November 12, 2008

I. Summary

Since 2006, over 13,000 refugees, asylum seekers, and other migrants have passed through Egypt and crossed the Sinai border into Israel. The majority arrived in Israel since 2007; at times, in early 2008, over 100 people per night reportedly crossed the border.

Both Egypt and Israel have responded to this cross-border flow with policies that violate fundamental rights. These violations, particularly on the Egyptian side, have become more numerous and more acute over the past year. In August 2007, Egyptian border police shot and beat to death four people trying to cross from Egypt into Israel, according to Israeli soldiers who said they witnessed the killings. The Israeli soldiers, who believed the migrants were Sudanese, were close enough to hear the migrants "screeching in pain until they died," one soldier said.  Egyptian border police have killed at least 33 migrants and wounded dozens more attempting to cross into Israel since the first known fatality, a pregnant Darfuri woman, died in June 2007.

Egypt has also returned Eritrean and Sudanese nationals to their home countries, where they could face persecution and a substantial risk of torture, without allowing them to claim asylum or despite their asylum status. Beginning in February 2008, Egypt refused to allow UNHCR access to Eritreans in detention, many of whom military tribunals had sentenced to between one and three years in prison for illegally entering the country from Sudan. Over one week in June Egypt forcibly returned up to 1,200 of these detainees-of a total of approximately 1,400-to Eritrea, and the Eritrean government reportedly detained 740 of the returnees. In mid-April Egypt deported 49 Southern Sudanese men, at least 11 of whom were asylum seekers or refugees, to Juba, Southern Sudan.

 

Despite Israeli officials' awareness of Egypt's violations, Israel has summarily returned to Egyptian custody scores of migrants who illegally crossed the Sinai border. In August 2007, Israeli soldiers forcibly returned a group of 48 detained migrants, 44 of them Sudanese, back across the border without allowing them to claim asylum. Israeli officials said the Egyptian government agreed to the returns and gave assurances that the returnees would not be mistreated, but Egypt had previously, publicly denied any such agreement. The returns also disregarded a petition by Israeli parliamentarians, calling on the government not to carry out announced plans to return to Egypt captured migrants.  Egypt detained and denied all access to the 48 people, 23 of whom were refugees or asylum seekers. According to media accounts, Egypt subsequently deported between at least five and possibly as many as 20 of the group to Sudan, whence many had originally fled seeking refuge.

Between August 23 and 29, 2008, Israeli soldiers forcibly returned another 91 migrants to Egypt, including Eritreans, Sudanese, and Somalis, without allowing them to present asylum claims. An Israel Defense Forces (IDF) brigadier general stated in an affidavit that "officers in the field" had failed to follow procedures in carrying out the returns, but an IDF spokesman said the returns were ordered by the "political echelon." The whereabouts of the 91 returnees, like the fates of the 48 returnees from August 2007, are unknown.

Both countries have detained migrants for long periods without allowing them to make asylum claims. Both countries are states parties to the 1951 Refugee Convention and its 1967 Protocol, and as such should not punish refugees fleeing from persecution. Guidelines by the United Nations High Commissioner for Refugees (UNHCR) state that detention of asylum seekers should be used only as a last resort.

The majority of those who cross the Sinai to enter Israel are Eritreans and Sudanese. Many of the approximately 4,300 Eritreans who have sought asylum in Israel since 2006, fleeing forcible military conscription or religious persecution, traveled illegally through Sudan and Egypt. Many of the 3,700 Sudanese who sought asylum in Israel, including Southern Sudanese and Darfuris, lived in Egypt as refugees or asylum seekers for years before security problems and harsh living conditions there led them to risk the illegal Sinai border crossing. These conditions are unbearable, many Sudanese say, because they are inescapable due to the increasing difficulty of being resettled from Egypt to a third country.  The difficulty is largely due to decreasing interest from resettlement countries like the United States, but also to UNHCR's policy to allow only some categories of Sudanese asylum seekers with special protection needs to be eligible for refugee status determination. UNHCR classifies all Sudanese as asylum seekers without proceeding to a determination of refugee status except in these special cases. That procedure is meant to protect Southern Sudanese who might not qualify for refugee status from being returned to Sudan, but it makes it difficult for Darfurians who are likely to be found refugees to be resettled abroad.

Many of those who crossed the Sinai border say they fled to Israel out of desperation, unable to earn enough to meet their basic survival needs in Egypt. Others say that in Egypt pervasive, sometimes violent racism threatened their personal security, and that police officials failed to protect them or were themselves the agents of violence. Almost all migrants Human Rights Watch spoke with knew that crossing the border meant risking death or imprisonment for themselves and their families. Their willingness to take such risk underscores their claims that they were unable to find effective protection in Egypt.

Egypt has sought to justify its shoot-to-stop policy against refugees and asylum seekers seeking to cross the Sinai border into Israel on the grounds that organized Sinai-based criminal smuggling networks present a threat to national security. Egyptian officials assert the need to control the country's borders in light of terrorist attacks against tourist and government targets in the Sinai since 2004, as well as arms smuggling into the Gaza Strip and the passage of Palestinian fighters into and out of Gaza. In two known cases smugglers have shot and killed Egyptian border policemen. Yet of the known cases where Egyptian security forces have killed or wounded persons near the border, almost all have involved African migrants and refugees, and none involved border forces' shooting in self defense.

Egyptian security forces along the Sinai border as well as along the country's southern border with Sudan have arrested thousands of migrants attempting to make the journey to Israel. Egyptian detention policies separate migrant families: husbands from wives, boys from their mothers and other female relatives, and girls from their male relatives. Boys and girls who are arrested without relatives of the same gender are detained with unrelated adults. Children are subjected to the same poor conditions of detention as adults, and while children are apparently not tried and sentenced, they may be detained for months. At trial, mothers detained with their children are usually released without being sentenced, but fathers detained with their children must serve prison sentences.

Egypt tries all illegal migrants apprehended in border security zones before military tribunals rather than civilian courts, although human rights law generally restricts the jurisdiction of military tribunals to cases involving military personnel and breaches of military law. Egypt has no formal system guaranteeing detained migrants' access to asylum procedures. While some detained migrants, by bribing jail guards or secretly using other prisoners' mobile phones, manage to make their cases known to UNHCR, many do not.

International human rights law prohibits states from arbitrarily depriving anyone under their jurisdiction of the right to life. In the Sinai border zone, Egyptian border police have used lethal force in what appears to be an arbitrary manner, in violation of Article 6 of the International Covenant on Civil and Political Rights (ICCPR). Police should resort to using lethal force only where strictly unavoidable in order to protect life.

The ICCPR also obliges Egypt to afford due process and fair trials to migrants detained for violating national laws. While Egypt may penalize unauthorized entry into a restricted military zone such as the Sinai, it must afford a fair trial to persons detained and charged with doing so.

Those migrants who successfully cross into Israel are, in the absence of asylum laws or adequate procedures, often subject to ad hoc and arbitrary treatment. From 2005 to 2007, Israeli authorities jailed Sudanese migrants, including children, for periods of more than a year without judicial review. Due to a successful court challenge by Israeli NGOs, Israel no longer indefinitely detains irregular arrivals from Egypt. However, proposed Israeli legislation would impose minimum jail terms of five to seven years on all "infiltrators" captured more than 72 hours after their illegal entry; those captured within 72 hours would be forcibly returned to Egypt. Israel continues to detain some, including children and unaccompanied minors, for months in poor conditions. Israeli detention practices also separate husbands and wives from one another and fathers from their children.

In January 2008 Israel granted temporary residence visas to 600 Darfuris and work permits to 2,000 Eritreans. Nonetheless, Israeli officials have argued the need for "harsh" policies towards illegal border-crossers, and have voiced fears that a "tsunami" of hundreds of thousands of African economic migrants could otherwise be attracted to Israel. Israeli officials have repeatedly threatened to deport the majority of the arrivals-a threat that caused panic in migrant communities in Tel Aviv when immigration police rounded up hundreds of recognized asylum seekers and others in February 2008. Beginning that month, Israel prohibited new arrivals and migrants whose original residency documents had expired from living or working in the greater Tel Aviv area, where the majority had settled in part because of the possibility of finding jobs and the presence, unique in Israel, of NGOs providing services to the asylum seeker community. Police again arrested hundreds of migrants in Tel Aviv in July.

Israel, as a state party to the Refugee Convention and Protocol, should detain refugees and asylum seekers only as necessary to ascertain their identity and the basis of their asylum claims, and should not penalize asylum seekers for irregular entry. Egypt, also a state party (as well as to the African Refugee Convention), should afford detained migrants the opportunity to present asylum claims and have those claims adjudicated, prior to any decision to deport. Israel should desist from advancing draft legislation that would allow deportation of border-crossers within 72 hours and absent a guarantee that blanket security determinations cannot override the possibility to make an asylum claim.

Refugee law, as well as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the ICCPR, prohibit both countries from carrying out forced return (refoulement) of refugees to countries where they have a well-founded fear of persecution or torture, or to third countries that might not respect that prohibition. Both Israel and Egypt are obliged by refugee law, the ICCPR, and the Convention on the Rights of the Child to ensure that children are only separated from their parents where this is in the best interests of the child, and to ensure that where children are detained at all this is in conditions suitable to their special circumstances. These conventions also require these countries to protect migrants' right to family unity by not separating families unnecessarily, and to take steps to facilitate family reunification even if the state itself was not directly responsible for their separation.

Israeli NGOs, student groups, volunteers, and other private citizens have challenged the government's treatment of new African arrivals, and have tried to fill the void left by the government's failure to provide support services to them. In Egypt, where 40 percent of the population lives below or near the poverty line, the plight of foreign migrants and refugees has not gained significant public sympathy. Egyptian NGOs that service refugees and asylum seekers suffer from severe resource shortages, as well as from a generally repressive environment of governmental surveillance of civil society.

Methodology

This report is based on interviews Human Rights Watch conducted with 69 refugees, asylum seekers, and other migrants in Israel and Egypt; members of NGOs and civil society groups in Israel and Egypt; Israeli and Egyptian government officials; officials from UNHCR Israel and UNHCR Egypt; and teachers of refugee or migrant children in Israel. Human Rights Watch also conducted phone interviews with current and former IDF soldiers, one of them high-ranking, and an Israeli government spokesman. We received written responses to questions from Israeli and Egyptian officials that are reflected in this report.

The Egyptian government did not respond to, and the Israeli government denied, Human Rights Watch's requests for permission to visit detention facilities where refugees, asylum seekers, and migrants are held. This report's descriptions of detention facilities draw on interviews with refugees, asylum seekers, and migrants who were detained, as well as with lawyers, representatives of community based organizations, and family members who visited detention facilities.

All the migrants, asylum seekers and refugees interviewed for this report have been disguised with initials (which do not reflect real names) in the interest of the securityof the individuals concerned.