V. Egypt's Lethal Border Control Policy in Sinai, and Israeli Pressure for Border Control and Returns
June 2007: Policies Toughen
In late June 2007, Egyptian President Hosni Mubarak and Israeli then-Prime Minister Ehud Olmert, meeting in the Sinai resort of Sharm el-Sheikh, discussed the issue of the increasing numbers of Africans crossing into Israel from Egypt. Olmert stated on July 1 that he had reached an "understanding" with Mubarak on "ways to deal with infiltration into Israel via the Egyptian border." According to Olmert, Egypt agreed "to receive back infiltrators who cross the common border as well as all those who cross it in the future, and will work to prevent future infiltrations from its territory." Israel, he said, would accept "Egyptian assurances regarding their safety." According to Israeli news reports, Egypt agreed to receive hundreds of migrants who had crossed into Israel during the previous six months.
Days earlier, on June 20, a joint session of Israeli parliamentary committees had discussed the increasing numbers of Sudanese, Eritreans, and Ivorians crossing into the country from Egypt. According to the Israeli newspaper Haaretz, a UNHCR representative, Sharon Harel, addressed the session, saying that Israel must not send Sudanese back to Egypt due to the possibility that Egypt would deport them to Sudan, where their lives would be at risk. A member of the Labor party, Avishay Braverman, predicted that Israel would be forced to deport the Sudanese "when the numbers grow," and that Israel, the United States, and Europe should pressure Egypt to absorb Sudanese returnees instead of "spill[ing] their blood" by deporting them."
Blood was spilled, but on Israel's doorstep rather than in Sudan. Within three days of Olmert's post-Sharm el-Sheikh announcement, what appears to have been the new Egyptian policy to "prevent future infiltrations from its territory" claimed its first victim. On July 4, 2007, Egyptian border police shot and critically wounded a Sudanese man trying to cross the border into Israel south of Rafah. Two-and-a-half weeks later, on July 22, Egyptian border police killed Hadja Abbas Haroun, a 28-year-old Darfuri woman, who was seven months pregnant, as she was trying to cross the border near al-Aouja, 62 miles south of Rafah. The Egyptian commander at the Rafah crossing between Egypt and the Gaza Strip, Col. Amr Mamdouh, speaking with a Washington Post reporter about the incident, said that Egyptian border guards shouted "three or four times" at Haroun and her family to stop. "But they refused. So in this case we had to fire shots, warning shots, in the air. In the dark we cannot see the women from the men. And all of them are black."
On the night of August 1, 2007, according to an Israeli news broadcast, Israeli soldiers witnessed Egyptian border police kill four migrants who were attempting to cross the Sinai border into Israel. Israel's Channel 10 Television screened footage from an Israeli Defense Forces (IDF) surveillance video showing the migrants running toward the border. A man the broadcast identified as an Israeli soldier said that he saw Egyptian police "instantly open fire" at the group, apparently killing one man and wounding two others. A fourth reached the border fence, where Israeli soldiers reached out to him but were unable to help him to safety before Egyptian guards got to him and dragged him back. As the Israeli soldiers watched, the Egyptian guards bludgeoned this man and the other wounded migrants to death. "They killed two men with their own hands and sticks and rocks," another Israeli soldier told Channel 10. "We heard them crying and screeching in pain until they died."
On August 3, 63 members of the Knesset, Israel's parliament, signed a petition calling on Olmert's government not to deport "refugees" back to Egypt. The petition, citing "the history of the Jewish people and the values of democracy and humanity," said Israel had a "moral duty" to give "protection and shelter" to refugees.
On August 11, Egypt issued an official statement claiming that "Egypt did not agree to re-admit the persons who previously trespassed to Israel through the Egyptian borders, affirming that Egypt officially conveyed to Israel that it is not obligated to receive any non-Egyptian citizen who has illegally trespassed to Israel."
The Israeli government's overall response to the recent African arrivals has been incoherent. Some officials have argued that most border-crossers should be treated harshly. The newspaper Haaretz reported that at a meeting of officials on February 24, 2008, Prime Minister Olmert requested Israel's defense minister Ehud Barak, "to relax Israel's policy … to make it easier for border troops to open fire on people trying to cross into Israel illegally." Barak rejected Olmert's recommendation.
Egypt's Efforts to Justify Lethal Force at the Border
Between July 2007 and October 2008, Egyptian border forces killed at least 33 migrants at or near the Sinai border with Israel and wounded scores of others. The actual numbers may be higher, since news media may not learn of all the shootings, many of which occurred in remote desert areas in a closed military zone. The Egyptian government has not released official figures on the number of fatalities. In addition, these figures do not account for persons who may have died later from injuries sustained in an encounter on the border. "We are wondering about our people who crossed the border," a Sudanese church leader told Human Rights Watch.
In many cases we don't know if someone was arrested or killed. Sometimes the Egyptians contact us if they identify those dead or in jail; but we don't know if this is the majority. Probably it isn't. We only know about the three bodies we have seen with our own eyes. Wik Malong Agiw, a Dinka from Aweil in the Barakatal region, and a lady from Darfur, and an old man from the Nuba mountains who was killed last week. But so many have gone to the border. Where are the rest?
In an official statement issued on August 11, 2007, Egypt provided a national security rationale for the use of lethal force:
The number of people trespassing to Israel through the Egyptian-Israeli borders has increased exponentially over the last couple of years. Both countries [should prevent] illegal activities such as trespassing across the borders or smuggling … after the outrageous terrorist attacks on Sinai. Egyptian authorities are combating this growing phenomenon since it jeopardizes security and should be firmly dealt with, especially now there are organized networks that facilitate illegal trespassing.
Egyptian foreign ministry officials reiterated these views to Human Rights Watch in March 2008, commenting that security along the Sinai border was internationally sensitive, with Egypt coming under Israeli and US criticism for failing to prevent weapons smuggling into the Gaza Strip.Further, the officials said, the Egypt-Israel peace treaty of 1979 limits the number of forces Egypt may deploy along the border, and many more would be needed if restrictions were imposed upon their ability to use lethal force. These officials told Human Rights Watch that Egypt was allowed to deploy only 750 armed personnel along the border.
However, this figure of 750 refers only to the number of military personnel Egypt is allowed to deploy along the 15-kilometer border with the Gaza Strip, and does not derive from the 1979 peace treaty. There are no international or bilaterally-agreed restrictions on the number of police Egypt can station along the rest of the 266-kilometer border with Israel. Under the 1979 peace treaty, an unspecified number of Egyptian police share control of the Egyptian border zone ("Zone C") of the Sinai peninsula with a Multinational Force and Observers (MFO).
Egyptian officials have claimed that Egyptian border forces are justified in shooting at persons in the border security zone on several terrorism-related grounds. The August 2007 statement refers to the terrorist attacks against tourist and other sites in the Sinai between 2004 and 2006. At one point Egypt linked these terrorist bombings to Palestinian groups based in the Gaza Strip, but persons arrested by Egyptian security forces in connection with those attacks were mainly if not exclusively Egyptians, including three persons sentenced to death by an Egyptian tribunal in connection with the Taba bombings of October 2004. Officials have also referred to the possible route of Gaza-based Palestinians intent on carrying out attacks inside southern Israel, and indeed one and possibly all three suicide bombers who attacked the southern Israeli cities of Eilat and Dimona in 2007 and 2008, respectively, came from the Gaza Strip and crossed into Israel via the Sinai border. Egypt could argue that tight security is needed along the entire border to apprehend such terrorists, but this does not justify a blanket policy of live fire against all persons who attempt to cross the border. Similarly, heightened Egyptian security concerns along the 14-kilometer long Gaza-Egypt border-due to weapons-smuggling tunnels, clashes between Palestinians and Egyptian border security, and Hamas's breach of the border fence at Rafah-do not justify the use of live fire against migrants and refugees at all points along the rest of the Sinai border.
Egyptian authorities also argue that the phenomenon of migrants and refugees leaving Egypt for Israel is a threat to Egypt's national security because of its alleged connection to transnational organized criminal groups that are involved in smuggling women sex workers and drugs into Israel.Areas south of Egypt's tightly-monitored border with the Gaza Strip are, according to Israeli researchers who have examined the trafficking issue, "a zone of transit for drugs and clandestine migrants and a notorious base for networks bringing women … to work as prostitutes in Israel." The authors of the US State Department's 2006 report on human trafficking wrote,
Egypt is a transit country for women trafficked from Eastern Europe … to Israel for the purpose of sexual exploitation. These women generally arrive in Egypt through air and seaports as tourists and are subsequently trafficked through the Sinai Desert by Bedouin tribes. Men and women from sub-Saharan Africa and Asia are similarly believed to be trafficked through the Sinai Desert to Israel and Europe for labor exploitation.
Egyptian police have apprehended illegal migrants of diverse nationalities at the Sinai border-including Turks, Georgians, and Chinese-as well as women who may have been victims of trafficking, including Ukrainians and Russians. Egyptian border police are known to have killed one Turk and wounded two others in an October 2007 incident. But otherwise all of the known shooting victims at the border have been African migrants, an imbalance that appears to undermine Egypt's justification of its policy of lethal force as a response driven by the wider phenomenon of trafficking and smuggling in the Sinai. Even if the people being apprehended were traffickers, that would not in itself justify lethal force.
Egypt in breach of international standards on use of force
According to a Ministry of Foreign Affairs statement of August 11, 2007, Egyptian and international laws grant the authorities the "right" to "use force to stop illegal trespassing across the borders." Egyptian authorities, it said, provide warnings before using force. "However, some trespassers refuse to stop, in which case the authorities have to deal with them to ensure respect for the law."
Egyptian killings of migrants, asylum seekers, and refugees who attempt to enter Israel violate the International Covenant on Civil and Political Rights, which Egypt ratified in 1982 and which provides, "No one shall be arbitrarily deprived of his life" (article 6). This non-derogable obligation applies with regard to anyone on Egypt's territory or under its jurisdiction. According to the Human Rights Committee, a body of experts mandated to monitor state compliance with the ICCPR, states parties should "take measures to prevent arbitrary killing by their own security forces," and should ensure that laws "strictly control and limit the circumstances in which a person may be deprived of his life by such authorities." Egypt is also a state party to the African Charter on Human and Peoples' Rights (ACHPR), which similarly prohibits the arbitrary taking of life (article 4).
The UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials provide guidance in applying these human rights standards to the actions of Egyptian border police. These principles prohibit the intentional lethal use of firearms by law enforcement officials except when "strictly unavoidable in order to protect life" (principle 9). When firearms are used, law enforcement officials must ensure that relatives or close friends of the injured person are notified at the earliest possible moment (principle 5). Governments are obliged to criminally punish the arbitrary or abusive use of force and firearms by law enforcement officials, and are prohibited from invoking "exceptional circumstances," including public emergencies, to justify any departure from the principles (principle 8). The apparent lack of any official investigation into use of lethal force at the border violates Egypt's obligation to provide redress by investigating these deaths and, where appropriate, prosecuting any persons found responsible for unlawful killings.
Lethal force would be justified only in cases where it is necessary and proportionate to threats to the physical security of border guards. Clearly, in some cases smugglers are armed. One Masalit man from Darfur described receiving his final instructions from the smugglers: "The Bedouin blindfolded us and we walked for two hours, until we heard the Egyptian police talking, and their dogs [barking]. Then he told us, 'You have to cross the border, even if they shoot you. If you come back we will also shoot you.'" Human Rights Watch is aware of two reported cases in which Egyptian border police exchanged fire with people-smugglers near the border. On the first occasion, an Egyptian border guard was shot dead when he confronted smugglers leading a large group of migrants approximately 10 kilometers southwest of the Gaza Strip (and a number of kilometers from the border, which lies to the southeast).In another reported exchange of fire, smugglers shot and killed 21-year-old Mohamed Ahmed Hassanein, a conscript in the Egyptian Central Security Forces, about 16 kilometers from Sinai's Mediterranean coast.
Human Rights Watch learned of two other cases where Egyptian police discovered people smugglers near the border. N.A. was traveling with a group of migrants accompanied by three men whom she described as guards and a scout, presumably smugglers, who fled immediately when Egyptian border forces discovered them: "We were waiting for the man who had gone ahead to scout for us, but before he came back the army [sic] saw him. The two men who were guarding us ran away." Egyptian forces then began firing at the group.In another case, Egyptian forces reportedly shot dead an Egyptian Bedouin man as he tried to help African migrants cross the Israeli border.
These cases were, however, exceptions to a larger trend. Egypt's claim that the fight against smuggling networks necessitates border guards' use of lethal force appears questionable in the majority of cases Human Rights Watch investigated, where smugglers were not present when border guards opened fire at migrants. Interviews with refugees, asylum seekers, and migrants show a common pattern whereby smugglers, whom interviewees identified as Bedouins, wait until nightfall, lead the migrants to within walking distance of the border, orient them in its direction, and leave. Human Rights Watch attempted but was unable to interview smugglers. One smuggler told a Reuters reporter that he prudently limited his contact with refugees. Before making the final leg of the journey to the border, he said, "[w]e leave the Sudanese in a Bedouin tent so that if the police arrest them, we're far off."
Human Rights Watch found no evidence to suggest that Egyptian border guards are shooting at migrants because they mistakenly believe them to be dangerous criminals. The migrants and refugees Human Rights Watch interviewed typically attempted to cross the border in large groups of between 10 and 40 or more people, under cover of darkness. Entire families frequently made the crossing. Several refugees and migrants said that border guards were alerted to their presence when young children began to cry. M.M. said he was crossing the border in a group of 37 people when border police heard them.
It was 8 p.m., and there was no moon, it was blackout. But the soldiers could hear us, they were saying "Ay ay ay!" to scare us. They shouted "Hey, samara [black]!" … I heard the bullets going past, they were shooting at us from both sides.
In another case, Egyptian border guards began firing at a group of migrants who became visible as Israeli border guards illuminated them. M.B., a 26-year-old Darfuri man who crossed the border on August 28, 2007, recalled,
The Egyptians didn't see us at first, but then the Israelis shined a light on us from their side, and the Egyptians started shooting at us. There were three fences, and I made it past the first two, but at the third one I was shot. They shot me three times. But the Israelis told the Egyptians to stop shooting, they said it in Arabic. And I was lucky because the Israelis called an ambulance after I fell. I couldn't speak for three days.
Further, there is no evidence, and Egyptian officials have not claimed, that in any of the known cases where Egyptian border guards killed or wounded migrants and refugees, they fired in self-defense. N.A., the Darfuri woman quoted above, recalled that Egyptian border forces fired at the group she was traveling with even though they were seated:
[T]he army started shooting at the group of us sitting on the ground. They were shouting, "Do any of you have a gun?" They were firing for a long time. They encircled us. Then dawn came. They checked and there was one dead and five injured. Then they took us to a military camp-they took all of us, they took our clothes and our documents and our money. They used our clothes to clean up the blood of the wounded people.
In none of the killings has it been shown that the intentional lethal use of force by border police was strictly unavoidable in order to protect life-the only ground permitted for such use in the UN Basic Principles on the Use of Force and Firearms.
Egyptian guards along the Sinai border are apparently under orders to use lethal force against migrants and refugees regardless of whether the latter pose any threat. Egyptian officials have stressed, and some witness accounts confirm, that Egyptian border police follow a common warning procedure before directly targeting people attempting to cross the border. A Southern Sudanese man who crossed the border on February 17, 2008, said,
I could see the police. They shouted, and shot up in the air, then down. I saw someone dead in front of me, his name was Wik. And I saw another person get shot in the legs and in the wrist, when they shot down. Then they brought an ambulance-we saw them loading it up, when we made it across the border. We were watching them put in people-people lying quiet.
Such a warning procedure is irrelevant to the legality of lethal force by police in instances other than self defense. In other cases, including the events witnessed by IDF soldiers on August 1, 2007, border guards reportedly opened fire on fleeing migrants without warning. "They just started shooting at us-we were really surprised," said a southern Sudanese man who crossed into Israel in early August, 2007."I saw one man get shot in his leg. Mohammed. He was from Darfur also. I don't know what happened to him [after that]. You don't know what has happened to your friend." Nine of his group of 38 migrants crossed two fences into Israel, where IDF soldiers picked them up.
The approach taken by the Israeli Defense Forces suggests that refugees, asylum seekers, and migrants crossing the Sinai do not present a serious threat to armed border guards. Since 2005, when Sudanese refugees began arriving in Israel via the Sinai border, IDF forces have, according to news reports, shot and killed several Palestinian and Egyptian "infiltrators" at the border on the grounds that they posed security risks, in one case killing a Bedouin man in unclear circumstances, in another firing in self defense on two men wearing Egyptian army uniforms who attacked an IDF tank crew. During that same time period, IDF border forces reportedly also killed one migrant, in June 2006. However, migrants and currently-serving Israeli Defense Forces (IDF) soldiers interviewed by Human Rights Watch confirmed that Israeli soldiers typically approach the migrants-in at least some cases without raising their weapons-and tell them to put up their hands, search them, ask them where they are from, offer them water and, if necessary, administer first aid before driving them, without handcuffing them, to the nearest IDF base. From there they are taken to one of two larger bases at Har Kholeif or near Ketziot.
An IDF reservist who was stationed at the Nitzana border base in April and May 2007 told Human Rights Watch,
We knew about the refugee phenomenon, the army talked about it, so we never opened fire; as far as I know a bullet was never shot. The way it usually happens is that when night falls they start crossing, and there are military patrols on the main routes and roads and they are found usually sitting and waiting for the patrols. They are checked on the spot, the regular security procedure of asking for their papers, giving them a pat-down, and then they are taken to the base.
Although the IDF has forcibly returned migrants to Egypt in August 2007 and August 2008, migrants interviewed in Israel by Human Rights Watch said that they intended to be intercepted by the IDF near the border because they viewed Israel as a safe destination.
Families terrorized and separated at the border
Many refugees and migrants try to make the trip to Israel with their families, but in the desperate final moments near the border, mothers, fathers and children can become separated.H.B., who had just arrived with his two young boys in Tel Aviv when Human Rights Watch spoke to him, tried to remember the last time he saw his wife, moments before their family came under fire:
I heard the bullets whizzing in my ears and I don't know what happened to the rest [of our group]. I decided to run with my kids for Israel. I don't know whether the rest are alive. Even now I'm not sure what happened to my wife. It was raining. We were running towards the border together. After that I don't know what happened to her.
In Israel, Human Rights Watch met several unaccompanied children whose parents had been arrested at the Sinai border. Two sisters, ages 8 and 7, became separated from their mother, father, and two siblings at the border. Two men who came to know the family during their journey to the border are caring for the sisters. "I dragged the kids across the border," explained G.H., a 25-year-old Eritrean man living in Tel Aviv. "They were only 20 meters away from their mother, but she was caught. Now the kids are staying [with us]." B.D., a Southern Sudanese man who came to Israel with his wife and son in mid-2007, is also caring for two other sisters, ages 12 and 6, whose mother and three siblings were arrested by border guards in February 2008. "We spoke [by phone] to the father in Cairo. We don't know what to do. The little girl cries all night, [she] saw someone who was shot. We need help to find where the mother is."
Little evidence of deterrent effect
Although Egypt's unlawful, lethal policy has presumably deterred some people from attempting to cross into Israel, the number of asylum seekers who have crossed the border continues to increase. In early July 2007, Prime Minister Olmert told the foreign affairs committee of the Knesset that 2,500 people had crossed the border during the first six months of that year-before Olmert reached his "understanding" with President Mubarak, and before the first reports that Egyptian border forces were shooting migrants surfaced in July 2007. A further 2,500 people nevertheless crossed the border by the end of the year, and 6,034 applied for asylum in Israel from January to September 2008. On March 22, 2008, nearly a year after 40 Israeli parliamentarians criticized the "government's failure to resolve the problem of Darfur region refugees," Prime Minister Olmert warned his cabinet that Israel continued to face a "tsunami" of African migrants "that can only get worse. We must do everything we can to stop it."
People continue to attempt the crossing despite knowing the risks involved. A Sudanese man who succeeded in crossing the Sinai border into Israel with his two children in November, 2007, told Human Rights Watch that his wife, terrified by the gunfire, ran back and was captured by Egyptian border guards. "I talked to her for the first time [four months later]. She was in jail [in Egypt] for two months. She had to work in the jail, cleaning it. She's there waiting for me to get a job. With my first paycheck, I will send it to her and she will come across."
Other Abuses during Border Interceptions by Egyptian Forces
Judging from the accounts given to Human Rights Watch, Egyptian border police often beat or kicked migrants and refugees during arrest. Several migrants said they saw police hitting others in the head with gun butts or were hit themselves. G.B., a 25-year-old man who left Eritrea in early February 2008, hid from Egyptian police who shot him and one of three travelling companions. He witnessed this other man being apprehended:
[E]ven though he was already across the wire [that marked the border] they shined a light on him and told him to come back. He did it, he went back. He was afraid they'd shoot him again. I fell under some grass so they did not see me. But he had no grass. Then they beat him. They put him in a car and drove him away.
In some cases the border police beat migrants while interrogating them immediately upon arrest. A young Southern Sudanese man who crossed the border told Human Rights Watch that he heard Egyptian police beating his traveling companion, "[who] was screaming, 'there are two, there are two,' because they were telling him to say who he was with."
A Darfuri woman said police threatened her for the same reason: "Most of our group crossed the border, but me, another woman and man, and our kids were captured. The soldiers were shooting into the ground beside us to frighten us. They were asking us: who brought you, who was with you, who crossed over?"
Some border guards also beat and insulted migrants for their intent to go to Israel.
According to a Sudanese community leader in Cairo who visited detained migrants in Egyptian jails, "At the border, the police say you are a Jew, and they beat you. But they really shout at people from the south [of Sudan, many of whom are Christian]. They tell them, 'You are the enemy of Arabs and Islam.'" N.A., a woman in her twenties, said that after border police captured her, "They took us to a military camp. They kicked and beat us and said, 'Israel is a bad country, and dirty.' They would [slap] the kids in the face and say, 'Why do you want to go to a bad country like that?'"
The Situation for the Wounded Who Reach Israel
People who are seriously wounded by Egyptian border police at the Sinai border but succeed in crossing receive initial medical treatment from the state upon entering Israel, and are eligible for health insurance if they receive work permits and are legally employed, a process that may take months. Until that happens, the wounded once discharged from hospital depend on medical staff to volunteer their help and on a single NGO, Physicians for Human Rights – Israel, which has a clinic in Tel Aviv.
Most new arrivals to Tel Aviv depend on overcrowded, unsanitary, volunteer-run refugee shelters for living quarters and food. G.B., the Eritrean man quoted above, described the experience that had left him badly wounded and unable to move from his bed in the hallway of a refugee shelter in Tel Aviv. After traveling from Eritrea to Khartoum, Aswan, and Cairo,
it took four more days to get to the border with Israel. I crossed at 3 a.m. There were four of us. They shot two of us. They shot me in my knee, and I crawled … The Israelis found me after a day and a night, at 7:30 the [following] morning. They took me to an army camp, and to [Soroka] hospital in Be'er Sheva.
Two weeks later, talking to Human Rights Watch after having been transferred out of the hospital, G.B. worried that he would fall ill in the refugee shelter. 
Israel's "Coordinated Immediate Returns"
Perhaps the most troubling aspect of Israel's reaction to the border-crossing phenomenon has been its episodic involuntary returns of those who cross the Sinai border to Egyptian border police. The underlying policy, although not acted on for extended periods, remains alive in high-level government discussion.
"Hot returns" by Israel
According to Israeli refugee lawyers, Israel first conducted so-called hot returns on the night of April 25, 2007, when IDF soldiers forcibly returned six Eritrean border-crossers to Egypt. The lawyers said they were contacted by IDF reservists who refused to obey orders to push the Eritreans through a hole in the border fence, but had witnessed other soldiers who did so.Since then, Israel has forcibly returned several groups of migrants.
Following the July-August 2007 killings by Egyptian border forces, and Egypt's denial of any agreement to accept migrants returned from Israel, on August 18, 2007, Israeli authorities transferred to the custody of Egyptian border forces a group of 48 migrants-44 of them Sudanese-who had crossed the Sinai border during the preceding 48 hours. Israeli authorities did not allow members of the group to present asylum claims before forcibly returning them to Egypt. Based on a list of names later provided by the Egyptian government, UNHCR determined that 23 members of the group had previously registered as refugees or asylum seekers in Egypt.
According to news reports, on August 19, anonymous Egyptian officials denied that Israel had sought assurances about the refugees: "Israel just said, 'Please take them.'"Egyptian Foreign Minister Ahmed Aboul Gheit said that Egypt would accept the refugees for "very pressing humanitarian reasons" but that this type of return "would not be repeated again."
Egyptian authorities rebuffed repeated requests by UNHCR to visit the 48 returnees. Egyptian officials told Human Rights Watch in March 2008 that all 48 people had been released in Egypt. According to news reports, however, Egypt deported between five and 20 of the group to Sudan (see below), despite the risk of persecution.Sudanese members of the group may also have acquired refugee claims by virtue of having entered Israel, as statements by Sudanese officials suggested that they could face persecution for attempting to enter "an enemy nation." Aliza Olmert, wife of the Israeli prime minister, wrote on July 31, before Israel returned the group to Egypt, that "sending a Sudanese back to Sudan after he has visited Israel, an enemy nation, is tantamount to a death sentence."
One year after the forced returns of the 48 people, on August 27, 2008, IDF spokesmen confirmed that Israel had again returned an unspecified number of African border-crossers to Egypt. One IDF soldier stationed near the Sinai border told Human Rights Watch he had received orders to return all border-crossers to Egypt and was unaware of any order or procedure to allow them to present asylum claims; another IDF soldier said soldiers in her unit detained a group of Eritrean migrants and protested when the driver of a military bus told them he was going to drive the Eritreans back to Egypt, temporarily preventing the bus from leaving. The soldiers who spoke to Human Rights Watch said they had been told by contacts in the IDF that two groups of detained migrants had been returned at the Sagi and Kharif mountain areas of the Sinai border. Israeli refugee rights advocates in September filed a petition for an injunction against future "hot returns"; in its response to the petition, the Ministry of Defense included an affidavit written by Brig.-Gen. Yoel Strick, who is responsible for the IDF in the Sinai border area. According to the Strick affidavit, IDF "commanders in the field" returned a total of 91 people in four episodes from August 23 to 29, but failed to follow "binding commands" regarding proper procedures in conducting the returns. The whereabouts of the 91 returnees are unknown to Human Rights Watch.
"Coordinated immediate returns" policy
Israel's policy of allowing border-crossers to be immediately returned apparently originated in a meeting on March 1, 2006. According to a report of the meeting by refugee lawyers who were present, the state legal advisor stated,
From the legal point of view, there is no impediment to the return to Egypt of a person who infiltrated into Israel, soon after his entry, such return does not require a legal order or any other procedure. Legally, this is prevention of entry, and not deportation from Israel. The one condition to apply to this procedure is proximity in time and in place to the border crossing.
The proximity of detention to the time and place of entry are irrelevant to Israel's obligation to abide by the prohibition on refoulement. In 1977, UNHCR's ExCom, of which Israel is a member, adopted by consensus Conclusion 6, which "[r]eaffirms the fundamental importance of the observance of the principle of nonrefoulement-both at the border and within the territory of a State …" The ExCom reaffirmed this in October 2004 with Conclusion 99, which calls on states to ensure "full respect for the fundamental principle of nonrefoulement, including non-rejection at frontiers without access to fair and effective procedures for determining status and protection needs."
Proposed enabling procedures falling short of international refugee law
In September 2007, Israeli NGOs challenged Israel's forcible return of 48 people to Egypt the previous month. The Israeli High Court of Justice required the state of Israel to present to the court its proposed procedures for "coordinated immediate return" of "infiltrators" crossing into Israel from Egypt.
As presented in December 2007, the proposed procedures, direct that an "infiltrator" be questioned "by the capturing force in the field" within three to six hours of capture, following a standard set of questions. The questioner- "a soldier or a policeman"-needs only to have the "basic ability to communicate with the infiltrator." If questioning in the field is impossible, soldiers take the migrant to an army camp where the same procedures apply.
The questionnaire does not instruct the interviewer to ask directly whether the migrant fears any risk in his or her country of origin or in Egypt. If the questioning raises suspicions of a "security or criminal infiltration," the "infiltrator would be transferred to the relevant … avenues," but the procedures do not specify what happens if the questioning raises concerns about a possible need for protection. Instead, the information derived from the questioning would be transferred to an IDF lieutenant colonel or colonel, who would decide whether the migrant, based on "his personal circumstances, the circumstances of his capture and his status in Egypt," should be returned to Egypt.
If the migrant's file indicated that the migrant had claimed a serious danger to his life if he were returned, the proposed procedures direct the army officer to ask for the advice of "a legal authority from the army legal division" or another authorized government authority. The authority could direct the migrant to be transferred to the civil immigration authorities if he believes that "there is danger to the life or liberty of the infiltrator in Egypt." However, the procedures specify that this authority would not take into account any "risk of prosecution or imprisonment or punishment due to the infiltration or other criminal offenses committed within Egypt." Migrants would be deported to Egypt within 72 hours upon "receiving the necessary approval" in "coordination with the relevant Egyptian authorities." Until then, the IDF would detain the migrant according to temporary or permanent deportation orders.
Almost every aspect of the proposed procedures-which stigmatize potential asylum seekers and other migrants as "infiltrators"-falls short of Israel's commitments under refugee law. The Israeli government's proposed procedures follow neither of the two "necessary" stages of refugee status determination: to "ascertain the relevant facts of the case" and to apply to the facts thus ascertained "the definitions in the 1951 Refugee Convention and the 1967 Protocol."
UNHCR guidelines establish that applications for asylum should "be examined within the framework of a specially established procedure by qualified personnel having the necessary knowledge and experience, and an understanding of the applicant's particular difficulties and needs."Nothing in the proposed procedures suggests that the "questioner" operating as part of the "capturing force in the field" should or would have the knowledge and experience required to conduct a first-instance interview to ascertain these particular protection needs. Instead of making available to the applicant the necessary facilities, including the services of a competent interpreter, for submitting his case, the proposed procedures do not even require that the "soldier or policeman" who conducts the questioning has competency in a language the migrant understands. The procedures are virtually silent as to the treatment of women and children, whereas UNHCR provides specific guidance to refugee status decision-makers on interviewing and assessing the claims of these and other vulnerable groups and individuals.
The proposed procedures do not indicate that the standard for protection is "a well-founded fear of being persecuted," but rather establishes a higher threshold of "a real danger to his life." Instead of aiming to provide interviewers with a thorough knowledge of refugee law, the proposed procedures only "considers the option" of including a "general review" of such topics as the Refugees Convention in a vaguely-described training program for "questioners." Nor do the procedures meet the related requirement in refugee law that military authorities transfer all migrants to civilian authorities competent to make first-instance decisions on asylum claims at the earliest possible time. The procedures merely give the IDF that discretion (but no guidance).
The proposed procedures direct "questioners" not to inform migrants of any right to seek asylum: "The purpose of the questioning is to provide necessary information on the infiltrator and to allow him to provide, on his own initiative, claims regarding danger to his life emanating from return to Egypt or from being a refugee."According to UNHCR, applicants should be duly informed of and afforded the opportunity to contact a representative of UNHCR. Yochi Ganessin, who argued the case before the High Court on behalf of the state, told Human Rights Watch that asking the question directly "is putting words in their mouths, it's telling them to make refugee claims. He should tell his own story."
The procedures, in ordering that potential asylum seekers be deported within 72 hours, violate the right of asylum applicants to remain in Israel pending a final decision on their cases, and thereby breach Israel's non-refoulement obligations and international law provisions related to the right to an effective remedy.
According to the UNHCR ExCom, any official conducting an asylum interview is required to act in accordance with the principle of nonrefoulement. The proposed standard of "real danger to life" risks excluding refugees who face risks short of mortal danger but that may nevertheless meet the "well-founded fears of persecution" standard under the Refugee Convention, or other grounds that would establish a need for protection or a humanitarian basis for non-return.
Before a state proposes to remove a refugee or asylum seeker to a third country it must assess whether that country is indeed safe. UNHCR's Executive Committee has concluded that refugees and asylum seekers who move in an irregular manner from a country where they have already found protection, may be returned to that country only if they are protected there against refoulement.Judicial authorities also hold that the principle of non-refoulement precludes "the indirect removal … to an intermediary country" in circumstances in which there is a danger of subsequent refoulement of the individual to a territory where he or she would be at risk.
The proposed Israeli procedures would stop deportation to Egypt only if "there is a danger to the life or liberty in Egypt if the person is returned." An assessment limited only to the immediate danger a third-country national might face to life or liberty in Egypt is not a sufficient assessment of risk; such an inquiry must include not only the risk of removal by Egypt with insufficient regard for protection needs, but also the risk of harm in the migrant's country of origin.
Moreover, the proposed procedures fail to address the fact that Sudanese nationals may become refugees sur place-they have a well-founded fear of persecution if returned to their home country by virtue of events that occurred after, rather than before they left: that is, by entering Israel, a country that Sudan considers to be an enemy state.
Ganessin, the lawyer at the Ministry of Justice, told Human Rights Watch,
The real point is that Egypt should be considered a safe first country. It should be this under refugee law. It has a UNHCR office. It has also signed the Refugee Convention and the African refugee convention. Many people who made it to Israel got recognized in Egypt-HCR there gave them blue or yellow cards [indicating refugee and asylum seeker status, respectively]. So from an Israeli perspective, Sudanese and Eritreans should be protected in Egypt.
Egypt, in fact, has not protected them. Egypt held in incommunicado detention asylum seekers and refugees sent back by Israel on August 18, 2007. Egyptian authorities may have committed refoulement on October 28, 2007, when they reportedly removed to Sudan at least five of the group, after they were held at an unknown location and without being given the opportunity to make claims for refugee status. An Associated Press article later quoted an anonymous Egyptian Ministry of Foreign Affairs official as saying that 20 of the group had been "asked to leave" Egypt.
The proposed Israeli procedures thus appear to instruct soldiers and policemen charged with questioning "infiltrators" to disregard practices and laws in Egypt, and in third countries, that could bear directly on a migrant's possible refugee claim. It is hard to understand otherwise the proposed procedures' reliance on the concept of "coordinating with Egyptian authorities" to provide for the smooth and safe return to Egypt of migrants attempting to cross into Israel. As noted above, the Egyptian Ministry of Foreign Affairs has stated that no "coordination" agreement exists. Even if Egypt had provided assurances that it would treat returnees humanely, human rights experts and authorities have concluded that "diplomatic assurances" are inadequate safeguards to ensure that deportees to countries known to practice torture will be protected.
According to Ganessin, "[Israel] agrees with the [Refugee] Convention's other prohibited grounds of persecution. But you can't get protection under non-refoulement just for committing a national crime that carries a prison sentence, like desertion from army service in Eritrea or crossing the Egyptian border illegally." This narrow view of Israel's non-refoulement obligations seems incompatible with the concept of sur place refugee claims. It further deems it irrelevant that Eritrean authorities have tortured or executed deserters, and that torture is a well-documented and pervasive practice in detention facilities and at all stages of arrest and detention in Egypt.
Continuing political instance on "coordinated returns"
In February 2008, in rejecting Prime Minister Olmert's recommendation for tougher rules of engagement at the border (see above), Defense Minister Barak argued that the government should re-activate the policy of immediate "coordinated returns" to Egypt.Haaretz quoted then-Foreign Minister Tzipi Livni as saying, at the same meeting, that "a distinction must be made between refugees and job seekers. Against the latter we must employ harsh measures at the border initially, and later at the detention facilities. We mustn't provide solutions for people who come here seeking work."
Also at the February 24 meeting, the prime minister reportedly "directed authorities to expel 4,500 Africans, including people from Ivory Coast, Ghana and Nigeria, by the end of the week." The order was not carried out, and at another meeting on the issue on March 23, "Olmert expressed anger that the IDF was not conducting 'hot returns.'" He and Barak "criticized the Ministry of Foreign Affairs for not holding negotiations with Eritrea regarding the infiltrators, as most are from that country. Olmert instructed the Ministry to find a third country within a week that will be willing to accept the African infiltrators." Olmert reportedly again requested the defense minister to "stop the infiltrations, even if it called for a 'moderate use of force.'" The next day, immigration police conducted sweeps of privately-run refugee shelters in Tel Aviv and arrested approximately 300 people. Many were detained for four days, separated from their families, and in some cases transferred to prisons in other cities before being released (see Chapter VII).
The August 2008 returns of 91 people, described above, went ahead despite court approval of the enabling procedures for the coordinated returns policy still being pending. An IDF spokesmen who confirmed the returns (without specifying the number) to Human Rights Watch said that they "follow[ed] instruction in recent months from the political echelon to do so."
UNHCR's position is that coordinated returns between countries are acceptable in principle if credible safeguards are in place, including guarantees of non-refoulement and humane treatment. Human Rights Watch interview with Steven Wolfson, UNHCR liaison, Tel Aviv, March 4, 2008. On June 20, 2007, Sharon Harel, a UNHCR representative, stated to a Knesset committee that Israel should not deport Sudanese to Egypt due to the absence of such safeguards. However, Israeli authorities later claimed, apparently on the basis of statements by Michael Bavli, the head representative of UNHCR in Israel, that UNHCR approved the returns procedure used to forcibly deport the 48 people. The Israeli Ministry of Foreign Affairs, in a statement on its website titled "MFA Newsletter: Behind the Headlines: Israel and the Darfur refugees" (which was later taken down), claimed that "the 46 [sic] infiltrators returned to Egypt" were returned "in accordance with the Olmert-Mubarak agreement, under the supervision of the UN Refugee Agency, and on condition they would not be returned to Sudan" (screen-shot of Israeli MFA website dated August 23, 2007, on file with Human Rights Watch). In a submission to the Israeli High Court of Justice dated September 9, 2007, lawyers for the State of Israel cited a letter from Bavli, dated July 23, to support their argument that returns to Egypt did not "require any legal order or any procedure, as long as it is coordinated with Egypt, on the basis of the aforementioned understandings, according to which Egypt is obligated to secure the lives and the safety of the infiltrators who would be returned to its territory … We add that this position is the same as UNHCR's position." (Quoted in letter from Anat Ben Dor, Tel Aviv University Refugee Law Clinic, and Yonatan Berman, Hotline for Migrant Workers, to Mr. Radhouane Nouicer, Director of the Middle East and North Africa Bureau, UNHCR Geneva, September 13, 2007, copy on file with Human Rights Watch.) Bavli's letter, as quoted in the State's submission, stated that based on Egypt's agreement not to return refugees to their state of origin, "there is no reason which prohibits Israel from barring entry (even if only as an emergency step in a situation which is getting out of hand)." The letter compared "the agreements that have been reached between the prime minister and the president of Egypt on the issue of the continued passage of asylum seekers" to other formal agreements on cross-border movements of people, like those between the US and Canada. Michael Bavli, UNHCR, letter to Israeli state attorney Yochi Ganessin, Ministry of Justice, July 23, 2007, copy on file with Human Rights Watch. The letter was in line with Bavli's prior statements to policymakers. The Israeli newspaper Haaretz reported that at a meeting chaired by Prime Minister Olmert on July 1, 2007, Bavli "warned that unless the wave of refugees is not stemmed in the south, 'the ability of the UN to deal with the influx of refugees will collapse. It is already terribly behind.'" According to Haaretz, Bavli "made it clear that he is not opposed to the agreement between Olmert and Mubarak for the immediate deportation of the refugees who crossed into Israel from Egypt, as long as Egypt does not then send them back to Sudan." See Reuters and Shahar Ilan, "Egyptian police fire at Sudanese refugees trying to enter Israel," Haaretz, July 4, 2007, http://www.haaretz.com/hasen/spages/878264.html (accessed April 10, 2008). According to an article published by the UN's IRINnews service, Bavli justified the coordinated returns on the basis that "'[y]ou cannot "shop" for asylum' …. 'Asylum is given at the first country the refugee enters. This is not about seeking the most comfortable state.'" See "ISRAEL-SUDAN: Government to turn back refugees at border," IRINnews, July 4, 2007, http://www.irinnews.org/Report.aspx?ReportId=73078 (accessed May 4, 2008). In a second letter, dated September 20, 2007, after Israel forcibly deported 48 people, Bavli reversed this position, writing that no bilateral agreement on returns existed. Michael Bavli, letter to Yochi Ganessin, September 20, 2007, on file with Human Rights Watch.
"PM Olmert holds discussion on infiltrations into Israel via the Egyptian border," Israel Ministry of Foreign Affairs press release, July 1, 2007, http://www.mfa.gov.il/MFA/Government/Communiques/2007/PM+Olmert+holds+discussion+on+infiltrations+into+Israel+via+the+Egyptian+border+1-Jul-2007.htm (accessed June 30, 2008).
Ronny Sofer, "Olmert, Mubarak agree to send infiltrators back to Egypt," YNET, June 28, 2007,
http://www.ynet.co.il/english/articles/0,7340,L-3418476,00.html (accessed April 15, 2008).
 Shahar Ilan and Mijal Grinberg, "Security forces detain 63 African refugees who infiltrated Israel," Haaretz (Tel Aviv), June 20, 2007, http://www.haaretz.com/hasen/spages/873065.html (accessed July 1, 2008).
Reuters and Ilan, "Egyptian police fire at Sudanese refugees trying to enter Israel," Haaretz.
Ellen Knickmeyer, "Flight from Darfur Ends Violently in Egypt," Washington Post, August 19, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/08/18/AR2007081801236_pf.html (accessed April 21, 2008). Human Rights Watch interviewed members of Haroun's family, and Sudanese community leaders in Cairo with personal knowledge of her case, who stated that she was seven months pregnant when she was killed.
Knickmeyer, "Flight from Darfur Ends Violently in Egypt," Washington Post.
"Egypt: Investigate Killing of Sudanese Migrants Attempting to Cross into Israel," Human Rights Watch news release, August 8, 2007, http://hrw.org/english/docs/2007/08/08/egypt16606.htm. The Jerusalem Post and the Associated Press reported that Egyptian border police had killed four migrants. "Egyptians killed 4 Sudanese on border," Jerusalem Post, August 2, 2007, http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1186066367980; "Egyptians kill 4 Sudanese at Israeli Border," Associated Press, August 2, 2007, http://www.ynetnews.com/articles/0,7340,L-3433158,00.html (both accessed October 15, 2008). Haaretz reported that three migrants were killed, two instantly and one by being beaten to death. Mijal Grinberg, "MKs oppose the deportation of Darfur refugees back to Egypt," Haaretz, August 3, 2007, http://www.haaretz.com/hasen/spages/889300.html (accessed October 15, 2008).
"Egyptians killed 4 Sudanese on border," Jerusalem Post; "Egyptians kill 4 Sudanese refugees at Israeli border," Associated Press. According to Israeli refugee lawyers, the television station has refused to release the surveillance video, which reportedly includes footage of the killings. Human Rights Watch interview with Anat Ben Dor, instructor, University of Tel Aviv Refugee Rights Clinic, and Yonatan Berman, attorney, Hotline for Migrant Workers, February 26, 2008.
Grinberg, "MKs oppose deportation of Darfur refugees back to Egypt," Haaretz; "MKs behind Darfur refugees," YNET, August 3, 2007, http://www.ynetnews.com/articles/0,7340,L-3433224,00.html (accessed October 15, 2008).
"Israel: Halt Summary Expulsion of Sudanese Migrants: Unknown Fate Awaits Sudanese Fleeing From Darfur," Human Rights Watch news release, August 24, 2007, http://hrw.org/english/docs/2007/08/22/isrlpa16717.htm; "Egypt warns it won't take back refugees who cross into Israel," Associated Press, August 11, 2007, http://www.haaretz.com/hasen/spages/892139.html (accessed October 14); Sheera Claire Frenkel, "Cairo warns it won't take back refugees who sneak into Israel," Jerusalem Post, August 12, 2007. An English translation of the Ministry of Foreign Affairs statement, "Egyptian efforts to combat trespassing across the international borders with Israel," dated August 11, 2007, is available at http://www.mfa.gov.eg/Missions/canada/OTTAWA/Embassy/en-GB/Press%20and%20Media/Press_Releases/borders (accessed April 15, 2008).
In addition to the measures discussed, the Israeli government is reportedly also considering constructing a wall along the entire Sinai border, at a projected cost exceeding US$1 billion. Gad Lior, "New fence on Israel – Egypt border to cost over $1b," YNET, February 6, 2008 (accessed October 15, 2008).
Barak Ravid and Associated Press, "Barak rejects PM call to ease rules of engagement at border," Haaretz, February 24, 2008, http://www.haaretz.com/hasen/spages/957417.html (accessed October 12, 2008).
 Media reports state that Egyptian police killed 22 migrants in 2008; an additional 10 killings were reported in 2007. See Appendix A of this report for details. On March 16, 2008, the Cairo office of the Sudanese People's Liberation Movement (SPLM) provided Human Rights Watch with a list of four Southern Sudanese and two Darfuris whom the office had verified were killed at the border, but it was not possible for us to determine whether these were additional to cases reported in the media, which often do not name the deceased.
Human Rights Watch interview with M.P., Dinka community leader, Cairo, March 15, 2008.
Ministry of Foreign Affairs, "Egyptian efforts to combat trespassing across the international borders with Israel." See below for a discussion of terrorist bombings in the Sinai and in southern Israel as they relate to border security.
 Human Rights Watch interviews with Tareq Maaty, March 16, and B.N., March 17, 2008.
 On August 28, 2005, Egypt reached an agreement with Israel allowing the deployment of a new military contingent comprising 750 soldiers along the Philadelphi Road bordering the Gaza Strip. International Crisis Group (ICG), "Egypt's Sinai Question," Middle East/North Africa Report N°61, January 30, 2007, http://www.crisisgroup.org/library/documents/middle_east___north_africa/egypt_north_africa/61_egypts_sinai_question.pdf (accessed October 1, 2008), p. 6. The agreement was amended on July 11, 2007-see Multinational Force and Observers (MFO) website, http://www.mfo.org/1/4/28/base.asp (accessed May 12, 2008)
 The MFO currently consists of approximately 3,000 military and civilians and 1,900 observers. The MFO also monitors the deployment of the 750 Egyptian troops along the Gaza–Egypt border. Ibid.
 "Egypt: Terrorism Trial Shows Serious Flaws," Human Rights Watch news release, December 12, 2006, http://hrw.org/english/docs/2006/12/13/egypt14829.htm; "Egypt: Halt Execution of Accused Taba Bombers," Human Rights Watch news release, June 11, 2007, http://www.hrw.org/english/docs/2007/06/11/egypt16131.htm. From October 2004 to April 2006, five terrorist attacks occurred in the Sinai-three against tourist resorts in Taba, Sharm el-Sheikh, and Dahab, and two against the Multinational Force and Observers. Egyptian officials attributed the attacks to a single terrorist organization called Tawhid wa Jihad (Oneness and Struggle) allegedly linked to Palestinian Islamist organizations and comprised of Bedouin and Palestinian-descended Sinai residents. One study warned that this "official version of events" should be "treated with caution." See ICG, "Egypt's Sinai Question," p. 3. Police arrested and detained without charge an estimated 3,000 people in northern Sinai in connection with the bombings in Taba in October 2004; many were tortured. Human Rights Watch, Egypt: Mass Arrests and Torture in Sinai, vol. 17, no. 3(E), February 2005, http://hrw.org/reports/2005/egypt0205/.
In early 2007 a suicide bomber from Gaza crossed into Israel via the Sinai border and killed three civilians in an attack on a bakery in Eilat; the Al-Aksa Martyrs Brigades and Islamic Jihad claimed joint responsibility for the attack and identified the bomber as Muhammad Faisal al-Siksik, age 21, from northern Gaza. Greg Myre, "Suicide Bomb Kills 3 in Bakery in Israel," New York Times, January 29, 2007,
http://www.nytimes.com/2007/01/29/world/middleeast/29cnd-mideast.html?partner=rssnyt&emc=rss&pagewanted=all (accessed October 1, 2008). On February 4, 2008, two suicide bombers attacked Dimona, in the Negev; one blew up his suicide belt, the other died in the attempt. Isabel Kershner, "Suicide Attack in Israel Kills One," New York Times, February 5, 2008, http://www.nytimes.com/2008/02/05/world/worldspecial/05mideast.html?_r=2&ref=middleeast&oref=slogin&oref=slogin (accessed October 1, 2008). Both Hamas's military wing and the Fatah-affiliated Al-Aksa Martyrs Brigades claimed exclusive responsibility. Hamas claimed the men came from Hebron in the West Bank, but the Al-Aksa Martyrs Brigades said they came from Gaza, crossed into the Sinai, and thence into Israel. Amos Harel and Mijal Grinberg, "Hamas claims Dimona attack, says bombers came from Hebron," Haaretz, April 2, 2008, http://www.haaretz.com/hasen/spages/951028.html (accessed October 1, 2008).
For information about the weapons smuggling tunnels, see, for example, Human Rights Watch, Razing Rafah: Mass Home Demolitions in the Gaza Strip, October 2004, http://hrw.org/reports/2004/rafah1004/. Regarding the shootout in which two Egyptian border guards were killed in Rafah, see Conal Urquhart, "Two Egyptian soldiers killed after Palestinians breach border wall with bulldozer," Guardian (London), January 5, 2006, http://www.guardian.co.uk/world/2006/jan/05/israel (accessed July 13, 2008). For a report that 45 Egyptian policemen were injured in clashes with Palestinians after tens of thousands of Gaza residents streamed into Egypt after Hamas blew up the border wall, see Yusri Mohamed, "Egypt rounds up hundreds of Palestinians in Sinai," Reuters, February 5, 2008.
Media reports and interviews with migrants identify smugglers as "Bedouins," although Human Rights Watch cannot confirm the ethnic identity of any smugglers. According to ICG, "four major Bedouin tribes share the border region: the Tarabin, the Tiyaha, the `Azazma and the Ahaywat." ICG, "Egypt's Sinai Question," p. 9.
 Ibid., citing Nomi Levenkron and Yossi Dahan, Hotline for Migrant Workers, Isha L'Isha – Haifa Feminist Center, and Adva Center, "Women as Commodities: Trafficking in Women in Israel 2003," http://www.hotline.org.il/english/pdf/Women_as_Commodities_Trafficking_in_women_in_Israel_2003_Eng.pdf (accessed October 1, 2008).
 US State Department, Office to Monitor and Combat Trafficking in Persons, "Trafficking in Persons Report – 2006: Egypt," June 5, 2006, http://www.state.gov/g/tip/rls/tiprpt/2006/65988.htm (accessed October 1, 2008). The State Department report also asserts that smugglers in the Sinai, "who are very knowledgeable of desert routes and methods of avoiding detection, routinely rape and abuse victims during journeys that can take up to two months to complete." Although none of the migrants who fled or attempted to flee and whom Human Rights Watch spoke with made allegations of sexual or other abuse by smugglers, human rights activists who work with migrants confirmed the State Department's claim. Human Rights Watch interview with Yiftach Milo, Assaf (Israeli NGO), Tel Aviv, February 26, 2008; and Human Rights Watch telephone interview with Elsa Chyrum, Human Rights Concern Eritrea, May 12, 2008.
"Turkish migrant shot by Egypt police dies of wounds," Reuters, October 19, 2007.
While Egypt argues that its fight against smuggling and trafficking necessitates the use of lethal force, it has failed to take other steps to combat trafficking, including criminalizing human trafficking in line with its international commitments. On March 5, 2004, Egypt ratified the United Nations Convention Against Transnational Organized Crime and the supplemental Protocol to Prevent, Suppress and Punish Trafficking in Persons (Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 25, annex II, U.N. GAOR, 55th Sess., Supp. No. 49, at 60, U.N. Doc. A/45/49 (Vol. I) (2001), entered into forceSeptember 9, 2003; the UN Convention itself has not yet entered into force.) On July 11, 2007, the Egyptian Council of Ministers agreed to establish a National Coordinating Committee to Combat and Prevent Trafficking in Persons. However, Egypt has still not enacted domestic legislation to give effect to the protocol. In 2007, "for the third year in a row, [it] failed to take any steps" to do so, and "made no efforts to protect trafficking victims."US State Department, Office to Monitor and Combat Trafficking in Persons, "Trafficking in Persons Report – 2007: Egypt," June 12, 2007, http://www.state.gov/documents/organization/82902.pdf (accessed October 1, 2008).
Egypt Ministry of Foreign Affairs, "Egyptian efforts to combat trespassing across the international borders with Israel," English translation dated August 11, 2007, http://www.mfa.gov.eg/Missions/canada/OTTAWA/Embassy/en-GB/Press%20and%20Media/Press_Releases/borders (accessed April 15, 2008). According to news reports, the statement was originally released on August 10, 2007.
UN Human Rights Committee, General Comment 6, Article 6 (Sixteenth session, 1982), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 6 (1994), para. 3.
African [Banjul] Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force October 21, 1986, ratified by Egypt March 20, 1984.
 See, for example, Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions, E.S.C. res. 1989/65, annex, 1989 U.N. ESCOR Supp. (No. 1) at 52, U.N. Doc. E/1989/89 (1989).
 Human Rights Watch interview with M.A., Tel Aviv, March 2, 2008.
"Five wounded as Egyptian guards fire on African refugees on Israel border," Associated Press, December 22, 2007, http://www.haaretz.com/hasen/spages/937127.html (accessed July 13, 2008).
"Traffickers kill Egyptian policeman on border," Reuters, August 18, 2008. The Central Security Forces (CSF) were "formed in 1977 to obviate the need to call upon the armed forces to deal with domestic disturbances," and augment Egypt's police force. The CSF are "responsible for guarding public buildings, hotels, strategic sites (such as water and power installations), and foreign embassies … [and] helped direct traffic and control crowds." See Helen Chapin Metz, ed., Egypt: A Country Study, Federal Research Division, Library of Congress, 1990, LOC No. DT46 .E32 1991. In addition to these two incidents, some news reports claim smugglers have killed three Egyptian border police, but this appears to be incorrect. On July 7, 2008, news reports first claimed that "masked" smugglers leading migrants into Israel had killed an Egyptian officer. See "Traffickers shoot dead Egypt officer on Israel border," Agence France-Presse, July 7, 2008. However, Israel Army Radio later reported that Israeli soldiers killed the Egyptian officer, Mohamed Farul Ali al-Kersh, when he wandered into Israeli territory and opened fire on the Israeli forces, possibly mistaking them for smugglers. See "Egyptian officer shot dead by Israeli fire," al Bawaba, July 9, 2008, http://albawaba.com/en/news/231398 (accessed August 26, 2008).
 Human Rights Watch interview with N.A., October 6th City, Egypt, March 11, 2008.
 "Egypt kills man at Israel border, 30 migrants held," Reuters, July 12, 2008. Unnamed security sources identified the man as Ahmed Salim Oweid, and said he was shot when he refused police orders to stop. "He was hit twice and died of his wounds," according to the Reuters article, while "a group of African migrants who were with him fled and were being pursued by police."
Yusri Mohamed, "Sudan migrants make dangerous desert run for Israel," Reuters, July 11, 2007. The smuggler reportedly gathered migrants in a tent around 15 kilometers south of the Rafah crossing on the Egyptian-Gaza border, then drove them in a small, unmarked truck along routes without police checkpoints to border areas where there are gaps in Egyptian and Israeli security lines. "But our role is limited," the smuggler said. "We just ease their crossing through the barbed wire and into Israeli territory."
Human Rights Watch interview with M.M., Tel Aviv, February 28, 2008.
Human Rights Watch interview with M.B., Tel Aviv, March 2, 2008.
Human Rights Watch interview with N.A., October 6th City, March 11, 2008.
 Human Rights Watch interview with A.D., Tel Aviv, February 28, 2008.
Human Rights Watch interview with B.M., Tel Aviv, February 29, 2008.
On May 22, 2008, Israeli forces killed Ayesh Suleiman Mussa, a Sinai Bedouin, who had crossed into Israel at an unspecified location; Egyptian officials claimed he was a drug smuggler. See "Body of Egypt Bedouin killed by Israelis returned," Agence France-Presse, May 22, 2008, http://www.haaba.com/news/2008/05/22/7-137075/body-of-egypt-bedouin-killed-by-israelis-returned.htm. See also, for example, Yaakov Katz, "IDF probes 'strange' shoot-out at Sinai border," Jerusalem Post, June 4, 2006 (in self-defense, IDF soldiers killed two men in Egyptian army uniforms who fired on them). Another report is ambiguous as to the identity of a person killed by the IDF along the border in mid-2006, identifying him only as one of "six people carrying bags" who did not stop when requested to do so. See Efrat Weiss, "IDF kills 2 Egyptian officers on border," YNet, June 2, 2006, http://www.ynetnews.com/articles/0,7340,L-3257980,00.html.http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1148482092580 (accessed July 13, 2008). In a third incident, IDF soldiers shot at Egyptian border police who had crossed into Israel while pursuing men they believed to be drug smugglers. Yuval Azoulay, "IDF rebukes Egypt over fatal cross-border manhunt," Haaretz, July 8, 2008, http://www.haaretz.com/hasen/spages/1000144.html.
An Israeli NGO, in a letter to the IDF demanding an inquiry, referred to Hebrew-language media reports that the IDF had killed a Sudanese man on June 30, 2006. See Physicians for Human Rights – Israel, "Demand for Investigation into the Death of Sudanese Asylum Seeker on the Israel-Egypt Border," July 1, 2006.
Human Rights Watch telephone interviews with IDF soldier and IDF official (names withheld) serving on the border in the southern command, March 31 and April 3, 2008.
Human Rights Watch telephone interview with former IDF commander and current reservist (name withheld), March 31, 2008.
 In a highly-publicized case of family separation, Aliza Olmert wrote a letter to her Egyptian counterpart Susan Mubarak, successfully pleading for the reunification (in Israel) of a young girl with her migrant parents, who had left her behind in Egypt as they rushed across the border into Israel. See Kershner, "Israel Returns Illegal African Migrants to Egypt," New York Times.
Human Rights Watch interview with A.A., February 28, 2008.
Human Rights Watch interview with J.I., Tel Aviv, February 28, 2008.
Human Rights Watch interview with A.D., February 28, 2008.
 Reuters and Ilan, "Egyptian police fire at Sudanese refugees trying to enter Israel," Haaretz.
 Barak Ravid, "Gov't: 5000 people have entered Israel illegally from Sinai in 2007," Haaretz, December 30, 2007. Other annual figures provided by UNHCR Israel to Human Rights Watch. The rate of arrivals to Israel dropped in March 2008, but it is difficult to determine whether this is a lasting trend, or to identify its causes.
 Roni Sofer, "Olmert: We must curb infiltrations from Egypt," YNET, March 23, 2008, http://www.ynetnews.com/articles/0,7340,L-3522476,00.html (accessed April 10, 2008).
Human Rights Watch interview with A.J., Eilat, Israel, March 3, 2008.
 Human Rights Watch interview with, G.B., Tel Aviv, March 2, 2008.
Human Rights Watch interview with F. S., Tel Aviv, February 27, 2008.
Human Rights Watch interview with F.A., Cairo, March 15, 2008.
 Human Rights Watch interview with Madhal Aguer Guot Chol, secretary of organization and community, SPLM, Cairo, March 16, 2008.
Human Rights Watch interview with N.A., October 6th City, March 11, 2008.
 Human Rights Watch interviews with Ran Cohen and Noa Kaufman, Physicians for Human Rights – Israel, Tel Aviv, February 27, 2008.
Dr. Kobi Arad, head of the emergency room at a hospital in Eilat, described a network of medical staff throughout Israel who volunteered time and assistance to help wounded migrants and refugees who were not eligible for insurance, or whose injuries and illnesses, including several cases of HIV, the national healthcare system excluded as conditions preexisting the migrants' entry to Israel. Human Rights Watch interview with Dr. Kobi Arad, Eilat, March 3, 2008.
 Human Rights Watch interview with G.B., Tel Aviv, March 2, 2008. At the time, water was overflowing the shelter hallway floor from the nearby toilet.
Human Rights Watch, Letter to the High Court of the State of Israel Re: Proposed Border Asylum Procedure, December 21, 2007.
See Refugees' Rights Forum, Tel Aviv, "Policy Paper: The Principle of Non-Refoulement," July 2008, p. 6 (copy on file with Human Rights Watch).
Isabel Kershner, "Israel Returns Illegal Migrants to Egypt," New York Times, August 20, 2007, http://www.nytimes.com/2007/08/20/world/middleeast/20mideast.html (accessed October 3, 2008).
Ellen Knickmeyer, "Israel to Block New Refugees from Darfur," Washington Post, August 19, 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/08/19/AR2007081900391.html (accessed October 15, 2008).
 Matti Friedman, "Israel to Send Darfur Refugees Back to Egypt," Associated Press, August 19, 2007, http://www.foxnews.com/story/0,2933,293771,00.html (accessed October 20, 2008).
 Ben Lynfield, "UN official: 48 African refugees missing since deported by IDF," Haaretz, October 28, 2007, http://www.haaretz.com/hasen/spages/917776.html (accessed October 1, 2008). The article quotes UNHCR spokesman Peter Kessler as stating, "We've been requesting information [from the government of Egypt] about [the 48 returnees] and their whereabouts since August and we haven't received anything."
Human Rights Watch interviews with Tareq Maaty, March 16; and B.N., March 17, 2008. Human Rights Watch requested further information about the 48 returnees from authorities at the Egyptian Ministry of Interior. To date, there has been no response. Human Rights Watch contacted two persons and attempted to contact two others who might have been members of the group of 48 (one in Israel, two in Egypt, and one in Sudan), but was unable to confirm their stories.
"Israel struggling to deal with influx of African asylum seekers," Associated Press reproduced in the International Herald Tribune, February 26, 2008, http://www.iht.com/articles/ap/2008/02/26/africa/ME-GEN-Israel-Escaping-Africa.php (accessed May 16, 2008): "Last year, Israel sent a group of 48 African refugees, mostly from Darfur, to Egypt after receiving assurances that they would not be harmed. But 20 of them were 'asked to leave' and returned to Sudan, an Egyptian Foreign Ministry official said."
In early July 2007, an Israel Radio report cited the Sudanese minister of interior as threatening to prosecute any Sudanese who had participated in an alleged Israeli plot encouraging their emigration in order to damage the Khartoum government's image. Sheera Claire Frenkel, Ilana Diamond et al., "Sudan: Israel encouraging emigration," Jerusalem Post, July 9, 2007. In July 2007 the Sudanese refugees commissioner, Mohammed Ahmed al-Aghbash, claimed that Sudanese refugees in Israel wanted to "implement Zionism agendas against Sudan," and called on Egyptian authorities to "firmly penalize any Sudanese refugees if they were found trying to infiltrate through Egypt into Israel." "Egypt sends refugees to uncertain fate in Sudan," Agence France-Presse, October 29, 2007, reproduced at http://www.reliefweb.int/rw/rwb.nsf/db900sid/EMAE-78FM49?OpenDocument (accessed July 13, 2008).
Aliza Olmert, "Exodus: Sudan," YNET, July 31, 2007, http://www.ynet.co.il/english/articles/0,7340,L-3431903,00.html (accessed August 25, 2008).
 Human Rights Watch telephone interview with Avital Leibowitz, IDF spokesperson, Tel Aviv, August 27, 2008.
 Human Rights Watch telephone interview with IDF soldiers (names withheld), Southern Command, August 26, 2008.
 Dan Izenberg, "The IDF, breaking its own rules, expels 91 Africans," Jerusalem Post, September 2, 2008, http://www.jpost.com/servlet/Satellite?cid=1220186504138&pagename=JPost%2FJPArticle%2FShowFull (accessed September 12, 2008); see also "Egypt – Israel: Government says it deported African migrants," IRINnews, September 8, 2008, http://www.irinnews.org/report.aspx?ReportId=80213 (accessed September 12, 2008).
 Protocol of the March 1, 2006 meeting, issued on March 16, 2006, quoted in letter from Anat Ben Dor, Tel Aviv University Refugee Law Clinic, and Yonatan Berman, Hotline for Migrant Workers, to Mr. Radhouane Nouicer, Director of the Middle East and North Africa Bureau, UNHCR Geneva, September 13, 2007 (copy on file with Human Rights Watch).
UNHCR ExCom Conclusion 6 (XXVIII) – "Non-Refoulement," October 12, 1977, http://www.unhcr.org/excom/EXCOM/3ae68c43ac.html (accessed December 20, 2007), para. (c).
UNHCR ExComConclusion 99 (LV) – "General Conclusion on International Protection," October 8, 2004, http://www.unhcr.org/excom/EXCOM/41750ef74.html (accessed December 20, 2007), para. (l).
 The High Court of Justice, petition HCJ 7302/07, served on August 28, 2007 by the Hotline for Migrant Workers and the Refugee Rights Clinic at Tel Aviv University on behalf of the Association for Civil Rights in Israel, the Israel Religious Action Center, Physicians for Human Rights – Israel and Assaf. The State of Israel presented to the High Court a "Complementary Announcement on Behalf of the State" (December 3, 2007). The complementary announcement includes, as an annex, the proposed procedures, entitled, "IDF permanent operational order 1/3.000, Procedure for Immediate Coordinated Returns, Infiltrators on the Israeli / Egyptian Border, November 2007, Southern Sector."
UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, p. 29.
 Ibid., p. 190.
 According to the procedures, only if "the capturing force cannot perform the questioning" would the applicant be moved from the "field" to "a division military camp." Complementary Announcement on Behalf of the State (December 3, 2007), para. 5.
 UNHCR Excom Conclusion 8 (XXVIII) – 1977: "Determination of Refugee Status," at (e)(iv) and at para. 7.
 The proposed procedures say only, "The questioning of a minor would be done by the interviewer, as far as possible by questioning the minor or the adult with whom he had infiltrated." Complementary Announcement on Behalf of the State (December 3, 2007), annex 1, art. A.4.C. By contrast, the UNHCR Handbook says that "it will generally be necessary to enroll the services of experts conversant with child mentality" and possibly the appointment of a legal guardian in order to ensure that the best interests of the child are "fully safeguarded." UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. p. 214. See also, inter alia, UNHCR, "Refugee Children: Guidelines on Protection and Care (1994), Guidelines on the Protection of Refugee Women"(1991), "Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum" (1997), and Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, pp. 206-219, which also includes refugee status determinations for mentally disturbed persons.
 UNHCR Conclusion 8 (XXVIII) – 1977: "Determination of Refugee Status," at (e)(iii). The ExCom further states that if the applicant is not recognized, he should be given a reasonable time to appeal for a formal reconsideration of the decision, either to the same or to a different authority, whether administrative or judicial, according to the prevailing system. It is highly unlikely that the ExCom contemplated that the armed forces would be an appropriate administrative or judicial authority for examining refugee claims. Ibid., at (e)(vi).
 Emphasis added. Complementary Announcement on Behalf of the State (December 3, 2007), annex 1, art. 5.A.1.
UNHCR Conclusion 8 (XXVIII) – 1977: "Determination of Refugee Status," at (e)(iv).
 Human Rights Watch interview with Yochi Ganessin, March 6, 2008.
 UNHCR's ExCom has concluded that "the applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority" and "should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending." UNHCR Conclusion 8 (XXVIII) – 1977: "Determination of Refugee Status," at (e)(vii).
ExCom Conclusion No.8 (XXVIII) -- 1977: "Determination of Refugee Status."
If a migrant presents asylum claims during an initial interview, the only reason not to pass the migrant on to civil immigration authorities would be if the migrant's claims were "clearly abusive" or "manifestly unfounded." Even in such cases the applicant should be given "a complete personal interview by a fully qualified official and, whenever possible, by an official of the authority competent to determine refugee status." ExCom Conclusion No.30 (XXXIV) 1983: "The Problem of Manifestly Unfounded or Abusive Applications for Refugee Status or Asylum," at (d), (e), (i).
ExCom Conclusion No. 58 (XL) 1989.
T.I. v. United Kingdom, Application No. 43844/98, Decision as to Admissibility, 7 March 2000,  INLR 211, at 228.
Persons who were not refugees when they left their countries, but who became refugees at a later date are called refugees sur place. A person might become a refugee sur place because of changes that occurred in the country of origin after departure or because of the person's own actions while outside the country. See UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, pp. 94-96.
Human Rights Watch interview with Yochi Ganessin, March 6, 2008.
Aron Heller, "Israel: No Promised Land for Africans," Associated Press.
 The proposed procedures instruct the relevant authority not to take into account any "risk of prosecution or imprisonment or punishment due to the infiltration or other criminal offenses committed within Egypt."
"Israel: Halt Summary Expulsion of Sudanese Migrants; Unknown Fate Awaits Sudanese Fleeing From Darfur," Human Rights Watch news release.
For references to several expert opinions, see Human Rights Watch, "Denmark and diplomatic assurances against grave violations of human rights," letter to Danish Minister of Justice Lene Esperson, June 18, 2008, http://hrw.org/english/docs/2008/06/18/denmar19151.htm#_ftn3, appendix.
 Human Rights Watch interview with Yochi Ganessin, March 6, 2008.
The US Department of State, in its 2007 "Country Reports on Human Rights Practices," summarized abuses in Eritrea as follows: "[T]he government continued to authorize the use of lethal force against anyone resisting or attempting to flee during military searches for deserters and draft evaders, and the practice reportedly resulted in deaths during the year. Several persons detained for evading national service died after harsh treatment by security forces. There were reports that individuals were severely beaten and killed during roundups of young men and women for national service. There were reports of summary executions and of individuals shot on sight near the Ethiopian and Sudanese borders, allegedly for attempting to cross the border illegally." US Department of State, Bureau of Democracy, Human Rights and Labor, "Country Reports on Human Rights Practices – 2007: Eritrea," March 11, 2008, http://www.state.gov/g/drl/rls/hrrpt/2007/100480.htm (accessed August 25, 2008). On torture in Egypt, see Human Rights Watch, Egypt's Torture Epidemic, February 2004, http://hrw.org/english/docs/2004/02/25/egypt7658.htm. Other Human Rights Watch reports on torture in Egypt include In a Time of Torture: The Assault on Justice In Egypt's Crackdown on Homosexual Conduct (New York: Human Rights Watch, 2004), http://hrw.org/reports/2004/egypt0304; Egypt: Mass Arrests and Torture in Sinai, vol. 17, no. 3(E), February 2005,http://hrw.org/reports/2005/egypt0205/; Black Hole: The Fate of Islamists Rendered to Egypt, vol. 17, no. 5(E), May 2005,http://hrw.org/reports/2005/egypt0505/.
Barak Ravid and Associated Press, "Barak rejects PM call to ease rules of engagement at border," Haaretz, February 24, 2008, http://www.haaretz.com/hasen/spages/957417.html (accessed October 12, 2008).
Aron Heller, "Israel: No Promised Land for Africans," Associated Press, February 26, 2008.
Hati Sini and Barak Ravid, "Prime Minister to return infiltrators to Egypt immediately upon their capture" (רה"מהורהלהחזירלמצריםמסתנניםמידעםלכידתם), Haaretz (in Hebrew), March 23, 2008, http://www.haaretz.co.il/hasite/pages/ShArtPE.jhtml?itemNo=967594&contrassID=2&subContrassID=1&sbSubContrassID=0 (accessed October 12, 2008); a less-detailed version of the story is available on Haaretz's English-language website: Barak Ravid and Associated Press, "PM: Israel to send back refugees who infiltrate from Sinai," March 23, 2008, http://www.haaretz.com/hasen/spages/967272.html (accessed October 12, 2008).
Roni Sofer, "Olmert: We must curb infiltrations from Egypt," YNET, March 23, 2008.
 Human Rights Watch telephone interview with Avital Leibowitz, IDF spokesperson, Tel Aviv, August 27, 2008.