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UNHCR grapples with Sudanese refugees detained and excluded from asylum in Israel

June 16, 2006

Report provided by Tel Aviv University Refugee Rights Clinic*

Since April, UNHCR has been assessing the cases of Sudanese refugees who entered Israel from Egypt, with tentative plans to refer many of them for resettlement. In the process, UNHCR is trying to cope with Israel’s policy of excluding “enemy nationals” from applying for asylum.

Sudanese refugees have been trickling into Israel from Egypt since at least summer 2004, but the rate of arrivals grew in the wake of the mass protests, killings and detentions of Sudanese in Cairo at the end of last year.

There were more than 200 Sudanese in Israel at the end of May, all arriving on foot over the desert, and nearly all detained indefinitely in Israeli jails. Refugees report lack of water during the journey and risks of getting lost in the desert. At least seven refugees, including one child, almost walked into a live fire exercise of the Israeli army.

Israel’s exclusion and detention policy poses a major dilemma for UNHCR, which must choose whether to directly confront an illegal state policy that violates multiple international conventions.

The refugees detained in Israel come from all regions of  Sudan, though those from Darfur have attracted the most attention in the media. Several survivors of Janjaweed attacks in Darfur have spent a year or more in Israeli prisons. Many Sudanese have been initially detained in remote army facilities, often unknown to human rights groups, UNHCR, and even civilian branches of the Israeli government.

After the intervention of the Tel Aviv University Refugee Rights Clinic, other Israeli human rights lawyers and UNHCR, a few Sudanese have been released on the condition that they remain inside kibbutzim (Israeli collective farms). UNHCR staff and human rights lawyers have helped a few women with small children to be relocated to shelters.

Exclusion by nationality

If these refugees were from nearly any other country, they would in most cases be released from detention and permitted to work in Israel. In most refugee cases, the Israeli Ministry of Interior conducts refugee status determination via an advisory committee known as the National Status Granting Board (NSGB). Under an arrangement in place since 2001, asylum-seekers apply to UNHCR, which interviews and assesses their cases before forwarding them to the NSGB. The NSGB then recommends a decision to the Minister of Interior.

Asylum-seekers in Israel are normally granted temporary work permits while their cases remain pending. Recognized refugees receive temporary residence permits that include full social security entitlements.

Yet, a provision of the Israeli asylum procedure excludes “enemy nationals” – a category that includes most Arab states, Iran and Sudan – from even applying. Known in the Israeli procedure as “Section 6,”  the exclusion has no basis in any Israeli legislation, and is found only in unpublished administrative instructions issued by the Ministry of Justice.

Section 6 flies in the face of several bodies of international law. The Fourth Geneva Convention specifically prohibits states from applying enemy nationals rules to refugees fleeing persecution. The 1951 Refugee Convention contains a similar rule, and also requires states to protect refugees “without discrimination as to … country of origin.” The Convention the Elimination of All Forms of Racial Discrimination prohibits states from singling out specific nationalities of foreigners for disadvantage.

In the last few months, the State has invoked Israel’s draconian Infiltration Law in order to detain some Sudanese without a hearing. Previously, Sudanese were detained under the Entry to Israel law, which provides for regular review of their imprisonment by a specialized tribunal. The tribunal had ordered a few Sudanese released to kibbutzim when the state failed to produce any evidence showing they posed a security threat. The State responded by invoking the Infiltration Law, and thus avoiding judicial review.

The Refugee Rights Clinic has filed petitions in the Israeli High Court challenging application of the Infiltration Law, and in Tel Aviv Administrative Court demanding work permits for detained Sudanese.

Israeli cabinet ministers have recently proposed adopting a policy called “hot return” by which Sudanese caught at the border would be returned to Egypt within 24 hours, with no opportunity to meet lawyers, UNHCR or appeal to court. The Refugee Rights Clinic has written to the Minister of Interior to express concern that such returns would violate the principle of non-refoulement.

A switch to resettlement

Until the end of 2005, UNHCR hoped to negotiate an agreement by which Israel could safely return Sudanese refugees to Egypt. The killing of more than two dozen protestors outside UNHCR’s Cairo office and the subsequent mass detention of Sudanese refugees in Egypt dashed these plans, at least temporarily.

On 31 January, UNHCR headquarters in Geneva decided to send a consultant to Israel to conduct individual status determination of the Sudanese. According an official notation of the meeting, “those applicants who are found to be refugees … will be resettled by UNHCR.”

The 31 January notation applies specifically only to 76 Sudanese who were already in Israel on that date. But by the time the consultant arrived in April, their numbers had more than doubled.

Individual refugee status determination may in the long run be a peripheral issue for the Sudanese in Israel. Sudan prohibits its citizens from travel to Israel and is reported to have executed two people who were returned from Israel via Jordan in the mid-1990s.  As a result, all of the Sudanese have sur place claims to refugee status based simply on their entry to Israel.

A dilemma for UNHCR

Israel’s enemy nationals exclusion poses a challenge for UNHCR. Since 2001, UNHCR has undertaken to resettle enemy nationals from Israel, a compromise that facilitated Israel’s agreement to set up its own asylum system.

In the 31 January notation, UNHCR referred to its RSD and resettlement policy as a “one-off solution,” and stated “UNHCR cannot endorse the systematic resettlement of refugees from so-called ‘enemy countries’ in Israel.” Nevertheless, the prospect of resettlement could attract more Sudanese to make the dangerous journey across the Sinai into Israel.

|n official correspondence that has been submitted to court, UNHCR has limited itself to providing factual information about the Sudanese. UNHCR could file formal interventions with Israeli courts to oppose the enemy nationals rule, but it has not done so.

A fragile asylum system under strain

The Sudanese arrivals add to other concerns about UNHCR’s role in Israel. Although in form refugee status determination for non-enemy nationals is handled by the government, most of the work falls on UNHCR’s tiny Jerusalem office, and backlogs have grown steadily.

Around 900 applications for asylum were filed in Israel in 2005. Less than 8 percent of applicants achieved any form of protection, most receiving only temporary protection. Only 9 applications were recognized as full Convention refugees. The Sudanese are effectively the largest group of refugees in Israel with bona fide refugee claims, but Israel has effectively transferred responsibility for handling them to the UN.

UNHCR’s Jerusalem office uses refugee status determination procedures that lack safeguards endorsed by UNHCR headquarters.  UNHCR-Jerusalem has rejected some refugee applicants without even interviewing them.  UNHCR-Jerusalem also refuses to allow applicants to bring lawyers to their RSD interviews, despite a September 2005 policy that accepts the right to counsel.

In addition, UNHCR’s Jerusalem office refuses to accept applications from Palestinians fleeing the occupied territories, arguing that they are excluded by nationality from refugee protection. There is in fact no such exclusion in international law. The Refugee Convention excludes only Palestinians who are “at present receiving” assistance from the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA).

In a 2002 interpretive note, UNHCR stated that the 1951 Refugee Convention can apply to a Palestinian who is “is outside UNRWA’s area of operations” or if a person is ineligible for UNRWA registration. UNRWA does not operate inside Israel. Most Palestinians in the West Bank fall outside UNRWA’s mandate because their families were not displaced in 1948.

* American lawyer Michael Kagan is both’s website manager and an instructor at the Tel Aviv University Refugee Rights Clinic.

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