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IV. Reasons for the Journey

My choice was to stay in Cairo, go through Libya [to Europe] and maybe die at sea, or go to Israel and die by a bullet. I preferred to die by a bullet.

—J.B., a Darfuri man who was arrested by Egyptian border police

Both Egyptian and Israeli officials describe the majority of those crossing the Sinai border as “economic migrants,” a term used by governments to refer to people seeking better opportunities, as opposed to “refugees” fleeing from persecution or danger. Rana’an Dinur, the director-general of the Prime Minister’s Office in Israel, has been tasked with overseeing the government’s policy regarding the new arrivals. He explained in an email to Human Rights Watch,

Not everyone who arrives in Israel through the Egyptian border is a refugee, and certainly not Sudanese. Over the past 18 months, we have been witness to a significant increase in the phenomenon of infiltration to Israel through the Egyptian border, when only a minority of those who cross into Israel are refugees from Sudan. The overwhelming majority are Sudanese, Eritrean[s] and other Africans who have infiltrated in search of employment. There are also quite a few who already received refugee status in other countries, but who heard of the conditions in Israel, and therefore decided to come here.²¹

Israel is the wealthiest country in the region. The UN’s Human Development Index for 2007-08 ranks Israel as the 23rd most developed country in the world; Egypt stands at 112th place. Sudan, Eritrea, and the countries bordering them are still more impoverished.²²

Yet the category of economic migration does not fully explain this new population flow. Human Rights Watch spoke to individuals from various national groups, who described reasons for risking the journey to Israel that cannot be reduced simply to “economic migration.” Many Southern Sudanese and some Darfuris have lived for years in Egypt, and asylum seekers and refugees from these groups told us they had decided to go to Israel because they felt trapped in Egypt, and found it difficult to survive.  Egypt made reservations upon acceding to the Refugee Convention that limit its obligations in various areas including equal access to protection under labor laws, thereby denying the right to work,²³ although under its human rights treaty obligations Egypt is obliged to provide the right to work and an adequate standard of living, as well as to the highest attainable standard of health.²⁴ Migrants and refugees in Egypt also complain of pervasive racism and official violence.

Sudanese Refugees and Asylum Seekers

Human Rights Watch spoke with Southern Sudanese and Darfuris who vividly remembered brutal experiences in Sudan. A 33-year-old man now living in Tel Aviv recalled,

I left El Ginena [West Darfur] in 2003, in April, the last of the month. Because the Janjaweed attacked my village, Arwalla. They raped women, and they killed the eldest and the kids and they threw them in the fire. I saw. I saw my parents, my mother, father, brother, and sister being killed and they burned our houses. And I saw them rape women. This happened to me. I was alone when I left, none of my family made it.²⁵

In the vast majority of cases, Sudanese people interviewed for this report originally fled their homeland for Egypt, where UNHCR recognized them as refugees or registered them as asylum seekers.

Security problems in Egypt

Many Sudanese asylum seekers and refugees told Human Rights Watch that serious and unresolved security issues in Egypt lay behind their decision to go to Israel.

In late September 2005, Sudanese asylum seekers and refugees began a sit-in demonstration in Mustafa Mahmoud Park, outside UNHCR’s Cairo offices, which grew to include roughly 2,000 people and lasted for three months.²⁶  The protestors presented a list of demands to UNHCR—some of which reflected grievances not within UNHCR’s control, including increases in living allowances and in rates of resettlement to third countries. On December 30 at least 27 Sudanese were killed and hundreds more were arrested when Egyptian police violently dispersed the demonstration. At least two of the organizers of the demonstration were still being detained in Qanatir prison outside Cairo in June 2008, two-and-a-half years after the events.²⁷

When Human Rights Watch asked them about life in Egypt, Sudanese asylum seekers and refugees almost uniformly referred to the Egyptian police crackdown at Mustafa Mahmoud. Some cited it as the primary reason they left for Israel.²⁸ Others said they continue to feel its effects: One refugee who played a role in the demonstrations said police detained him for three days in April 2007. “They told me they recognized me from when I spoke to international media during the demonstration,” he said, adding that a state security officer threatened to “cut my tongue” when they learned that he planned to organize a ceremony in December 2007 commemorating those who died in Mustafa Mahmoud Park.²⁹ A Southern Sudanese community leader in Cairo said his community “has orphans from Mustafa Mahmoud and no one can take care of them. Others had their children killed. The Egyptian government needs to ensure accountability for Mustafa Mahmoud, either through jail terms for those responsible or [by] compensating victims and their families.”³⁰

Such an outcome appears unlikely. A flawed and superficial internal police investigation concluded in May 2006 that there had been no wrongdoing on the part of the police.³¹ “My uncle Amoko died there,” a young Southern Sudanese man said. “To read the death certificate is very strange. It said he had lung cancer or heart trouble. But he was healthy before he died.”³² A senior official in Egypt’s Ministry of Foreign Affairs, who spoke on condition of anonymity, seemed to sum up the official attitude when he told Human Rights Watch,

I have copies of police reports of harassment and drunkenness [by the demonstrators]. I don’t recall one bullet being shot, just water cannons. They [police] issued warnings and followed procedures. And they used the cannons for short periods. There were mistakes made, and one life lost is one too many. But I looked at all the coroner’s reports, and all but one death was the result of trampling. I have concerns about one death, but not the rest.³³

A majority of the Sudanese whom Human Rights Watch interviewed, in Egypt and Israel alike, added that a significant factor in their decision to flee to Israel (or their plans to do so) was their belief that UNHCR’s regional office had collaborated with the government in the forced removals from Mustafa Mahmoud Park, and could not be trusted to protect them in future. In an untitled document, dated October 25 2005, UNHCR Cairo sought to debunk this perception:

Rumour: UNHCR has requested the Egyptian authorities to diffuse the demonstration by force. False. From the outset, UNHCR has appealed to the authorities for a peaceful resolution to the situation. The authorities will decide to take the necessary action in accordance with their standard operating procedures for law enforcement and UNHCR will have little power to influence their actions.³⁴

According to an eyewitness cited in an American University in Cairo report on the demonstrations, a UNHCR representative told refugees gathered in the park on December 19, 2005,

You will have casualties, not only in terms of physical suffering but also in terms of the legal implications. And we cannot be held responsible for the casualties or the failure to meet the legal requirements. And the reason I say this is because UNHCR has … done everything that is required of us, but you are not willing to vacate this park.³⁵

UNHCR informed Egypt’s Ministry of Foreign Affairs that it could do no more to resolve the situation in the park in a letter dated December 22, 2005.³⁶   As of October 15, 2008, UNHCR Egypt had not responded to Human Rights Watch requests for further information on the demonstration.³⁷

The number of Sudanese fleeing to Israel increased in the months immediately after the events in Mustafa Mahmoud Park, and continued to grow. In 2005, before the events, 56 Sudanese had entered Israel; 270 more entered in 2006.³⁸

Sudanese refugees and asylum seekers said they also faced more generalized security problems in Egypt. Several Sudanese said that while living in Cairo they had been detained and tortured for their affiliations with Southern Sudanese or Darfuri groups. A leader of a Fur dance troupe in Cairo said Egyptian police arrested him before his troupe was scheduled to perform on July 15, 2007, and detained him for three days without charge. “I [had been living] in Egypt for nearly four years, in Cairo. I collected iron from the garbage and I sold it,” he said, explaining that he sometimes went hungry, but that it was his experience in jail that made him decide to flee for Israel. “Jail was it. They would hit me in the chest and back and beat the soles of my feet with short sticks. It was difficult to leave Egypt—we knew the Egyptians might shoot us, but we decided to leave.”³⁹

A 26-year-old Southern Sudanese man, now living in Tel Aviv, said he was detained and beaten three times between 2004 and 2006 by Cairo police, apparently because of his relationship to the Sudanese People’s Liberation Movement (SPLM) office in Cairo, where he formed an organization of Dinka youth whose relatives had been killed in the Sudanese civil war. Like several other Sudanese asylum seekers Human Rights Watch spoke with, he believes the Sudanese embassy in Egypt played a role in his repeated detentions in Cairo. “One time, the police pulled out my left thumbnail,” he said, “and the last time they beat me really badly. I was bleeding from my tongue, and my lower back and my arm still hurt. There was no help from the UN[HCR]; they told me to tell the police.”⁴⁰

Victimization by police can occur absent any political connotation: In one particularly egregious case recounted to Human Rights Watch by a Cairo lawyer representing the victim, two police officers orally raped a Sudanese woman. Although the Cairo Criminal Court sentenced one of the officers to 25 years in prison, he is still at large, according to the lawyer.⁴¹

Many Sudanese said that attitudes among ordinary Egyptians were racist and frequently spilled over into violence. Egyptian police, they said, were reluctant to protect them. “[People] would hit me, calling me a black, and throw things and dirty water from their balconies,” a young Southern Sudanese man said. “Sometimes they would surround me and threaten me with a knife and steal everything from me. The policemen could see this and they wouldn’t do anything. If I found a policeman [he] would be cursing me. That’s why I left.”⁴²

Many Sudanese asylum seekers told similar stories. Several said that Egyptian police had refused to protect them from violent attacks or to investigate attacks brought to their attention. One said, “I went out of my work one day, and an Egyptian man began insulting me, and he beat me. A policeman was watching. I asked for help, and he asked me what I was doing in Egypt.”⁴³

Lack of durable solutions

UNHCR identifies three “durable solutions” for refugees: voluntary repatriation to their home country, local integration in their host country, and resettlement to a third country.⁴⁴Many Sudanese asylum seekers and refugees told Human Rights Watch they had made or were considering the journey to Israel because none of these options were available to them: they felt trapped in an unlivable situation in Egypt, where they were unable to work; had no avenues to resettlement to a third country; and could not risk returning home.

All of the Sudanese whom Human Rights Watch interviewed in Egypt said that UNHCR Egypt had registered them as asylum seekers and recognized some as refugees. While being registered as asylum seekers generally protected them from deportation, it did not, in their view, allow them to enjoy the rights of a recognized refugee or provide adequate support for their livelihoods. In April 2008 Egyptian authorities deported 49 Southern Sudanese, including recognized refugees and asylum seekers, to Sudan. Some of the men were rounded up by police after Sudanese youth gangs in Cairo damaged cars during a fight; others were deported directly from prison.  They were detained for four months by Government of South Sudan authorities in Juba before being released in July.⁴⁵

Obstacles to local integration

Integration in Egypt is extremely difficult. The right to work, to an education, to medical care, and to public assistance, are aspects of local integration, and these rights must be given substance for integration to be effective.⁴⁶ Although Egyptian authorities no longer stamp “not authorized to work” in passports of Sudanese asylum seekers, as they used to, it is practically impossible for poor non-Egyptians to find work in the formal economy due to quotas and other requirements.⁴⁷ Refugees can join the millions of Egyptians who work in the informal economy. ⁴⁸  However, non-citizens have limited rights of redress if they are harmed or exploited in the workplace.As a refugee aid lawyer remarked,

Egyptians who work informally and don’t get paid can take their claims to one of the Ministry of Labor’s special courts. Under the labor law, if you can prove the work relationship by any means, even two witnesses, you can get help. The refugees can’t go to court to claim their rights if they’re abused. Or they won’t, because they fear what will happen.⁴⁹

Even well-educated refugees and asylum seekers find it difficult to work. An asylum seeker, originally from Darfur, who had run a law office in Khartoum for 10 years, said,

I went to the [Egyptian] lawyers’ syndicate to ask for a work permit, but they said they couldn’t help. I had to work as a security guard for three months. My boss was very kind with me, but suddenly he died. The other Egyptians who worked with us hated me, and they started transferring me around. Now, I am not working.⁵⁰

Refugees and asylum seekers unable to find work in the informal economy face dire conditions. Due to budget limitations, UNHCR-provided living assistance to asylum seekers and refugees in Egypt covers only 20 to 30 percent of basic needs. UNHCR also provides one time emergency grants.⁵¹

The Sudanese refugees and asylum seekers Human Rights Watch interviewed in Egypt and Israel also complained about the difficulty of accessing health care and enrolling their children or themselves in school. UNHCR provides, through its implementing partners Caritas and Catholic Relief Services (CRS), assistance to refugees and asylum seekers in Egypt in need of medical treatment and in order to offset the cost of school tuition, respectively.⁵² Many Sudanese complained that these programs were inadequate for their needs. A Sudanese community leader in Cairo told Human Rights Watch,

We know of 60 kids afflicted by rickets, and they get no treatment. Some of them can’t even stand up to go to the bathroom alone. If you go to the UN[HCR] because you’re sick they say, “Go to the hospital, then come to us with the receipt and we’ll refund part of it.” We can’t afford that. They need to pay it up front.⁵³

UNHCR spokesperson Abeer Etefa noted that over 30,000 refugees and asylum seekers in Egypt received healthcare assistance during 2007, but acknowledged that UNHCR’s funding was inadequate to meet some refugees’ needs.⁵⁴

Radwa Robie, of CRS, noted that her organization’s educational grants, like Caritas’ healthcare grants, are offered as reimbursements rather than as advances; in many cases, she said, qualifying asylum seekers and refugees must choose between paying for school and paying several months’ worth of rent. Those whom UNHCR registers as asylum seekers or recognizes as refugees after the beginning of the school year are forced to wait until the following year to enroll in the grant program. And while the grants pay the tuition of schools run by refugee communities, the Egyptian school system does not recognize these schools’ diplomas.⁵⁵

Resettlement opportunities curtailed

The lack of social and economic integration in Egypt is not new and does not, by itself, account for the recent surge of migration from Egypt to Israel. A factor that has changed is the availability of resettlement to third countries. The number of Sudanese resettled from Egypt with UNHCR’s assistance has declined sharply since 2005. Western “resettlement countries,” which informally notify UNHCR Egypt of their quotas and criteria and make the final decision on whether to accept a refugee for resettlement, have shown decreasing interest in resettling Sudanese refugees from Cairo after the January 2005 signing of the Comprehensive Peace Agreement between the Khartoum government and the Sudanese People’s Liberation Movement/Army. The leading resettlement country, the United States, resettled 2,759 Sudanese from Cairo in 2004, 1,540 in 2005, 1,088 in 2006, and 312 in 2007.⁵⁶

Behind the drop in availability of resettlement is a well-intentioned but flawed change of approach by UNCHR. Normally, when an individual approaches UNHCR, she is first registered as an asylum seeker and later has her asylum claim thoroughly adjudicated. If she is found to have a valid claim she is recognized as a refugee and may then be eligible for resettlement. In June 2004, after the May 26 ceasefire between the government of Sudan and the SPLM/SPLA, UNHCR Egypt ceased conducting refugee status determination for all Sudanese asylum seekers, a decision subsequently renewed every six months.⁵⁷ Whereas recognized refugees received “blue cards,” UNHCR began providing all Sudanese—including Darfuris—with “yellow cards” to designate them as asylum seekers.⁵⁸ By thus granting Sudanese temporary protection, UNHCR sought to give them a modicum of protection against arrest, detention, and deportation. If UNHCR had continued to process their cases, it would probably have found many not to qualify as refugees due to a fundamental change of circumstances in Southern Sudan. It would have closed their cases, and they would be subject to immigration enforcement in Egypt. UNHCR’s policy thus protected persons from Southern Sudan against deportation. However, it does not afford Darfuris the refugee status—and the possibility of being referred for resettlement to a third country—that their cases might merit if UNHCR were to adjudicate their claims.

Today, UNHCR Egypt conducts full refugee status determination only for individuals identified by a “needs-based” assessment that begins during their initial registration According to the UNHCR Egypt spokesperson,

Through registration, we continue to screen people for resettlement according to needs-based criteria. These are female headed households, women at risk, people with life-threatening illnesses not treatable in Egypt, or individualized protection problems in Egypt. So both Darfuris and South Sudanese can get resettled if they’re identified through the registration process. If they’re screened this way they receive individual RSD [Refugee Status Determination] in order to be resettled.⁵⁹

Despite requests for clarification, Human Rights Watch was unable to determine why UNHCR does not “freeze” Southern Sudanese at the asylum seeker level while still granting refugee status to Darfuris.⁶⁰ In practice, only a small number of Darfuris or other Sudanese receive full refugee status after being identified through the needs-based assessment procedure.

Repatriation not an option

UNHCR provides small cash grants to assist in the voluntary repatriation of asylum seekers and refugees in Cairo who originate from Southern Sudan. In 2007 UNHCR assisted in the voluntary repatriation of more than 1,645 Sudanese from Egypt.⁶¹ A UNHCR Egypt official told Human Rights Watch that UNHCR hopes to train voluntary returnees to match job opportunities available in southern Sudan.⁶² But several Sudanese in Cairo, citing relatives living in Southern Sudan, said the situation there remains too volatile and dangerous to risk returning.⁶³Others said they would consider repatriation but that UNHCR’s repatriation assistance grant was inadequate to pay for the journey home, let alone the cost of starting their lives anew.

*          *          *

A southern Sudanese community leader in Cairo summed up the reasons people in his community were leaving for Israel.

We don’t have the right to be in Egypt and work or to live decently, and if we went back [to Southern Sudan] we don’t know what we’d find; everything that we had there was destroyed. The UN says that Southern Sudan is now at peace and they won’t take us [for resettlement]. But there is no infrastructure there, there are still landmines and militias fighting, and rebel movements. There is no way for the government in Southern Sudan to protect anyone who returns. And we can’t go to other Arab countries. This is why people are going to Israel. If America or Canada or Australia were next door we’d go there. But Israel is it.⁶⁴

Horn of Africa Refugees and Asylum seekers

Unlike the Sudanese who undertook the journey to Israel, the majority of Eritreans spent relatively little time in Egypt and do not apply for asylum there.⁶⁵

Eritreans fleeing to Egypt and then to Israel tend to base their subsequent refugee claims on their having evaded the draft for potentially endless and difficult military service, for which the consequence if caught may be mistreatment, torture or execution, or on having experienced persecution as members of an unrecognized religious minority, such as Pentecostals or Seventh Day Adventists.⁶⁶ Eritreans who apply for asylum in Egypt or Israel might also have sur place refugee claims that originate due to the act of leaving their country of origin.⁶⁷ In addition, the Eritrean government regards Eritreans who apply for asylum elsewhere as traitors; they face the risk of detention and torture if returned.⁶⁸

Eritreans in Israel and Egypt told Human Rights Watch that they must cross each border on their journey clandestinely. While in Sudan they faced the risk of deportation back to Eritrea.⁶⁹ One Eritrean detained while attempting to travel through Egypt to Israel told Human Rights Watch,

I left Eritrea because the authorities wanted to imprison me and my husband on account of our faith. My husband was smuggled to Sudan, then I was smuggled afterwards. It cost US$3000. But I had heard that the Sudanese government wanted to detain people like us and send them back to Eritrea. I stayed in Khartoum for less than a month, because of this problem. Then I was smuggled to Egypt, for around $800.⁷⁰

(Egypt’s deportation of Eritreans en masse is described in Chapter VI.)

From Sudan, some Eritrean migrants crossed on foot into Egypt, traveling at night.⁷¹ Once in Egypt, Eritrean migrants generally attempt to travel to Cairo, where the majority may spend a few days or weeks, in many cases without applying for asylum with UNHCR, before paying middlemen and smugglers to take them to the Sinai border.

Ethiopian refugees reported similar circumstances in Egypt to Eritreans, although Human Rights Watch is not aware of recent cases where Egypt forcibly deported Ethiopians to their home country. Ethiopian migrants told Human Rights Watch that they also had to be smuggled through Sudan into Egypt, and had made or were considering the journey to Israel because their community suffers similar problems to those described to us by Sudanese migrants.⁷²

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.⁷³ 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.”⁷⁴ 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.⁷⁵

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.”⁷⁶

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.⁷⁷ 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.⁷⁸ 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.”⁷⁹

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.⁸⁰ 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.”⁸¹

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.⁸²

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.”⁸³

The Israeli government’s overall response to the recent African arrivals has been incoherent.⁸⁴ 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.⁸⁵

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.⁸⁶ 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?⁸⁷

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.⁸⁸

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.⁸⁹Further, 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.⁹⁰ 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).⁹¹

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 2004.⁹² 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.⁹³ 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.⁹⁴

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.⁹⁵Areas 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.”⁹⁶ 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.⁹⁷

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.⁹⁸ 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.⁹⁹ 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.”¹⁰⁰ 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.”¹⁰¹ 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).¹⁰²

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.¹⁰³

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.’”¹⁰⁴ 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).¹⁰⁵In 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.¹⁰⁶

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.¹⁰⁷In another case, Egyptian forces reportedly shot dead an Egyptian Bedouin man as he tried to help African migrants cross the Israeli border.¹⁰⁸

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.”¹⁰⁹

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.¹¹⁰

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.¹¹¹

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.¹¹²

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.¹¹³

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, 2007.¹¹⁴“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.¹¹⁵ During that same time period, IDF border forces reportedly also killed one migrant, in June 2006.¹¹⁶ 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.¹¹⁷

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.¹¹⁸

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.¹¹⁹H.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.¹²⁰

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].”¹²¹ 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.”¹²²

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 2007.¹²³ 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 2008.¹²⁴  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.”¹²⁵

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.”¹²⁶

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.¹²⁷

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.”¹²⁸

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?”¹²⁹

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.’”¹³⁰ 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?’”¹³¹

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.¹³² 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.¹³³

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. ¹³⁴ 

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.¹³⁵

“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.¹³⁶Since 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.¹³⁷ 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.’”¹³⁸Egyptian 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.”¹³⁹

Egyptian authorities rebuffed repeated requests by UNHCR to visit the 48 returnees.¹⁴⁰ Egyptian officials told Human Rights Watch in March 2008 that all 48 people had been released in Egypt.¹⁴¹ According to news reports, however, Egypt deported between five and 20 of the group to Sudan (see below), despite the risk of persecution.¹⁴²Sudanese 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.”¹⁴³ 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.”¹⁴⁴

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.¹⁴⁵ 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.¹⁴⁶ 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.¹⁴⁷  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.¹⁴⁸

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 …”¹⁴⁹ 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.”¹⁵⁰

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.¹⁵¹

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.”¹⁵²

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.”¹⁵³Nothing 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.¹⁵⁴ 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.¹⁵⁵ 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.¹⁵⁶

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).¹⁵⁷

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.”¹⁵⁸According to UNHCR, applicants should be duly informed of and afforded the opportunity to contact a representative of UNHCR.¹⁵⁹ 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.”¹⁶⁰

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.¹⁶¹

According to the UNHCR ExCom, any official conducting an asylum interview is required to act in accordance with the principle of nonrefoulement.¹⁶² 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.¹⁶³

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.¹⁶⁴Judicial 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.¹⁶⁵

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.¹⁶⁶

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.¹⁶⁷

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.¹⁶⁸

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.¹⁶⁹ 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.¹⁷⁰ 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.¹⁷¹

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.”¹⁷² 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.¹⁷³

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.¹⁷⁴ 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.”¹⁷⁵ 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.”¹⁷⁶ Olmert reportedly again requested the defense minister to “stop the infiltrations, even if it called for a ‘moderate use of force.’”¹⁷⁷ 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.”¹⁷⁸

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