torture and ill-treatment.

Israel's policy of summary return makes it complicit with Egypt's serious rights violations, Human Rights Watch said. The Israeli High Court of Justice, which has consistently refused to order a halt to the policy, will hear a petition against the policy on December 13, 2009.

"Egypt is seriously violating migrants' rights and Israel becomes complicit in those abuses when it forces migrants and asylum seekers back into Egyptian custody," said Sarah Leah Whitson, Middle East director at Human Rights Watch. "The High Court should order the government not to use forcible returns in these circumstances as a migration control measure."

Israel forcibly returned 217 migrants to Egypt between January and August under its "hot returns" policy, which authorizes Israeli soldiers stationed along the border with Egypt to return migrants to Egyptian authorities within 24 hours of apprehending them. Egypt typically detains the migrants who are forcibly returned and sentences them in military courts to one-year jail terms, regardless of whether they had already registered as refugees through the UN High Commissioner for Refugees. Egypt also refuses to allow the UN refugee agency access to the refugees and asylum seekers, in violation of international refugee law.

In a letter on November 26, the UN refugee agency informed the Israeli government that "there is a strong likelihood" that Egypt would forcibly return refugees to their home countries upon completion of their jail sentences. Returning refugees to places of possible persecution (refoulement) violates a fundamental prohibition in refugee law and the International Convention Against Torture.

Israeli officials have voiced fears that "millions" of African migrants looking for work will "flood" into Israel, altering the country's demography, unless Israel applies harsh migration-control policies at the border. Approximately 17,500 migrants, the majority of whom are from Eritrea, Ethiopia, and Sudan, have succeeded in entering Israel from Egypt since 2005, according to Israeli refugee rights nongovernmental organizations.

Refugee aid workers say that a large proportion of these Eritrean and Sudanese migrants had registered for asylum with the UN agency, in Sudan and Egypt respectively, before coming to Israel, but that they were willing to risk death on the Egyptian border because of the continuing risk of insecurity there and of being sent back to their home countries, rather than for economic reasons alone.

According to an Israeli government submission to the High Court of Justice, Israel Defense Forces (IDF) near the Egyptian border fire flares when they see migrants trying to cross the border "in order to draw the attention of the Egyptian forces to the site" - despite the fact that Egyptian border police routinely use lethal force against unarmed migrants in these circumstances. As of November, Egyptian border police had shot and killed at least 16 migrants in 2009 as they tried to leave Egypt by crossing the Sinai border into Israel, in addition to at least 33 migrants killed by the Egyptian police in similar circumstances from June 2007 to October 2008. Human Rights Watch has repeatedly condemned these killings.

The Israeli government stated that firing flares also notifies "their Egyptian counterparts" of a forcible return of migrants from Israel, and claimed that "signaling by flares ... ensures the safety of the infiltrators when they are handed over to the Egyptian forces." In its letter to Israeli authorities though, the UN refugee agency expressed concern about the "hot returns" policy, "in the absence of any formal agreement between Egypt and Israel presenting sufficient guarantees for the safety and protection of returned asylum seekers." In 2007, Israel claimed that the prime minister at the time, Ehud Olmert, and President Hosni Mubarak of Egypt had reached an agreement on the issue. Egypt responded that no agreement existed.

While some of the people who cross the border may be economic migrants, many come from Eritrea and the Darfur region of Sudan and may be refugees with reasonable grounds to fear that Egypt would return them to situations of persecution in their home countries. Egypt forcibly repatriated dozens of Sudanese, including refugees and registered asylum seekers, in April 2008. Egypt also repatriated dozens of Eritreans whom Israel had forcibly returned in August 2008, and up to 1,200 Eritreans in June 2008 - despite warnings that Eritrea was likely to torture or maltreat them.

Israel's "hot returns" policy does not allow migrants any meaningful opportunity to present asylum claims. The detained migrants are not permitted to contact the UN refugee agency. Under the policy, commanding officers of Israeli army divisions operating on the Sinai border with Egypt decide whether to authorize a forced return. Commanders are supposed to consider whether there would be a "concrete and imminent danger to the life of the infiltrator in Egypt upon his return to Egypt" - a much higher threshold than the international law standard, which prohibits forcible returns where there is a risk of "persecution"- and to consult with army headquarters legal counsel in such cases.

Migrants who originate from countries - on an unpublished list - "where there exists a possibility of [Egypt] performing a direct deportation of the infiltrator to them" are not to be deported to Egypt, according to the government's court submission. In practice, according to an affidavit from an Israeli soldier who participated in the forcible return of 10 Eritrean migrants on June 13, his deputy commander ordered the soldiers to return the migrants to Egypt "if there is no one from Darfur among them," despite the documented risk of Egypt returning persons to Eritrea. Persons returned to Eritrea are at risk of prolonged incommunicado detention, denial of access to medical care, and torture.

Under the "hot returns" policy, Israeli soldiers are to "interrogate" detained migrants in the field. The soldiers are supposed to be able to communicate with the migrants at a "basic level," according to the policy, but it is unclear how many Eritrean migrants speak English or Arabic -

which Israeli soldiers might speak - or how many Israeli soldiers posted along the Sinai border speak Tigrinya or Tigre, the languages of many Eritreans, the largest group of migrants.

In his affidavit, the Israeli soldier who participated in the forced returns of 10 Eritreans said: "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." The Israeli government maintained, in its court submission, that none of the migrants "claimed the existence of a risk to his life or freedom in Egypt" before being deported.

On the basis of this interview at the border, Israeli soldiers fill out a questionnaire. Using this form, a commanding officer can decide whether to authorize a deportation. The questionnaire does not include any questions or categories related to asylum or fear of persecution, but instead refers to "infiltrators" and includes a place to check the "infiltration background (interrogation results)" as "terror/security," "criminal," "work migrant," or "other."

"International refugee law prohibits indirect refoulement - sending refugees to a third state that will return them to the place where their lives or freedom would be threatened," Whitson said. "Refugees need not show that they would be persecuted in Egypt, but only that they would be at risk of having the Egyptian authorities send them back to be persecuted or tortured in their home countries."

Israel's parliament on December 8 approved a plan to build a fence or barrier along the Sinai border with Egypt. On December 6, a legislative committee rejected a proposed bill that would have incorporated the UN Refugee Convention into Israeli domestic law.