Israel, Eygpt and ‘hot returns’

In August 2007 Israel deported 48 people to Egypt, including women and children, shortly after their arrival to Israel. No procedure preceded the deportation and the deportees were not allowed access to Israel's asylum system. The state argued that it could legally expel any person within 24 hours of their arrival in Israel, without initiating any legal procedure; this ‘procedure’ was entitled by the state’s ‘Hot Return.’

A petition was produced by the Hotline for Migrant Workers and the Refugee Rights Clinic at Tel Aviv University (TAU) to stop those hot returns and to declare them illegal. Basically we demanded that every person who arrives in Israel be given access to an adequate asylum procedure, to the Office of the United Nations High Commissioner for Refugees (UNHCR), to legal representation etc.

In September 2007 the high court ordered the state to devise a procedure for adequate differentiation between asylum seekers who need protection and others. In December 2007 the state presented its new ‘Immediate Coordinated Return Procedure.’ This is a highly inadequate procedure which calls for the questioning of asylum seekers by Israel Defense Forces (IDF) soldiers or border policemen in the field, within 3 hours of an asylum seeker’s capture by the army. I am attaching a translation and summary of the state's announcement to the court introducing this new procedure. We continue to contest the legality of this procedure in court.

Since August 2007 (and until recently) the state avoided performing additional hot returns. In a hearing held at the high court in February 2008, state attorneys acknowledged that the oral ‘diplomatic understandings’ between Egyptian President Muhammad Hosni Mubarak and Israeli Prime Minister Ehud Olmert, which were the basis of the August 2007 return, had failed. The returnees were incarcerated incommunicado in Egypt, were not given access to UNHCR with some according to various reports, later deported to Sudan. The state declared it would not perform any ‘coordinated returns’ without receiving prior sufficient assurances regarding the safety of the returnees from Egypt. We should add that in May 2008 the state reported to the high court that it had summarily returned Egyptian nationals who crossed the border, since according to the state's understanding, the petition does not deal with such returns.

CURRENT HOT RETURNS

At the end of August 2008 Israel again initiated the hot returns of people who arrive via the Egyptian-Israeli border. We have asked the court for an immediate injunction. I attach [See below: Pambazuka News Editor] a translation of an affidavit provided to the high court by a high-ranking IDF officer. I think this is an amazing document since he is openly admits that the IDF potentially refouled 91 people. The state attorneys defined the four incidents in which the 91 people were returned as a ‘local dysfunction.’ The state declared that it would strictly follow the ‘immediate coordinated return procedure.’ The former declarations regarding the need for adequate assurances from Egypt prior to any return were completely ignored.

Sadly, the high court denied our request for an injunction. A hearing is scheduled for 7 October. Meanwhile, according to our sources, the returns continue. On 9 September the IDF spokesperson affirmed that since 7 September the IDF has returned to Egypt 11 Eritreans, four Sudanese and one Nigerian. According to our sources another return was completed yesterday comprising 14 returnees including eight women and one baby. While the reports we receive from the field are vague, our impression however is that the new procedure is not fully operational and that asylum seekers are not even told that they are being returned. They are handcuffed, blindfolded and are handed over to the Egyptian forces in various places along the border.

According to various reports, these people might face refoulement back to their countries where they may be exposed to torture, indefinite arbitrary detention or even worse.

At the hearing scheduled for the beginning of October we are planning to reiterate all our arguments, specifically that:

1) Egypt can't be considered ‘safe’ based on the experience of the 2007 return and the current reports regarding deportation of asylum seekers from Sudan and Eritrea back to their countries.

2) Under current circumstances, Egyptian ‘assurances’ regarding the safety of the returnees may not be trusted (we contested the reliance on assurances in general).

3) The new ‘immediate coordinated return procedure’ is incapable of identifying genuine asylum seekers and should be disbanded.

Since the Israeli high court has no experience or substantial Israeli precedents to guide it, we are worried that it may be hesitant to intervene, particularly since the state argues that the ‘infiltration’ via Egypt endangers Israel and that there is no other way to stop it. Information on the way asylum seekers are currently treated in Egypt and leading court decisions declaring countries to be unsafe could greatly help this case. Decisions disqualifying border procedures would also be helpful.

* Anat Ben-Dor is a clinical instructor of the Refugee Rights Program.
* Please send comments to [email protected] or comment online at http://www.pambazuka.org/

Summary of the state's response to the petitioners’ request for an injunction against ‘hot returns’ of potential asylum seekers soon after they are captured on the border.

HCT 7302/07 The Hotline for Migrant Workers and Others vs. The Minister of Defense and others

The response is made following an order by the Court:

1. The request for an injunction is based on several immediate coordinated returns which were preformed during the last week, not according to the obligatory army order, which the state presented to the High Court.

2. Soon after the petitioners called the state Attorneys, the state Attorneys called the Chief Legal Advisor for the Army to examine the details raised by the petitioners and to ensure that the highest ranks in the IDF and the forces in the field would act only according to the army orders.

4. The attached affidavit made by Brigadier General Yoel Strick, the commander of the ‘Red Division’, which is responsible inter-alia, for securing most of the border area between Israel and Egypt, details that there have been four coordinated immediate returns last week, which were all fully coordinated with the Egyptian side.

5. As the affidavit demonstrates although the 4 returns were fully coordinated with the Egyptian side and after no claim of need for refugee protection was raised, it was clarified that the forces operating in the field did not fully act according to the orders of the army orders. Therefore the importance of fulfilling the orders was clarified to the forces who act in the field.

It was also explained to the forces that if there are any doubts regarding the return of an infiltrator, he should not be returned without a prior consultation with the Legal Advisor to the Southern Command.

6. The petitioners argued that Egypt recently deported hundreds of asylum Eritrean asylum seekers and dozens of Sudanese refugees and asylum seekers back to their countries. These arguments are an attempt to mislead the Court as if Israel is responsible for what the Egyptian authorities are doing, even if those are people who never entered Israeli territory. This information is irrelevant.

7. The petitioners requests for an injunction were denied by the Court in the past. In Sept 23, 2007 the respondents submitted to the Court that:

'The respondents believe there is no obstacle in returning to Egypt an infiltrator who was captured soon after the infiltration, this does not require any legal orders, as long as this is done in coordination with Egypt and based on the understanding with Egypt that Egypt is committed to ensure the life and safety of the infiltrators who are returned to its territory. This position is in accordance with a letter written by Miki Bavly, head of the United Nations High Commissioner's office in Israel dated 23/7/07’

8. The same reasons which led the Court to refuse to grant a sweeping injunction still exist. For this reason the petition for an injunction should be denied, since the coordinated returns which served as a basis to the request were only a ‘local dysfunction’, which was dealt with by the highest ranks in the IDF, with the personal involvement of the Commander of the Southern Command and the Chief Legal Advisor to the army.

AFFIDAVIT (TRANSLATION)

I, the undersigned, Brigadier General Yoel Strick, after I have been warned that I should state the truth and that if I will not do so, I will be subject to the sanctions prescribed under the law, hereby declare:

1. I am the commander of the ‘Red Division’, which is responsible inter alia, for securing most of the border area between Israel and Egypt. Hundreds and thousands of infiltrators from various countries who attempt to enter Israel illegally, move in the area guarded by the division.

2. This affidavit is made in support to a response by the respondents in the High Court petition 7302/07 and as an answer to the petitioner's request to issue an injunction against the performance of ‘coordinated returns.’

3. On 23.08.08, 26.08.08, 27.08.08, 29.08.08 ‘coordinated returns’ of 91 infiltrators of African origin were preformed. Most of them were captured without documentation. This was fully coordinated with the liaison officers in Egypt during and in proximity to the place and time of the infiltration. I wish to add that in my conversation with my counterparts on the Egyptian side, it was clarified to me that as a rule after the capture of the infiltrator at the border, the Egyptians transfer the infiltrators to the handling of the local justice system.

4. As has been conveyed to me by my subordinates, not even one of the infiltrators who were returned raised a claim of being a refugee. However, the fact that the commanders of the forces in the field did not act according to the army orders which governs the performance of ‘coordinated returns’ (hereinafter: the command) was clarified to them. While doing so, it was clarified that there is importance in carrying out the order, with an emphasis on performing the questioning and recording it, according to the personal questioner form.

5. In this, it was clarified to the forces under my command (hereinafter: the forces) that a personal questioning of an infiltrator should be preformed, as much as possible, with the capture of the infiltrator by the capturing force in the field, as much as possible no later then within 3 hours from the time the person was captured (or 6 hours, if it was a group of infiltrators). If the capturing force does not have the capacity to perform the questioning, the infiltrator would be transferred to a camp which receives the infiltrators for questioning.

6. It has also been clarified to the forces that the purpose of the questioning is to provide vital information on the infiltrator and to enable him to raise claims as he thinks fit. The questioning would be preformed according to the instructions in the 'capturing of an infiltrator' report and the personal questioning form. In this framework, the infiltrator would be asked, inter alia, if he has anything to add before the option of returning him to Egypt is considered.

7. In addition it was conveyed to the forces that the decision if to perform a ‘coordinated return’ is handed to the empowered authority under the command, which is an Operations Section Officer (an officer with the rank of Lieutenant Colonel). In this framework, if and as questions or doubts are raised regarding the possibility of the return of an infiltrator who had raised concrete claims of danger to his life if he is returned to Egypt or to his country of origin, a consultation with the Legal Advisor to the Southern Command will be carried out examine the issue, before a ‘coordinated return’ is preformed.

8. In addition, the abovementioned instructions to the forces were clarified by a message from the Southern Command, which clarified that ‘coordinated returns’ should be preformed only according to the obligating command.

9. All the facts detailed in the articles of this response are known to me as part of my position and are true to the best of my knowledge.

10. I declare that this is my name, this is my signature and the content of my affidavit is true.

Signed by Yoel Strick

Authentication:

I the undersigned, attorney Avi Kalu, hereby confirm that on September 1, 2008 appeared before me Brigadier General Yoel Strick, who I know personally and after I have warned him that he should declare the truth and that if he will not do so he will be subject to the sanctions prescribed under the law, signed his affidavit before me.

Signed by attorney Avi Kalu