(Jerusalem) – The Israeli military has since June 2012 prevented dozens of asylum seekers, most of them Eritreans, from crossing Israel’s newly constructed fence on its border with Egypt, Human Rights Watch, the Hotline for Migrant Workers, and Physicians for Human Rights – Israel said today. Israel has also unlawfully deported dozens more back to Egypt, the three groups said. Israel should stop rejecting asylum seekers at the fence unless its officials determine in a fair procedure that they do not face threats to their lives or freedom or inhuman and degrading treatment because of that rejection.

In forcing asylum seekers and refugees to remain in Egypt and in deporting others, Israel is putting them at risk of prolonged detention in Egyptian prisons and police stations, where they cannot claim asylum, of forcible return to Eritrea, and of serious abuse by traffickers in the Sinai region. Israeli officials’ claims that Israel may seal its borders to anyone are wrong under refugee and human rights law.

“Building a border fence does not give Israel a right to push back asylum seekers,” said Gerry Simpson, senior refugee researcher and advocate at Human Rights Watch. “International law is crystal clear: no summary rejection of asylum seekers at the frontier and no forcible return unless and until it is established that their refugee claims are not valid.”

At least seven times since June, Israeli forces patrolling Israel’s newly constructed 240-kilometer border fence with Egypt’s Sinai region have denied entry to dozens of Africans, mostly Eritreans, thousands of whom continue to flee persecution in their country every year. In July, Israeli forces also detained about 40 Eritreans just inside the Israeli border and then forcibly transferred them to Egyptian custody.

The 1951 Refugee Convention, to which Israel is a state party, customary international refugee law, and international human rights law require all countries to respect the principle of nonrefoulement, which prohibits the return of anyone to a place where their life or freedom would be threatened or where they would face the threat of torture or inhuman and degrading treatment. This means anyone seeking asylum may not be summarily rejected at the border and may not be deported unless their claim has been fairly determined.

Based on Israeli government figures, about two-thirds of those trying to cross the border are from Eritrea, where Human Rights Watch has documented widespread and severe abuses against people seeking to avoid mandatory and indefinitely prolonged national service on wages barely sufficient to survive, and against adherents of “unrecognized” religions and government critics.

The United Nations High Commissioner for Refugees (UNHCR) says that more than 80 percent of Eritreans who claim asylum worldwide are recognized as refugees.

Recent interviews with Eritreans arriving in Israel confirm that many passing through Sinai to reach Israel are facing serious abuses, including torture and rape, by traffickers in Sinai who hold the Eritreans for ransom. Those who pay are allowed to travel onward to reach the Israeli border.

The three human rights organizations recently documented cases in which Israeli border guards blocked Eritreans and others at the fence, firing warning shots in the air, throwing stun grenades and teargas, and using long metal poles to push them back from the border fence. On some occasions, witnesses contended that Israeli soldiers had entered Egyptian territory and detained them until Egyptian forces arrived, although Israeli and Egyptian authorities have denied those accusations.

In one case a group of Eritreans alleged that Israeli soldiers allowed them to enter Israel but then beat them with fists and guns to force them back into Egypt.

“Not only are there credible reports that Israeli soldiers are blocking asylum seekers at the border, but also that they are using violence to do so,” Simpson said. “Israeli authorities should immediately instruct its border patrols to stop abusing people who try to enter Israel.”

Israeli aid groups also say that in recent months Israeli soldiers prevented them from assisting Eritreans who had been waiting for days at the fence. Israeli media reports also said Israeli soldiers had received orders to deny food and water to people trying to enter Israel, whom one soldier described to a reporter as “skinny like skeletons.”

Israeli authorities contend that asylum seekers to whom it denies entry can request asylum from Egyptian authorities, that Israel has the right to seal its borders, and that its obligations toward asylum seekers do not extend to those who are prevented from entering its territory. None of these arguments are correct under the Refugee Convention or international human rights law, the three rights groups said.

UNHCR’s Executive Committee – of which Israel is a member – has stated in its Conclusion No. 22 (1981) that, “In all cases the fundamental principle of non-refoulement involving non-rejection at the frontier must be scrupulously observed.” It elaborated on this inConclusion No. 82 (1997), stating that the principle of nonrefoulement prohibits “expulsion and return of refugees in any manner whatsoever…whether or not they have been formally granted refugee status” and establishes “the need to admit refugees into the territories of States, which includes no rejection at frontiers without fair and effective procedures for determining status and protection needs.”

UNHCR has stated, when intervening in legal proceedings, that “the extraterritorial applicability of the principle of non-refoulement...applies...to any person within a State Party’s actual control, irrespective of his/her physical location.”

With respect to Israel’s assertion that asylum seekers it turns away at the border can request asylum in Egypt, UNHCR’s Executive Committee has stated in its Conclusion No. 15 (1979) that, “Asylum should not be refused solely on the ground that it could be sought from another state."

UNHCR’s guidance on the safe third country concept says that while it is legitimate for a state to consider whether an asylum seeker had sought or could have sought asylum in another state he or she had passed through before reaching that state, this cannot be presumed but needs to be examined. UNHCR’s guidance maintains that the obligation to respect the principle of nonrefoulement still applies.

UNHCR’s guidance also “discourages unilateral action by States to return asylum seekers to countries through which they passed without the countries’ agreement, because of the risk of chain deportations, forcible returns to situations of persecution, and of orbit situations as well as the need for international solidarity and burden-sharing.”

Various credible sources say Egypt refuses to give UNHCR – which is solely responsible in Egypt for registering asylum claims – access to sub-Saharan nationals detained for lengthy periods in police stations in Sinai. Since 2008, Human Rights Watch has also documented cases in which Egypt has forcibly returned Eritrean refugees, registered asylum seekers, and would-be asylum seekers to Eritrea.

The three rights groups have also reported on widespread trafficker abuses against sub-Saharan Africans in Egypt’s Sinai desert, against which the Egyptian authorities have consistently failed to take effective action. Over the past few years, hundreds and possibly thousands of sub-Saharan Africans – most from Eritrea and Sudan – have been held and tortured for months in Sinai before crossing into Israel to claim asylum.

Human Rights Watch has repeatedly called on Egypt to locate and prosecute traffickers abusing asylum seekers, and to allow UNHCR access to asylum seekers detained by Egyptian authorities in Sinai.

Refugee rights groups have also documented dozens of cases in 2012 in which traffickers have kidnapped people from or near refugee camps in Ethiopia and Sudan and transported them against their will into the Sinai.

Recent medical examinations by Israeli doctors and interviews with some asylum seekers whom Israel allowed to cross the border for medical treatment because of their apparent poor health also provide evidence that Bedouin traffickers continue to torture and rape sub-Saharan Africans in Sinai. One man said traffickers had detained him for three months and forced him to work in a detention camp, where he heard women being tortured and saw other Africans held for ransom die while in captivity. His brother borrowed money and paid US$38,000 to secure his release.

The three rights groups said that when Israel returned asylum seekers to the Sinai ithout considering their cases, it was putting them at risk that Egypt would ignore their refugee claims, that it would forcibly return them to Eritrea, and that they would be abused by traffickers in the Sinai against whom the Egyptian authorities have been unable or unwilling to provide protection.

“Based on arguments that are wrong in law and on the facts, Israel is forcibly turning back people who have fled persecution at home, have faced severe abuse by traffickers in Sinai, and who then risk detention in Sinai with no access to asylum,” Simpson said. “There is simply no loophole justifying Israel’s denial of protection to asylum seekers by rejecting them at the border without fully considering their individual cases. To accept such a claim would be to accept the evisceration of refugee protection.”

For details about Israel’s position on its recent pushbacks of people on the Sinai border, international legal obligations, and the recent pushbacks, please see the text below.

Four Erroneous Israeli Arguments for Blocking Asylum Seekers

Israel has made four arguments to justify blocking asylum seekers at its fence on the Israel-Egypt border.

1. The sovereign prerogative to control immigration – the floodgates argument

On September 6, Interior Minister Eli Yishai told Israeli Army Radio that, “A sovereign country, responsible for its borders, can decide for itself who can enter and leave its territory,” and warned that making exceptions for individual groups of migrants would mean that Israel would have to allow entry to many of the “300 million people in Africa.”

While states do, indeed, have sovereign rights to control immigration, refugee and human rights law strictly prohibit refoulement – forced return that would expose people to persecution, torture, or inhuman and degrading treatment.

Refugee law says countries may not return or expel anyone claiming to be a refugee, including at their borders, without fairly considering their asylum claims. In its Conclusion on International Protection No. 22 (1981), UNHCR’s Executive Committee stated that, “In all cases, the fundamental principle of non-refoulement involving non-rejection at the frontier must be scrupulously observed.” And in Conclusion 99 (2004), the Committee called on states to ensure “full respect for the fundamental principle of nonrefoulement, including non-rejection at frontierswithout access to fair and effective procedures for determining status and protection needs.”

2. Refugee obligations do not apply outside a state’s territory – the extraterritoriality argument

In a July 27 affidavit submitted to an Israeli refugee lawyer, Anat Ben-Dor, an Israeli soldier said that in June his superior officers on the Sinai border had told him that blocking someone’s access to asylum procedures is lawful as long as they are blocked before they set foot on Israeli soil. The soldier said that on the basis of this advice, his unit had entered Egyptian territory three times, where it had intercepted Africans approaching Israel’s border fence and had handed them over to Egyptian border police.

Egyptian officials denied that Israeli forces are operating on Egyptian territory. However, on August 10, the Associated Press reported that the Israeli military spokesperson’s office stated that Israeli soldiers stopped groups of Africans near the border several times and held them “until the arrival of Egyptian forces that took the infiltrators.”

As a matter of law, a country’s obligation not to summarily return asylum seekers is not limited by territorial boundaries. Refugee law is not concerned with the place from which refugees are being returned but with the place to which they are being returned.

The 1951 Refugee Convention specifically prohibits countries from returning refugees “in any manner whatsoever” to places where their lives or freedom would be threatened. UNHCR has also stated that, “The principle of non-refoulement does not imply any geographical limitation,” that, “The resulting obligations extend to all government agents acting …within or outside national territory” and that as a result, “The extraterritorial applicability of the non-refoulement obligation [under the Refugee Convention] is clear.”

3. Refugee obligations do not apply to people who have not been officially recognized as refugees

In the past, under its so-called “hot-returns” policy, Israel said that as long as it apprehended irregular border crossers close to the border and returned them to Egypt within hours or days, it was not obliged to allow them to lodge asylum claims in Israel. In 2011, the military told Israel’s Supreme Court it had stopped the practice. But in July 2012, Israel appears to have returned at least 40 Eritreans less than an hour after they entered Israel.

A person who meets the “well-founded fear of being persecuted” definition is a refugee independent of being formally recognized as such, however. The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status says that recognition of refugee status is declaratory: “He does not become a refugee because of recognition, but is recognized because he is a refugee.” And UNHCR’s Executive Committee, in Conclusion 79 (1996), recognized that the principle of nonrefoulement prohibits the expulsion and return of refugees “whether or not they have formally been granted refugee status.”

Also, the proximity of apprehension to the time and place of entry are irrelevant to Israel’s obligation to abide by the prohibition on refoulement. UNHCR’s Executive Committee Conclusion 6 (1977) has affirmed “the fundamental importance of the observance of the principle of nonrefoulement - both at the border and within the territory of a State ….”

Frustrating the lodging of asylum claims or refusing to consider claims therefore does not legally absolve a country of its obligations to protect asylum seekers and refugees.

4. Egypt is a “safe third country”

In response to a petition by Israeli refugee rights groups, on September 4, Israel’s state attorney claimed Israel had no obligation to consider requests for asylum by Africans arriving at Israel’s border fence because they could claim asylum “in Cairo.”

UNHCR’s Executive Committee has stated in its Conclusion on International Protection No. 15 (1979) that, “Asylum should not be refused solely on the ground that it could be sought from another state.”

Israel has no formal agreement with Egypt governing the return of third country nationals – including asylum seekers – at the Sinai border, and Egypt has never made a commitment to Israel that it would allow asylum seekers among them to claim asylum.

Furthermore, Egypt systematically refuses to allow UNHCR to visit sub-Saharan nationals detained in police stations across the Sinai desert. Since UNHCR is solely responsible in Egypt for registering asylum claims, this practice prevents them from seeking asylum there and means Israel cannot claim that Eritrean asylum seekers refused entry to Israel at the Sinai border or returned to Egypt receive adequate protection.

Eritrean refugees and asylum seekers remain at risk of forcible return to Eritrea from Egypt. As recently as October 2011, Egyptian prison guards at the al-Shalal prison in Aswan beat 118 Eritrean detainees– including 40 registered refugees – to force them to sign papers for their “voluntary” return to Eritrea. Human Rights Watch has documented other cases in which Egypt has forcibly returned Eritrean refugees, registered asylum seekers and would-be asylum seekers to Eritrea.

Recent Cases Involving Israel Blocking or Deporting Eritrean and Other Asylum Seekers

According to various sources, on at least seven occasions since June, Israel has prevented dozens of Eritrean asylum seekers from seeking asylum in Israel on the Egypt-Israel border. In July, Israel also unlawfully deported around 40 Eritreans from Israel to Egypt.

Pushback Case 1

In October, the two Israeli nongovernmental organizations – the Hotline for Migrant Workers and Physicians for Human Rights-Israel – spoke to an Eritrean asylum seeker whom Israeli border guards had allowed to enter Israel because of his apparent ill-health. He said that although the guards had allowed him and another Eritrean man to cross, they had prevented four other Eritrean men and two Eritrean women from entering Israel. He said that before they had reached the Israel border, traffickers had held all eight of them – together with many other sub-Saharan Africans – for ransom in the Sinai before finally taking them to the Israeli border.

The man gave a detailed account of abuses he and others had faced at the hands of the traffickers. He spoke of the screams of women whom the traffickers beat while the women called their relatives on phones to plead with them to pay the traffickers a ransom to secure their release, of how men detained in other rooms said that the bodies of detainees who had died chained to each other were not removed for days, and of how traffickers forced him and other men to build rooms at their detention site.

The three rights groups were unable to verify independently whether the six Eritreans had been denied entry into Israel. However, Meron Estefanos, an Eritrean journalist and activist living in Sweden, spoke with Human Rights Watch and said she received a phone call on October 15 from the sister of one of the Eritrean men who had been denied entry to Israel. The woman said she had spoken with her brother, who was detained in an Egyptian prison. She said that during the call, an Arabic-speaking man had taken the phone from her brother and told her that if her family paid a fine, her brother would be released and be allowed to travel to Ethiopia.

Pushback Case 2

Two Eritrean women and a 14-year-old boy who were allowed to cross into Israel and who spoke with Israeli rights groups said that between August 28 and September 6, Israeli soldiers stationed at the border fence prevented them and 18 Eritrean men from entering Israel. One of the women said Israeli soldiers fired shots in the air when they first arrived at the fence and “twice threw [tear]gas at us and pushed a long metal pole through the fence to try and get us to move away.” The second woman said soldiers used teargas when members of the group tried to break through the fence.

The Israeli daily newspaper Haaretz reported that on September 11 an Israeli rights group, We Are Refugees, filed a complaint with Israel’s high court on behalf of the two women and the boy, who submitted affidavits stating that Israeli forces had used teargas and violence to force the other 18 people in their group away from the fence.

Israeli aid groups also said Israeli soldiers stopped them from helping the group. The two women and boy said that on September 6, the soldiers cut a hole in the Israeli border fence and allowed them to cross, but forced the 18 men to pass back through a second fence on the Egyptian side of the border on the other side of which they could see Egyptian soldiers.

Pushback Case 3

In a similar case, the Israeli daily newspaperYedioth Aharonothreportedon September 6 that for six days in August, Israeli forces prevented a group of about 20 Eritreans and Sudanese migrants from crossing the border fence. The article included an account from an Israeli soldier, who said his unit was ordered not give the group any food and to use teargas and stun grenades to force them away from the fence. On the following day, the paper reported that Israeli forces had received orders to prevent migrants from crossing the fence and to give them only bread and a small amount of water.

Pushback Cases 4 – 6

An Israeli soldier’s affidavit given to Anat Ben-Dor, the refugee lawyer at Tel Aviv University, said that in June Israeli forces detained at least three groups of sub-Saharan Africans at the border and forcibly handed them over to Egyptian forces without allowing them to claim asylum.

Pushback Case 7

The medical group Physicians for Human Rights-Israel has said that in August Israeli forces refused to allow a group of Eritreans to cross for four days. The group, whose size was not clear, was forced to remain for four days in an area near the border fence. An anonymous witness told the group by phone that Egyptian forces were guarding the Egyptian end of the area. The Israeli Defense Forces spokesperson’s office confirmed to Haaretz on August 10 that, “The IDF is operating in conjunction with Egyptian forces to extract the foreigners” from the area. Israeli forces eventually allowed the Eritreans to cross. They are now detained in the Saharonim detention facility in Israel’s Negev desert, near the border.

Possible Pushback Case 8

In another case involving possible unlawful blocking of entry, Israeli refugee rights groups reported on September 9 that Israeli forces had prevented a group of 11 Africans, including a pregnant woman, from crossing the border for three days. The rights groups have been unable to determine whether any members of the group were allowed to enter.

Unlawful Deportation Case

According to Estefanos, the Swedish-Eritrean journalist, on July 19 Israeli forces detained and unlawfully returned to Egypt a group of about 40 Eritrean asylum seekers, including a pregnant woman. Estefanos interviewed two of the returned men by phone on August 2 while they were in Egyptian detention.

The men said that when the group – which included people who had been beaten by traffickers –reached the Israeli border, Amharic and Arabic speaking Israelis soldiers said, “Welcome to Israel.” They told some of the group to get into a military truck and told the rest to walk along a road under construction next to the border fence on the Israeli side. After a short while, the soldiers told those on the truck to get out and ordered the whole group to cross back into Egypt.

One of the men said that when they refused, the Israeli soldiers contacted the Egyptian army by radio, soon after which four Egyptian soldiers arrived. The other man said he overheard the radio communication and heard the Egyptian soldiers tell the Israeli soldiers to push the group down a steep incline into Egyptian territory. The man said “We refused to get out, and so the [Israeli] soldiers beat us with their hands and gun-butts, and then threw us down [the incline]. Many of us were badly injured [by the Israeli soldiers] and the Egyptians took us straight to prison.”