11 Chap. L. Rev. 601 (No PDF)
Chapman Law Review
ESCAPE FROM DARFUR: WHY ISRAEL NEEDS TO ADOPT A COMPREHENSIVE DOMESTIC REFUGEE LAW
Copyright (c) 2008 Chapman Law Review; Holly Buchanan
Hagga Abbas Haroun was a twenty-eight year old refugee from the Darfur region of Sudan. Haroun’s parents saved their resources to provide Haroun, the oldest of nine children, with an education from the University of Sudan. After graduating from the University, Haroun became known in the region as an outspoken supporter of other villagers in Darfur. In 2003, after brutal violence had erupted in Darfur, Haroun’s uncle, aunt, and brother were killed by Janjaweed militiamen. Haroun and her husband then fled the massacre in Darfur to Sudan’s capital, Khartoum, where they were confronted with the option of remaining in war-ravaged Sudan or fleeing to a neighboring country. They chose to travel north to Egypt. At ten p.m. on July 21, 2007, a group of refugees traveling from the region of Darfur, which included Haroun, her two-year old daughter and her husband, attempted to cross the Sinai border from Egypt into Israel in search of safety. When one of the children began to cry, Egyptian border guards opened fire shooting a nine-year old girl in the back, a man in the stomach, and Haroun, who was seven months pregnant. Haroun was fatally shot in the head.
Haroun’s story is just one of the many documented accounts of Egyptian soldiers’ use of brutal force on asylum seekers crossing the Egyptian border into Israel. Israel’s lack of procedures for managing the admission of refugees crossing its border is of equal concern. For example, on August 19, 2007, Israel deported forty-eight African asylum seekers to Egypt without applying any process for determining whether they were refugees and without allowing them to apply for, or even request, asylum in Israel. Some of these forty-eight asylum seekers had fled the atrocities occurring in the war-torn region of Darfur.
Recently, Israel has experienced a significant increase in Sudanese asylum seekers, resulting from Sudan’s long-term civil war and the current ethnic-based war in Darfur. Israel’s current policy of immediate deportation of refugees and asylum seekers to Egypt has raised international concern about the fate of refugees from Darfur denied asylum by Israel. Furthermore, Egypt has proven to be unsafe for African refugees and has now begun to deport Sudanese refugees back to Sudan. The 1951 Convention Relating to the Status of Refugees (hereinafter, the “1951 Convention”) is the principal international instrument establishing the legal rights of refugees and prohibits the expulsion of refugees to a territory where his or her life or freedom would be threatened. Israel is a signatory to the 1951 Convention, but has not met its obligations as such by failing to enact a domestic refugee law for non-Jewish refugees. Since asylum seekers from Darfur meet the requirements of refugee status under the 1951 Convention’s definition, they are entitled to its protection. While many Sudanese asylum seekers may meet the criteria of a refugee, this Comment focuses on Israel’s obligations under the 1951 Convention in relation to refugees from the smaller region of Darfur.
The increase of Africans seeking asylum in Israel has created numerous issues of international law regarding Israel’s treatment of these asylum seekers. In response to this influx of asylum seekers, Israel has implemented several laws and policies relating to this problem. This Comment argues that Israel’s laws and policies concerning the treatment of refugees from Darfur, primarily their recent deportation to Egypt, are in breach of the 1951 Convention. In addition, this Comment proposes that Israel adopt a comprehensive refugee law incorporating the principles of the 1951 Convention and providing specified procedures for refugee status determination.
Part I of this Comment traces Sudan’s history of violence, which has led to a significant number of Sudanese refugees in search of asylum in other countries, such as Israel. Part II of this Comment identifies and examines the applicable laws relating to refugees’ rights, including the 1951 Convention and various Israeli laws and policies, and discusses how these laws affect refugees. Part III of this Comment critiques the laws and policies that Israel has implemented to manage the increase of African asylum seekers crossing its border by demonstrating that these domestic laws and polices are in breach of international law. Part IV of this Comment provides a refugee analysis under the 1951 Convention for asylum seekers from Darfur, which explains why these individuals satisfy the criteria for refugee status. Part IV also proposes that Israel enact a comprehensive domestic refugee law, officially adopting the principles of the 1951 Convention. Finally, Part IV provides a comparative model for the framework of Israel’s new refugee law and proposes possible solutions for Israel’s management of the overflow of refugees from Darfur and other regions to whom Israel is unable to grant asylum. This Comment concludes by suggesting that, after applying a process for refugee status determination in compliance with the 1951 Convention, Israel should make a significant effort to grant asylum to at a least a few thousand refugees from Darfur.
I. A Brief History of Sudan’s Domestic Conflicts Leading to a Massive Increase of Sudanese Asylum Seekers
A. A Brief History of Sudan’s Internal Violence
Since its independence from Britain in 1956, Sudan has experienced continuous violence, primarily due to religious and ethnic discrimination and persecution. This tension originated between the northern and southern regions of Sudan. Southern Sudan is primarily composed of black, Christian and Animist African tribes, whereas northern Sudan is mainly populated by Arab Muslims. Religious and ethnic tension between the North and South eventually erupted into a twenty-two year civil war. However, the most recent conflict in Sudan involves the western region of Darfur, where black African farming tribes have clashed with government-supported Arab African nomadic tribes. The brutal violence in Darfur officially began in 2003 and, since then, there have been continuing atrocities occurring in the region among various tribes and the Sudanese government.
1. Sudan’s North-South Civil War
Sudan’s twenty-two year civil war broke out in 1983, when Sudanese President Nimeiri declared Arabic as Sudan’s national language and imposed Islamic law on the country. In response to these actions, non-Muslim soldiers in the South established the Sudan People’s Liberation Army (SPLA) and a corresponding political organization, the Sudan People’s Liberation Movement (SPLM). The SPLA demanded the Sudanese government repeal its imposition of Islamic law, but President Nimeiri refused and ordered the military to destroy the SPLA. Fighting between Nimeiri’s military and the SPLA resulted in the deaths of thousands of Sudanese in the South.
In 1985, a military coup overthrew President Nimeiri and, in 1986, Sadiq al-Mahdi was elected prime minister of Sudan. The Mahdi government initiated narrow measures in its attempt to end the civil war, such as a partial abrogation of Islamic law. However, the SPLA demanded an absolute repeal of Islamic law, which Mahdi rejected. Mahdi and the SPLA finally reached a cease-fire agreement in 1988 and scheduled a conference to create a new secular constitution for Sudan. However, these peace talks were abruptly destroyed when the National Islamic Front (“NIF”) ousted Mahdi in a military coup. The NIF appointed Hassam Ahmed al-Bashir as Sudan’s new leader. The new government’s objective was to “Arabize” and “Islamize” Sudan by implementing measures forcing Arab culture and Islamic religion upon non-Muslims. Bashir dissolved the Sudanese National Assembly and all political parties. Bashir continued to close down the press and all secular associations and established a new military, the Popular Defense Force.
The NIF employed war tactics targeted primarily at southern African tribes because of their resistance to the government’s imposition of Arab culture and Islamic religion. These tactics included bombing of civilian targets, such as hospitals, churches, and United Nations (UN) humanitarian aid centers. The NIF also armed northern Muslim tribesmen to commit atrocities by raiding southern villages. During these raids, the northerners would enter villages, kill all adult black males and abduct the women and children. These women and children were taken as slaves and were “usually either kept by their Arab captors, given to other Arabs as gifts, traded with other Arab countries, or branded as cattle and sold at auctions in exchange for cows or camels.” Many female slaves were raped by their masters, and male children taken as slaves were often conscripted to join the government’s military.
After almost two decades of civil war, over two million people had died and another four million were displaced from their homes. In 2002, the Bashir government and the SPLA signed a cease-fire agreement to formally end the civil war. However, the violence continued until 2005 when the Comprehensive Peace Agreement was signed, which formally ended the civil war. Although there appeared to be a possibility of peace in Sudan when this landmark agreement was signed, a new chapter in Sudan’s volatile history had emerged in the western region of Darfur.
2. The Current Conflict in Darfur: Additional Refugees in Desperate Need of Asylum
Tension has existed in Darfur between Arab African nomadic herders and black African farmers from the Fur, Massaleit, and Zagawa tribes over land use rights. Unlike the primarily religious-based conflicts between northern and southern Sudan, the violence in Darfur is motivated by an ethnic conflict between Arab Africans and black Africans in the region. Both Arab and black Africans in the Darfur region are predominantly Muslim. These groups have fought over grazing rights, access to water and use of productive agricultural land in the increasingly arid climate of Darfur. The use of armed violence between these groups originated when the Sudanese government armed Arab tribes in the region to help defeat the SPLA. Thereafter, one of these Arab tribes attacked the Fur, Massalit, and Zagawa tribes to take over land and water rights. After Bashir took control of the Sudanese government, non-Arab tribes in Darfur were disarmed. The pro-government Arab tribes, however, were permitted to retain their weapons. In 2003, two rebel groups from Darfur’s farming region, the Sudan Liberation Army (SLA) and the Justice and Equality Movement (JEM), revolted against the Sudanese government. This rebellion was sparked by discontent with the lack of political power, social services and basic infrastructure in the region. Non-Arabs in Darfur also felt that they were being oppressed by a government supportive of Arab Africans.
The Bashir government has escalated the tension between Arab Africans and black Africans in Darfur and is accused of supporting and arming the pro-government Arab militias, the Janjaweed, in response to the SLA and JEM’s actions. The government has reportedly supported aerial bombardments of civilian villages, which are usually followed by Janjaweed raids. This pattern provides strong evidence that the government is closely involved in the Janjaweed’s brutal actions against black farming tribes in Darfur. There are also reports that the government has provided the Janjaweed with salaries and communication equipment.
Attempts at an effective peace agreement between the pro-government Janjaweed and rebel groups have been unsuccessful, leading to further divisions within the two rebel groups. These divisions have created even more complex fighting between the various groups. To complicate matters further, the Janjaweed militias have become frustrated with the Sudanese government, fearing that the government will blame them for crimes committed against villagers. The new rebel factions emerging in Darfur have made the potential for peace in the region increasingly unlikely.
At least 200,000 villagers in Darfur have died and 2.5 million people, primarily black African farmers, have been displaced from their homes. Displaced persons have sought shelter and protection in camps outside Sudan’s capital. These camps lack sufficient food, water and medicine and are patrolled by the Janjaweed. “Darfuris say [that at these camps] the men are killed and the women raped if they venture too far in search of firewood or water.” Alternatively, many Darfurians have fled to the neighboring country of Chad. However, the Darfurians’ safety is threatened in Chad by an ongoing conflict between Sudan and Chad, which is fueled by accusations that each country is funding the other’s rebel groups. Darfurians have also sought asylum in other African countries, but most often they have fled to Egypt. From Egypt, many asylum seekers continue on to Israel in search of the security that Egypt has been unwilling to provide.
B. Israel’s Relationship to Asylum Seekers from Darfur
In the past year, Israel has become increasingly involved, albeit indirectly, in Sudan’s internal conflicts. Although Sudan and Israel are officially enemy nations, many Sudanese who fled Sudan’s civil war, and, more importantly, those fleeing persecution and violence in Darfur, have sought refuge in Israel. Many Sudanese seek asylum in Israel because they believe that Israel will provide them with safety, freedom and opportunities. Sudanese asylum seekers travel through Egypt and across the Sinai border into Israel. Generally, this journey is by foot, and the few who manage to raise enough money hire Bedouin guides to help them cross into Israel. This increase of Sudanese asylum seekers in Israel has raised numerous issues of international law that Israel must now confront. In order to adequately resolve these issues, Israel must first determine whether asylum seekers are refugees or merely economic migrants.
There is a widespread perception among Israeli politicians that Sudanese coming from Sudan to Israel, after either residing in Egypt or just passing through, are economic migrants rather than refugees. The assumption is that most Sudanese entering Israel are economic migrants because they first sought asylum in Egypt and then chose to migrate to Israel in search of better job opportunities. Admittedly, some Sudanese have found it incredibly difficult to gain employment in Egypt due to discrimination and thus decided to continue on to Israel.
However, it is insufficient for Israel simply to claim that all Sudanese crossing its border are economic migrants. Israel must ascertain which immigrants are economic migrants as opposed to bona fide refugees because only those classified as refugees are entitled to the protection of the 1951 Convention. An economic migrant is a person who voluntarily leaves his or her country to move elsewhere due exclusively to economic motives. Although an economic migrant is not a refugee, these concepts are not mutually exclusive. A person may still meet the criteria for refugee status under the 1951 Convention even if there are some economic considerations that motivated the person to leave his or her country of origin. Therefore, Israel cannot correctly presume that, because an asylum seeker is in search of better economic conditions, he or she should automatically be classified as an economic migrant.
Sudan’s long history of internal violence has caused a progressively increasing number of Sudanese refugees to seek asylum in nearby countries. This surge of refugees has opened the door to numerous issues relating to the legal rights of refugees. The massacre occurring in Darfur has added to this problem and has compelled Israel to gradually become more involved. There are important international laws and Israeli laws and policies that substantially affect the treatment and rights of refugees from Darfur while in Israel.
II. Applicable International Law and Israeli Laws and Policies Relating to the Rights of Refugees
There are both international and domestic laws and policies relating to the treatment and rights of refugees in Israel. The primary international instruments concerning refugees are the 1951 Convention and the 1967 Protocol to the 1951 Convention Relating to the Status of Refugees (“1967 Protocol”). In addition, the UNHCR provides the foremost guidance on the interpretation and implementation of the 1951 Convention and 1967 Protocol. Although Israel does not have a comprehensive domestic refugee law, it has adopted various laws and policies that have an effect on refugees in Israel.
A. International Law Relating to the Refugees’ Rights
After World War II, twenty-six nations, including Israel, met to devise a comprehensive plan to care for the hundreds of thousands of individuals displaced by the War, largely as a result of the Holocaust. These nations adopted the 1951 Convention in hopes of a solution to the massive refugee dilemma caused by World War II. The 1951 Convention is the most comprehensive international instrument setting forth refugees’ rights and minimum standards contracting states are obligated to follow. Israel was one of the founding signatories to the 1951 Convention. When originally enacted, the 1951 Convention applied only to individuals who had become refugees as a result of actions occurring before January 1, 1951. However, in response to the conflicts arising after 1951, which created many new refugees, the UN expanded application of the 1951 Convention to all refugees without any date restrictions in the 1967 Protocol. Subsequently, states had the option to ratify the 1967 Protocol to expand the application of the 1951 Convention. Israel was again one of the original signatories to the 1967 Protocol.
1. Relevant Principles of the 1951 Convention and 1967 Protocol
As noted, the 1951 Convention and the 1967 Protocol are the primary international legal instruments defining the term, “refugee” and refugees’ rights, as well as, the legal obligations of contracting states. The 1951 Convention and 1967 Protocol define a refugee as:
[A person who] owing to [a] well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his [or her] nationality and is unable or, owing to such fear, is unwilling to avail himself [or herself] of the protection of that country; or who, not having a nationality and being outside the country of his [or her] former habitual residence as a result of such events, is unable, or owing to such fear, is unwilling to return to it.
Those who qualify as refugees are distinct from asylum seekers and are entitled to protection under the 1951 Convention. “Asylum seekers are people who have moved across international borders in search of protection under the 1951 Refugee Convention, but whose claim for refugee status has not yet been determined.”
Articles 3, 32, and 33 of the 1951 Convention are the fundamental provisions with which Israel has failed to adequately comply with in its implementation of laws and policies relating to refugees. Article 3’s non-discrimination clause requires that the 1951 Convention’s provisions be applied “to refugees without discrimination as to race, religion or country of origin.” Under Article 32, a refugee cannot be expelled by a contracting state unless it is necessary for national security or public order, in which case the decision to expel must be “reached in accordance with due process of law.” Unless compelling national security justifications dictate otherwise, due process requires that a refugee “be allowed to submit evidence to clear himself [or herself], and to appeal to and be represented . . . before competent authority . . . .” Arguably, the most important provision of the 1951 Convention is Article 33’s prohibition of refoulement. This provision states that “[n]o Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to . . . territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”
2. The United Nations High Commissioner for Refugees
The 1951 Convention provides the essential legal framework to which contracting states must adhere but does not prescribe the procedures necessary for implementation of these laws. The UNHCR provides the principal source of guidance for interpreting the 1951 Convention. Therefore, contracting states should look to UN guidelines for guidance on enforcing the provisions of the 1951 Convention. The UNHCR was created by the UN in 1950 to protect refugees and assist them in rebuilding their lives. The UNHCR assists refugees by helping them integrate into the country of first asylum or resettle in a third country. This agency focuses on ensuring that individuals are not returned to a country where they fear persecution. The UNHCR is charged with ensuring compliance with international refugee laws by working with governments to monitor their refugee laws and policies. To perform these functions, the UNHCR created the Procedural Standards for Refugee Status Determination (“RSD Procedures”) under the UNHCR Mandate and the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (“UNHCR Handbook”).
The UNHCR Handbook explains that a person who meets the criteria of a refugee under the 1951 Convention is, in fact, a refugee, even if refugee status has not yet been recognized. The UNHCR Handbook prescribes that refugee status determinations must be made on a case-by-case basis by ascertaining the relevant facts and then applying the 1951 Convention to these facts. The RSD Procedures establish the essential steps that should be taken when an asylum seeker applies for refugee status with the UNHCR. The RSD Procedures stipulate that those applying for refugee status with the UNHCR have a right to an individual RSD interview. The RSD Procedures also state that “[u]nder no circumstance should a refugee claim be determined in the first instance on the basis of a paper review alone.”
B. Israel’s Laws and Policies Affecting Refugees and Asylum Seekers
The UNHCR has been working in Israel for the past twenty-five years and is represented by Michael Bavly, a former Israeli diplomat. Previously, the UNHCR in Geneva made the final determination as to whether individuals should be granted refugee status in Israel. However, currently the UNHCR in Israel is only responsible for the initial assessment of refugee claims. The UNHCR in Israel interviews asylum seekers and makes recommendations as to the outcome of these claims to the National Status Granting Body (NSGB). Reportedly, the UNHCR in Israel only recommends that about one percent or less of its total applications be sent to the government for refugee status approval.
Although Israel is a party to the 1951 Convention and permits the UNHCR to operate in Jerusalem, Israel does not have a domestic refugee law for non-Jewish immigrants. Rather than enacting a comprehensive refugee law, the Israeli government establishes informal policies addressing refugee issues as they arise. Despite Israel’s failure to enact a comprehensive domestic refugee law, Israel is still bound by the principles of the 1951 Convention. Therefore, even if Israel continues to adopt new regulations to deal with the increasing number of asylum seekers rather than enact an actual law, these regulations must comply with the 1951 Convention.
Although Israel does not have a comprehensive domestic refugee law, Jewish immigrants who enter Israel and choose to remain are granted Israeli citizenship under the Law of Return. This law states that citizenship shall be granted to “every Jew who has expressed his desire to settle in Israel, unless . . . the applicant . . . is engaged in activity directed against the Jewish people; or . . . is likely to endanger public health or the security of the State.” As an alternative to adopting a domestic law specifically relating to refugees’ rights, Israel has applied the Prevention of Infiltration Law, the Regulations Regarding the Treatment of Asylum Seekers and the current “hot return” policy to non-Jewish refugees. However, these solutions fail to satisfy Israel’s obligations under the 1951 Convention.
1. The Prevention of Infiltration Law
Under Israel’s Prevention of Infiltration Law (hereinafter “Infiltration Law”), a person who is either a national of an enemy country enumerated in the law or who has passed through one of these countries before entering Israel may legally be detained. The Infiltration Law was enacted in 1954 as an emergency measure providing harsh penalties for infiltrators, since they were considered a serious security threat to Israel at the time. The Infiltration Law authorizes the establishment of tribunals for assessing claims brought under this law, but does not provide for judicial review. There is a one-judge tribunal for first instances and a three judge panel for appeals. Only officers of Israel’s defense army may serve as tribunal judges. Anyone who falls within the Infiltration Law who enters Israel illegally is presumed to be an infiltrator and has the burden of rebutting this presumption.
2. The Regulations Regarding the Treatment of Asylum Seekers in Israel: Israel’s Insufficient Attempt at a Comprehensive Refugee Policy
Israel has created a set of policies pertaining to the treatment of asylum seekers in an internal, unpublished document known as the Regulations Regarding the Treatment of Asylum seekers in Israel (hereinafter “Regulations Regarding Asylum seekers”). The Regulations Regarding Asylum Seekers were created by a government committee in collaboration with the UNHCR and authorized by the Israeli Minister of the Interior in 2001. Unfortunately, these regulations do not fully comply with the provisions of the 1951 Convention and fail to incorporate an adequate portion of the UNHCR guidelines. These regulations provide that a UNHCR representative shall review applications and have discretion to determine whether further investigation is necessary. Representatives will only interview an applicant if they determine that additional information is necessary. Under the Regulations Regarding Asylum Seekers, applicants who pass this preliminary stage are to be protected from deportation while the status of their application is pending. The UNHCR then sends the applicant’s information to the Ministry of the Interior, who ultimately decides whether an applicant is granted refugee status. Therefore, the Regulations Regarding Asylum Seekers directly contradict the RSD Procedures’ recommendations that all applicants are entitled to an interview and that refugee status determination shall not be based solely on papers presented. More importantly, the Regulations Regarding Asylum Seekers fail to include the 1951 Convention’s prohibition of refoulement.
3. Israel’s New “Hot Return” Policy
In July 2007, Israel’s Prime Minister, Ehud Olmert, adopted the “hot return” policy with Egyptian President Hosni Mubarak. Under this policy, “asylum seekers [are turned] back at the [Sinai] border without allowing them to consult with the appropriate authorities and apply for refugee status.” The Israel Defense Force is ordered to deport anyone who is apprehended for illegally crossing the border back to Egypt within hours. According to an Israeli government spokesperson, David Baker, the “hot return” policy applies to all non-Jewish asylum seekers, including those from Darfur. On August 19, 2007, Israel officially enforced the “hot return” policy when it deported forty-eight African asylum seekers, including some from Darfur, to Egypt. This expulsion sparked international controversy over Israel’s new policy and raised concerns about the fate of these asylum seekers and others already present in Israel.
The 1951 Convention and 1967 Protocol are the most extensive international laws defining the legal rights of refugees. These laws set forth the minimum standards required for the treatment of refugees by contracting states. In addition, the UNHCR provides the foremost guidance on how the 1951 Convention’s standards shall be applied by contracting states through the implementation of domestic laws. Rather than enacting a comprehensive refugee law, Israel has adopted and applied various laws and policies relating to the treatment of refugees. However, these laws and policies fail to meet Israel’s legal obligations under international law.
III. Israel’s Responses to the Increase of Sudanese Asylum Seekers are in Breach of International Law
The number of Africans crossing the border into Israel has significantly increased in recent years. African asylum seekers enter Israel from Egypt through the Sinai border because it is the only land route from Africa to Europe. Of the estimated 2,400 Africans who have entered Israel through the Sinai border recently, approximately 1,700 are from Sudan, including seven hundred from Darfur. Many Sudanese fled their country to Egypt escaping violence and persecution only to discover that they were subjected to severe racial discrimination, police abuse, and death. Because the harsh treatment in Egypt is reminiscent of the suffering experienced in Sudan, many Sudanese refugees and asylum seekers have risked their lives fleeing to Israel in a continued search for safety. Israel’s responses to this increase of African asylum seekers are in breach of international law.
A. Israel’s Imprisonment of Sudanese Asylum Seekers
Israel’s recent treatment of non-Jewish asylum seekers, particularly those from Sudan, has been inconsistent. Furthermore, its policies are in breach of international law. By following its domestic policies and laws, Israel has failed to comply with the 1951 Convention. Israel has implemented measures, such as imprisoning asylum seekers and instantly deporting them to Egypt. Neither of these policies meets Israel’s obligations under international law. Therefore, these policies are unworkable solutions to Israel’s refugee situation.
When Sudanese asylum seekers, including some from Darfur, began seeking refuge in Israel, many were arrested at the border and imprisoned under the Infiltration Law and the Law of Entry. Although Sudan is not listed as an enemy country in the Infiltration Law, Egypt is because of the historically hostile relationship between Egypt and Israel. Therefore, under the Infiltration Law, Sudanese asylum seekers who cross through Egypt into Israel can be detained without judicial review. Israel’s Infiltration Law violates Article 3 of the 1951 Convention, which prohibits discrimination against refugees on the basis of country of origin. The Infiltration Law explicitly presumes that an individual, who illegally enters Israel from an enemy state, either by passing through that state or based on citizenship, is an enemy infiltrator. The 1951 Convention requires contracting states to apply its provisions without discrimination, but under the Infiltration Law, Israel discriminates against individuals crossing though Egypt into Israel.
The legality of the Infiltration Law is also questionable because it conflicts with the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (“Geneva Convention”), which Israel has signed and ratified. Article 44 of the Geneva Convention states that “the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government.” To the contrary, the Infiltration Law treats potential refugees as enemy infiltrators based primarily on the fact that they have passed through an enemy state. Since the Infiltration Law does not allow the motive of asylum seekers to be taken into account, it also does not permit officials to consider whether these asylum seekers in fact have no allegiance to the government of an enemy state. The true motive of refugees fleeing their country of origin is to seek protection from another country, since their own country has failed to protect them.
In what can be viewed as an acknowledgment of its own shortcomings, there was partial justice granted for the Sudanese refugees detained under the Infiltration Law in 2006 when the Israeli High Court of Justice ordered the Israeli government to propose a new policy for the treatment of imprisoned refugees. The High Court of Justice held that this new policy “must allow for a form of judicial review on a case-by-case basis” for refugees who are imprisoned. In this case, the High Court of Justice also held that the imprisoned Sudanese could not be denied judicial review, even under the Infiltration Law and rejected the government’s proposal that a military advocate perform this review. This decision expanded the holding in El-Tay’i et al. v. Minister of the Interior, where the High Court of Justice held that a refugee, even if from an enemy state, cannot be held for unreasonably long periods of time. Although these decisions have been important steps, the actual results have been relatively insignificant. By the end of 2006, eighty Sudanese were being held in Kibbutzim and another two hundred were detained in prisons.
B. Israel’s “Hot Return” Policy Violates the Principle of Non-Refoulement
Israel’s “hot return” policy violates the 1951 Convention’s non-refoulement provision by returning asylum seekers and refugees from Darfur to Egypt. Article 33 prohibits the return of refugees to any place where their lives or freedom would be threatened. The lives and freedom of asylum seekers and refugees from Darfur are threatened in Egypt based on their race and nationality. Sudanese refugees and asylum seekers, including those from Darfur, have experienced extreme racial discrimination and police abuse in Egypt. On December 30, 2005, at least twenty-seven Sudanese protestors in Egypt died after police used water cannons and batons to clear out a resettlement camp. The protest was in response to the UNHCR’s refusal to grant political asylum to any additional Sudanese in Egypt. Furthermore, seven hundred of the Sudanese protestors were detained and threatened with deportation, but were later released. Adding to the danger, there have been several reports of Egyptian border police using lethal force against refugees and asylum seekers from Darfur at the Sinai border.
In addition to persecution in Egypt, there is also a serious threat that Egypt will return those who are deported to Egypt back to Sudan under the “hot return” policy. Prime Minister Olmert has stated that Egypt has agreed not to deport any of the Sudanese returned in August of 2007 back to Sudan. However, an Egyptian government official claimed that Egypt never agreed not to deport any of the returned asylum seekers back to Sudan, nor is there an official written agreement that Egypt will not deport asylum seekers from Darfur back to Sudan. In fact, Egypt has deported at least five of the forty-eight African asylum seekers sent to Egypt under the “hot return” policy on August 19, 2007 back to Sudan. Since Sudan considers Israel an enemy state, under Sudanese law it is a crime punishable by imprisonment for a Sudanese citizen to visit Israel. The fate of asylum seekers from Darfur, if returned to Sudan, poses an even greater threat due to the continuing violence in the region. The whereabouts of the other forty-three asylum seekers sent to Egypt are unknown, but there are reports that some have been imprisoned and tortured in Egypt and may soon be deported back to Sudan. Therefore, in addition to directly violating the prohibition of refoulement by deporting potential refugees to Egypt, Israel has also indirectly facilitated refoulement by deporting these asylum seekers and potential refugees to Egypt since Egypt has now deported them back to Sudan.
Israel’s recent solutions to its current refugee dilemma are unworkable because they are in breach of international law. These impromptu policies are inadequate because they fail to meet Israel’s obligations under the 1951 Convention and the Geneva Convention. Furthermore, these policies do not provide any type of formal process for refugee status determination; rather, they provide virtually no process at all. In order to comply with the standards set forth by international law, which Israel has officially agreed to, Israel must implement a comprehensive refugee law.
IV. Israel Must Adopt a Comprehensive Immigration Policy with a Prescribed Process for Determining Refugee Status in Compliance with the 1951 Convention
To comply with the 1951 Convention, Israel must adopt a national refugee policy with prescribed procedures for adequately processing asylum applicants. Israel’s ad hoc policies, such as imprisoning asylum seekers and refugees and the “hot return” policy, do not meet the minimum requirements set forth in the 1951 Convention. This new policy must have a clearly stated process for determining refugee status based on the 1951 Convention’s definition of a refugee, to which all asylum applicants shall be entitled. Israel should implement specific procedures for refugee status determination, because qualifying asylum seekers are entitled to the rights set forth in the 1951 Convention. As a party to the 1951 Convention, Israel must ensure that refugees in its territory receive the rights provided by the 1951 Convention. Furthermore, Israel’s refugee law must include Article 33 of the 1951 Convention’s prohibition of refoulement and Article 32’s prohibition of expulsion of refugees, absent a national security or public order necessity. Israel’s new law must also provide for due process, including granting refugees permission to submit evidence that they are not a security threat and to appeal, if Article 32’s exception applies. In addition to adopting a domestic refugee law with a prescribed process for determining refugee status, Israel must devise a solution for handling refugees to whom it is unable to offer asylum.
A. Asylum Seekers from Darfur are Refugees under the 1951 Convention
Under the 1951 Convention’s definition of a refugee, asylum seekers from Darfur qualify as refugees and should thus be recognized as such by Israel. To comply with the 1951 Convention, Israel must adopt and adhere to a sufficient process for determining whether asylum seekers are in fact refugees. This process must include an analysis of whether an asylum seeker meets the requirements under the 1951 Convention’s definition of a refugee. This analysis must establish that there is a well-founded fear of persecution based on one or more of the five protected grounds enumerated in the 1951 Convention and, owing to such fear, the person must be unable or unwilling to return to Sudan.
The 1951 Convention does not define persecution or a well-founded fear of persecution; however, parties to the 1951 Convention have adopted various interpretations of what these concepts mean. For example, the United States Court of Appeals for the Ninth Circuit has defined “persecution” as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Under this definition, individuals from Darfur have a fear of suffering persecution because there has been a continuous infliction of violence upon black Africans based on their race. The UNHCR Handbook offers another interpretation. It acknowledges that persecution can be implied under Article 33 of the 1951 Convention as a threat to life or freedom on account of one or more of the five protected grounds. The lives and freedom of asylum seekers from Darfur are threatened by remaining in Sudan because black Africans in Darfur are being killed and their villages are being raided.
2. Well-Founded Fear of Persecution
The UNHCR Handbook explains that the well-founded fear requirement has an objective and subjective element. The subjective element refers to the individual’s state of mind, and the objective element refers to whether an individual’s personal fear is objectively reasonable. Asylum seekers from Darfur have a subjective fear that if they return to Sudan they will be killed, raped, or imprisoned. Moreover, Darfurians’ fear of returning to Sudan is well-founded because it is objectively reasonable to fear returning to the ongoing brutality occurring in Darfur. As noted, black African farming tribes have been targeted by the pro-government Janajweed through measures such as village raids, murder, and rape.
3. Asylum Seekers from Darfur have Suffered Persecution on Account of their Race, Membership in a Particular Social Group, and Political Opinion
According to the standards set forth in the UNHCR Handbook and the 1951 Convention, asylum seekers from Darfur have a well-founded fear of suffering persecution in Sudan based on their race, membership in a particular social group, and political opinions. More specifically, black farmers from Darfur’s Fur, Massaleit, Zagawa and other similar tribes have been targeted by government-supported Arab militias. These Arab militias are persecuting members of these tribes based on their race. More broadly, it could be argued that members of these tribes are being persecuted on account of their membership in these farming tribes. The UNHCR Handbook explains that “[a] ‘particular social group’ normally comprises persons of similar background, habits or social status.” The members of these farming tribes have similar backgrounds, habits and social status because they are from the Darfur region, they all participate in farming tribes and they are viewed by the Sudanese government as having the same social status.
Furthermore, these tribes are targeted by the Sudanese government based on politically motivated persecution. According to the UNHCR, a refugee applicant who alleges a fear of persecution based on political opinion must establish that he or she has a fear of persecution for holding an opinion critical of the government’s policies and actions. Members of these tribes have been openly critical of the Sudanese government for oppressing black Africans in support of Arab Africans in the Darfur region. As a result, these individuals fear persecution on account of their political beliefs.
Finally, many asylum seekers from Darfur are outside of Sudan and are unwilling to avail themselves to Sudan’s protection for fear of further persecution. Therefore, most, if not all, asylum seekers from Darfur satisfy the criteria of refugee status under the 1951 Convention. Although these asylum seekers qualify as refugees under the 1951 Convention, Israel has failed to officially recognize them as such. Israel must apply a particular process for refugee status determination to these asylum seekers, as well as to other asylum applicants.
B. A Comparative Proposal for Israel’s New Refugee Determination Process
Israel is in critical need of an official process for determining whether those crossing its border qualify as refugees under the 1951 Convention. The Regulations Regarding Asylum Seekers are insufficient because they lack the specificity necessary to provide adequate procedural safeguards for refugees and fail to set forth a process for determining refugee status. More importantly, the Regulations Regarding Asylum Seekers are not being properly enforced. Under the “hot return” policy, there is no process at all, because those crossing into Israel are immediately returned without the opportunity to request asylum. Without an official process that reduces the discretion of Israel’s UNHCR officials and the Ministry of the Interior, the Regulations Regarding Asylum Seekers provide only informal procedures that do not effectively comply with the 1951 Convention. Each individual who satisfies the requisite elements of a refugee under the 1951 Convention is entitled to its protection in Israel, and Israel needs to recognize this by implementing a new refugee policy.
The United States’ asylum procedures under the Immigration and Naturalization regulations provide a helpful example of what Israel’s refugee and asylum process should include. The United States has adopted the 1951 Convention’s definition of a refugee and places the burden on the applicant to prove that he or she satisfies the criteria of this definition. The procedures for an interview by an asylum officer are the key elements of the United States’ asylum process. The Immigration and Naturalization Act’s regulations prescribe that an asylum officer shall conduct a non-adversarial interview of each individual who has completed an asylum application. Every asylum officer is specially trained in international human rights law, refugee laws and principles, and non-adversarial interview techniques. An asylum officer is authorized to grant asylum to applicants who qualify as refugees. If the officer does not grant asylum to the applicant after conducting an interview and the applicant may be legally deported, the officer shall refer the application to an immigration judge for review in removal proceedings.
The United States also grants procedural protections to individuals apprehended while entering the country without proper documentation. These individuals are subject to expedited removal proceedings. If such an individual expresses a well-founded fear of persecution, the following process shall take place: the asylum seeker “shall be referred to an asylum officer for a reasonable fear determination . . . within 10 days.” This determination involves a non-adversarial interview and the officer must ensure that the asylum seeker understands the process. After the interview, the officer must write up a summary of the facts stated by the applicant and whether the officer finds that the applicant has established a reasonable fear of persecution. If the officer finds that the applicant has a credible fear of persecution, then the matter should be referred to an immigration judge for review of the request for withholding or deferring removal. If the officer concludes that the applicant has not established a reasonable fear of persecution or torture, then, at the applicant’s request, the officer’s summary of the facts, decision and basis for the determination shall be submitted to an immigration judge for review.
Through its laws and regulations, the United States has ensured that asylum applicants receive sufficient due process in compliance with its obligations under the 1951 Convention when seeking asylum or requesting that removal orders be withheld or deferred. The United States’ processes for interviews and judicial review provide a positive example for how Israel should structure its own refugee and asylum status determination process. In addition, Israel’s new process must contain a non-refoulement provision to ensure that asylum seekers who meet the qualifications of a refugee, even if not granted asylum in Israel, are not returned or deported to a territory where their freedom or life would be threatened. In order to implement this new process, Israel will need more trained asylum officers to process the large caseload of asylum requests that Israel is currently experiencing. These officers should be stationed at or near the Israel-Egypt border, since this is where the majority of asylum seekers have recently been entering Israel. Currently, Israeli soldiers are the only officers stationed at the border, and this is not a workable system because they are not trained to process asylum claims.
C. Possible Alternatives for Israel’s Management of the Overwhelming Increase of Asylum Seekers
Prime Minister Olmert’s primary goal at this time should be implementing a process for determining refugee status that Israeli officials must abide by and which complies with the 1951 Convention. However, after this process is implemented, Israel will still be unable to absorb all of those who are seeking asylum within its territory. Therefore, Israel should also adopt a procedure for handling those who qualify as refugees but for whom Israel lacks the resources to grant asylum. After all, the state of Israel was created in part as a refuge for survivors of the Holocaust and as such it should make a significant contribution to providing protection for those escaping what has been labeled genocide in Darfur.
1. A Memorandum of Understanding with Egypt to Ensure Protection of Refugees Deported from Israel to Egypt
Based on Egypt’s record of brutal abuse and discrimination against asylum seekers and refugees, Egypt is not the ideal host for Israel to send refugees to whom it cannot provide asylum. However, if Israel chooses to continue this practice, at a minimum Israel should adopt a memorandum of understanding with Egypt. This memorandum of understanding should ensure that any refugees sent to Egypt will be safe and that Egypt will not deport any refugees back to Sudan or any other country where their lives or freedom are threatened. Before sending any refugees to Egypt, Israel must first determine whether they are in fact refugees or whether they are economic migrants. Since Egypt is a signatory to the 1951 Convention, Israel should receive a formal declaration that Egypt will provide all refugees deported from Israel to Egypt with the rights guaranteed by the 1951 Convention. In addition, this memorandum should require that the Egyptian government take appropriate actions against Egyptian officials who have used deadly force against asylum seekers and refugees and request assurance that this violence and discrimination will be prohibited.
The memorandum of understanding regarding asylum seekers between the United States and Canada may serve as an example for such an agreement between Egypt and Israel. Under the Safe Third Country Agreement between Canada and the United States, asylum seekers must make a refugee claim in the first of these two countries in which they arrive. This agreement demonstrates an effort to better manage refugee claims of those seeking asylum in either country and only applies to asylum seekers entering either the United States or Canada through land borders. The Safe Third Country Agreement does not address all of the issues that Israel and Egypt must confront, but it does provide the structural framework of a bilateral refugee protection agreement that provides a check on abuses of each country’s refugee protection procedures.
2. Agreements with Third Countries to Provide Asylum to Refugees to whom Israel Cannot
Another strategy for how Israel may manage the influx of asylum seekers is to negotiate safe third country agreements with countries other than Egypt. These agreements would be similar to the proposed memorandum of understanding with Egypt. Israel should receive formal assurance from these third countries that any refugees sent from Israel will be safe and that the rights granted by 1951 Convention will be applied to all refugees. Israel must carefully determine which countries will be safe for refugees. Canada’s Immigration and Refugee Protection Act provides important factors to consider when deciding whether a third country is safe for refugees. These factors include whether the country is a signatory to the 1951 Convention and the Convention Against Torture, the prescribed policies and procedures for implementation of these conventions, the process applied for determining refugee status, and the country’s human rights record. These considerations are essential because, when sending refugees to a third country, Israel must ensure that it is not violating international law.
Israel is currently considering Ghana and Kenya as possible host countries for some of the refugees already present in Israel, but no agreements have been formalized. Since Israel has officially agreed only to grant asylum to five hundred of those from Darfur already present in Israel, there are at least 1,200 other Sudanese asylum seekers in Israel that it will not absorb. Although it is important to consider sending asylum seekers and refugees to third countries if Israel is not willing to grant them asylum, the small number of refugees that Israel has agreed to grant asylum is insufficient. As a country of seven million, Israel should reflect on its own history and consider granting asylum to at least a few thousand refugees from Sudan’s Darfur region. To properly handle the issues arising from the increasing number of individuals seeking asylum in Israel, Israel should adopt a comprehensive refugee law and implement a workable solution for the refugees to whom it cannot provide asylum.
The genocide occurring in Darfur has created complicated issues regarding the status and treatment of asylum seekers who have fled this war-torn region to Israel in search of protection. Israel’s current solutions to this problem are unworkable because they do not satisfy Israel’s obligations under international law. In order to adequately resolve these issues, Israel should adopt a comprehensive domestic refugee law that provides a specified process for refugee status determination in compliance with international law. Individuals from Darfur seeking asylum in Israel are uniquely important because they qualify as refugees under the 1951 Convention and are, therefore, entitled to its protection. Even if Israel is unable to grant asylum to all refugees from Darfur seeking asylum in Israel, Israel is obligated to ensure their safety once they have entered Israel and have met the criteria for refugee status. While there are many others aside from those from Darfur seeking asylum in Israel, their situation serves as a prime example for why Israel is in desperate need of a comprehensive refugee law. As a nation partly formed as a safe haven for survivors of the Holocaust, Israel should make a considerable effort to absorb at least a thousand, if not more, refugees who have fled the brutal violence occurring in Darfur.
30 Israel Yearbook on Human Rights 327 (Yoram Dinstein & Dr. Fania Dom eds., 2001) (referring to the holding of the Israeli case, HCJ 4702/94 El-Tay v. Minister of Interior  IsrSC 49(3) 843). This case involved the detainment of Iraqi citizens whose asylum requests were denied and expulsion orders had been issued against them. The detainees argued that if they were returned to Iraq they would be killed and the High Court of Justice held that Israel cannot expel a person to a place where his or her life would be in danger. Id. at 325-26. The Court also held that the principle of non-refoulement is not limited to refugees and that it “applies in Israel to any governmental authority which is connected to the expulsion of a person from Israel.” Id. at 326.