State ordered to change policy on Sudanese refugees

By Rafael D. Frankel

The High Court of Justice gave the state 30 days at a hearing on Monday to propose a new policy to deal with the Sudanese refugees who are currently imprisoned in jails across Israel after escaping the civil war in their home country only to be arrested here.

The new policy vis-a-vis the refugees who have fled a civil war classified as a "genocide" by the United Nations must allow for a form of judicial review on a case-by-case basis that 51 Sudanese have been denied based on their detention under the Infiltration Prevention Law of 1954, the court said.

That act allows for the indefinite detention without judicial review of citizens from "enemy states" who infiltrate Israel.

Once the state comes up with an alternative scheme, the High Court will most likely schedule a second hearing on the matter. Until then, at least, the refugees will remain in prison.

"Justice [Dorit] Deinish said there must be some sort of special mechanism for refugees, that we can't treat them all as enemy citizens when we know a great part of them are people who escaped genocide in Darfur," said Yonatan Berman, a lawyer from the Hotline for Migrant Workers, who argued Monday on behalf of four Sudanese detained under the Infiltration Act.

"We have a very strong case. It's unthinkable that a person can be thrown into jail and that the High Court would approve of them being held with no judicial review for months and months." Though the Hotline was petitioning on behalf of its four clients, Berman asked that the remedy be applied to all 51 people who fit the same profile.

In its argument to the court, the state said the Infiltration Law specifically listed Egypt, from where the refugees crossed into Israel, as one of the countries from which people smuggle themselves across the border.

Secondly, Sudan is listed as one of six terrorism- supporting states. Thirdly, the trails used to smuggle the refugees are the same trails used to smuggle drugs, weapons and foreigners without status in Israel. However, the Court rejected those arguments, saying that citizens from Sudan did not necessarily pose a security threat to Israel based on their nationality.

The court also rejected a proposal from the state that a military advocate be the one to review the cases during the time in which the state amended the Infiltration Law - as it is planning to do - to allow for judicial review.

According to Berman, the state only began arresting Sudanese refugees under the Infiltration Law after the Hotline had succeeded in gaining the release from jail of around 20 who were arrested under the Entry Law, which allows for open hearings.

There are currently 190 Sudanese refugees in prison around the country, according to the Hotline. The petition heard by the High Court on Monday was only on behalf of those who were arrested under the Infiltration Law. Some have been held for as long as 11 months with no official hearing.

The case of the Sudanese refugees has sparked outcry from a variety of human rights organizations across Israel which oppose the imprisonment of refugees that claim to have fled a genocide.

The hearing comes just a week after Jewish groups led a host of demonstrations in the United States demanding that the international community put an end to the bloodshed in Darfur, the western Sudanese state where a government backed-militia has conducted a campaign of mass murder, rape and destruction over the last few years. Over 400,000 have died there with more than million made refugees.

"The cause is very clear, it's a human rights issue," said Eliezer Ya'ari, the director of the New Israel Fund, which is helping press the case of the refugees in the High Court. "We understand the complexity of the situation when you have people who are penetrating into Israel through the border. But ... these are people who are on the run from a humanitarian disaster. And our position is as long as they are here and they cannot go back home there is no reason for them to stay in jail because their crime is not really a crime."

Ya'ari added that, given the recent history of the Jewish people, helping those fleeing a genocide is a national obligation. "It's something about the responsibility of Jews around the world," he said.

©2006 The Jerusalem Post