Sudanese refugees 298.
(photo credit: Ariel Jerozolimski)
The High Court of Justice on Wednesday issued a show-cause order instructing the government to explain why it has jailed Sudanese refugees without an independent judicial review of their cases.
The decision came at the end of a hearing on a petition submitted by Tel Aviv University's Refugee Rights Program and Hotline for Migrant Workers on behalf of four refugees who were arrested after crossing the border from Egypt and put in jail on charges of "infiltration" according to the 1954 Prevention of Infiltration Law.
The army began to detain Sudanese refugees who crossed the border from Egypt into Israel in February 2006, after the numbers of refugees increased dramatically. Between 2004 and 2006, the first roughly 100 Sudanese refugees were detained according to the Entry to Israel Law.
There are significant differences between the two laws. For the purposes of the petition, however, the key difference has to do with the terms whereby "illegal sojourners" and "infiltrators" are held in custody pending their expulsion.
According to the Entry into Israel Law, an illegal sojourner who has been detained must be brought within four days before an independent, quasi-judicial court, where he is given the opportunity to plead his case. If the court decides to expel him, he is sent to jail until the expulsion order is executed.
If there is a delay in the execution of the order, he must be brought before the court once a month for a review of the case. According to the Prevention of Infiltration Law, the detainee never has the opportunity to explain why he has come. As soon as he has been picked up by the army, he is sent to the Ketziot jail, whereupon the Minister of Defense issues an expulsion order.
According to the law, the infiltrator will wait in jail until the order is executed, without any independent official reviewing his case. The problem with the Darfur refugees is that for the foreseeable future, Israel cannot expel them because returning them to Sudan would endanger their lives. The expulsion order is really an open-ended jail sentence.
The petitioners demanded that the Darfur refugees be held according to the Entry to Israel Law, so that they would enjoy the right of judicial review. (In the case of illegal sojourners, the review is conducted by a lawyer rather than a judge. The lawyer is appointed by the Justice Ministry but has independent status. Detainees must be brought before the official once every 30 days.)
The petition was originally submitted 10 months ago. From the beginning, it was clear that the court did not approve of the terms according to which the Sudanese refugees were being held. As a result of pressure from the court, the army appointed a "dayan" (judge) to examine the state of the refugees once every two months and hand down an advisory opinion as to what, if anything, should be done.
This was the state of affairs until Wednesday's hearing. Going into the hearing, the petitioners argued that the appointment of a "dayan" who was not independent and only served in an advisory capacity was an insufficient remedy. They insisted that all the refugees should be treated as illegal sojourners according to the Entry to Israel Law.
During the hearing, the state's representative, Attorney Gilad Shirman, told the court that the new arrangement worked well. By now, 100 Sudanese refugees had been released from jail and were living on agricultural settlements throughout the country, he said. He also maintained that the jail conditions of Sudanese refugees who had entered Israel according to the Entry into Israel Law and the Prevention of Infiltration Law were identical.
Furthermore, the "dayan" took into consideration how long a refugee had been in jail in determining whether to let him move to an agricultural community. However, the petitioners, represented by Attorneys Anat Ben-Dor and Yonatan Berman, said they saw "serious danger in allowing administrative detention without judicial review."
Berman also pointed out that the changes implemented by the state at the insistence of the court were informal arrangements.
"We have here a system that is not anchored in law," he said. Berman also pointed out that the army's system did not work properly. The "dayan" did not visit every jail were refugees were being held and some of the refugees had been languishing in jail for more than a year.
Beinisch granted the show-cause order, meaning that the petitioners have passed the first hurdle and the onus will now be on the state to defend its policy.