On Monday morning, four black men, escapees from genocide and other immediate threats to their lives in Sudan, were brought by their IDF guards through a side door and seated in the dock of Courtroom 3 of the Supreme Court. In their 20s and 30s, they were dressed in sports shirts and slacks, well-groomed, and didn't understand a word of what was going on. They've been sitting in prison, first Ketziot and now Ma'asiyahu, since they crossed the unfenced Egyptian-Israeli border in January and February, seeking the refuge and safety they didn't find in Egypt. Once they crossed the border, they waited for Israeli patrols to pass so they could give themselves up and seek asylum here.
They were picked up, but not allowed to seek asylum. Instead, they are being held in Israel as security prisoners because their native country, Sudan, is an enemy country and recognized supporter of terror. Like the roughly 170 other Sudanese men and teenage boys who, over the last year, have entered Israel from Egypt and immediately turned themselves in, the four are considered "potential security threats" by the Shin Bet, especially because they came through Sinai, where al-Qaida has established itself. However, when asked if there were indications that any of the Sudanese now in Israel had ever been involved in terror or any sort of anti-Israeli activity, Deputy State Attorney Yochi Gneffin, representing the state in the Supreme Court case, replied, "No, we have no such indications."
After three years, an estimated 400,000 murders and 2.5 million people made homeless, the genocide in Darfur - the slaughter of the region's black tribes by racist Arab Janjaweed militias backed by the Sudanese government - may finally be getting more than lip service from the West. Stopping the slaughter has become a cause celebre on foreign college campuses. In the US, American Jewish organizations, especially the American Jewish Committee, have taken a lead role in organizing massive demonstrations and moving public opinion toward international intervention to stop the atrocity, which still claims an estimated 100 lives a day. By the end of 2004, a total of 730,650 escapees from Sudan had been resettled as refugees in more than a dozen foreign countries, mainly in Africa, but also in the US, Canada, the Netherlands, Britain and other nations.
In the face of this, Israel is keeping in prison nearly all of the roughly 175 Sudanese who've crossed its borders. They've been in prison for months, some for nearly a year. On the basis of interviews with about one-third of the men, it appears that most are not from Darfur, says Michael Bavly, representative in Israel of the United Nations High Commissioner for Refugees (UNHCR). "The majority fled Sudan for other reasons," Bavly explains. "There are other wars, including civil wars, going on in other parts of the country besides Darfur. There is also famine. People have somehow gotten it into their heads that Darfur is the only problem in Sudan."
Israeli authorities emphasize that the Sudanese here will by no means be deported to Sudan, nor will they be deported to Egypt unless and until Egypt pledges not to send them back to Sudan - which reportedly has happened, and which can be deadly. At the same time, though, Israel has no plans to give any of these men and boys asylum - because they are from an enemy country. (By contrast, some 900 foreigners from countries that are not enemies of Israel, primarily war-torn African nations like Congo, Liberia and Ivory Coast, have been granted refugee status by Israel and are living here, mainly in southern Tel Aviv.) The UNHCR is trying to arrange for the Sudanese here to find other safe countries that will take them in, says Bavly.
While Israel has clear, legitimate security concerns about terror originating from Sudan, the same can be said for other countries that are now hosting Sudanese as refugees, not as prisoners. By incarcerating these men as enemy infiltrators without any evidence against them, Israel opens itself to the accusation of giving flagrantly callous treatment to scores of victims of crimes against humanity, including genocide. In a statement on behalf of the Sudanese at the Supreme Court, Prof. Yehuda Bauer, academic adviser to Yad Vashem and one of the world's leading Holocaust scholars, urged Israel to grant asylum to all 175 or so Sudanese in this country.
Noting that Israel took in Vietnamese boat people in the '70s and Bosnian Muslim refugees in the '90s, Bauer wrote, "The Jewish people know what it is to seek refuge. Arriving among them now is a small number of black refugees whose families were murdered because of their race and ethnicity. They ask for asylum. The idea of deporting them is a confused notion - adding exile to exile would be an immoral act standing in stark contradiction to the ideals of civilization in general, and of Judaism in particular."
According to attorneys for the four men in court, G., 37, is one such escapee from the Darfur killing fields. He was separated from his wife and eight children when Janjaweed marauders shot him in the leg while attacking and burning down his village. B., 32, likewise escaped his Darfur village while Janjaweed raiders were shooting it up, killing his brother and two sisters in the process. In the three years it took him to reach Egypt, he was arrested and tortured repeatedly by Sudanese authorities. E., 26, is a Christian truck driver who escaped Sudan after police tortured him, accusing him of arming Christian Sudanese rebels. M., 21, escaped Sudan after being tortured and threatened with death for refusing to join the army, which years before had murdered his parents after his brothers had also refused conscription, fearing that they would be sent to fight their relatives in one of Sudan's domestic wars. (The men's names are not published so as not to endanger their surviving family members in Sudan, or themselves if they ever return.)
The four men represent some 50 Sudanese men who have been held in Israeli prison from as early as January under administrative detention - as violators of the law against enemy infiltration, which means they can stay in jail indefinitely without having their case heard by a judge or other tribunal. In addition to these 50, there are roughly another 125 Sudanese men and boys who entered Israel from Egypt in the second half of last year, and who were charged with the lesser crime of illegal entry to Israel - a charge often used against illegal foreign workers, although the Sudanese were looking for protection rather than work.
BECAUSE THEY were only charged with illegal entry, those 125 or so Sudanese were allowed to make their case for release in front of a tribunal in Ma'asiyahu prison. Through the intervention of the UNHCR and the Tel Aviv-based Hotline for Migrant Workers, about 20 teenage boys among them were released into the custody of a few kibbutzim including Tse'elim, Mishmar Hasharon and Ein Gedi. The other prisoners - roughly 100 of them - were denied release; they, together with the 50 more recent Sudanese arrivals who are still awaiting a hearing, remain in prison, nearly all in Ma'asiyahu, with a few in Ketziot.
"We're just sitting here in a cell doing nothing. I didn't come here to stay in jail all the time. We need protection," said Y., 31, a farmer from Darfur who saw his sister shot to death in a Janjaweed raid on his village five years ago, and who doesn't know what became of his parents and other siblings. Interviewed by cell phone from Ma'asiyahu, he has been in prison here since he crossed the border from Egypt and waited for Israeli troops to arrest him some 11 months ago.
A., 30, says he saw the Janjaweed shoot his father, uncle and cousin to death three years ago when they destroyed his Darfur village. He escaped to Egypt, later crossing to Israel and giving himself up about 10 months ago, and was placed in Ketziot for two months before being transferred to Ma'asiyahu. By cell phone, he says, "All the time I think about my family, my mother and brothers, whether they're alive or dead. I can't make any connection with them. I have nothing, just my empty hands. I lost everything, and now I'm here in jail and I don't know what's going to happen."
The fate of these two men, however, will not be affected by what was happening in Courtroom 3 of the Supreme Court. The purpose of the petition brought by the 50 more recent arrivals is just to get what long-term Sudanese prisoners like A. and Y. already got, although it did them no good - a hearing so they might present their case for being let out of jail.
"These men are victims of the Sudanese government, yet the state is holding them as if they are enemy agents of that government," Yonatan Berman, attorney for the 50, told the three-judge panel headed by Justice Dorit Beinish.
For the state, Gneffin emphasized that the US has declared Sudan "one of the world's six terror-supporting states," that the Shin Bet is warning that terrorists in Sinai can "exploit" the open border with Egypt by sending its agents through to Israel, and that the state "does not know who these people are or where they came from." Berman countered that even though the US has named Sudan a state supporter of terror, it still has taken in thousands of that country's refugees.
Beinish showed sympathy for the Sudanese, noting that even though they come from an enemy country, "they cannot be treated like others in this category; there must be consideration for the unusual suffering they've endured." She also showed sympathy for the state's security concerns, saying, "This is a very, very complicated matter." In the end, the panel ruled that the state could not hold the Sudanese for so long without hearing their appeal for release from prison, and gave the state 30 days to work out a way to grant them those hearings.
In an interview after the court session, Gneffin said the 50 petitioners will get their hearing for release from jail only after the UNHCR's two field workers now interviewing all the Sudanese prisoners finish their work. "Otherwise we don't know who these people are, where they came from or why," Gneffin said. Completing the interviews will take the UN field workers about another three months, said Bavly.
In the end, it will be up to the interior minister to decide whether to grant asylum to UN-declared refugees. The interior minister acts on advice from a panel made up of representatives of the interior, justice and foreign ministries, which in turn receives recommendations from the UNHCR. "Israel grants asylum to more than 90% of the refugees we recommend," says Sharon Harel, a UNHCR official.
The issue of the Sudanese has been discussed by Israeli government officials recently, and the state's view at present, says Gneffin, is that the roughly 175 Sudanese men and boys here belong either back in Egypt - on condition that they are not deported from there to Sudan - or in another country, but not in this country. "Israel does not take in people from enemy states as refugees," she said.
Even now, Sudanese escapees continue to cross the border from Egypt into Israel and land in jail, charged as enemy infiltrators, says Uri Sadeh, an attorney with the Hotline for Migrant Workers who has interviewed about a dozen of the prisoners. "On average there are a few Sudanese coming over the border a week," he says, noting that they are part of the flow of foreigners from all over the world who cross the 210-kilometer, virtually open Egyptian-Israeli border. The difference, he says, is that the others continue on into Israel, trying to avoid arrest, while the Sudanese innocently await arrest, stationing themselves at a well-lit spot on the patrol road just inside the border. "There was one Sudanese guy arrested [by immigration police] while he was working in Tel Aviv, but I haven't heard of any others [who sought work instead of asylum]," says Sadeh.
The number of Sudanese crossing the border from Egypt rose fairly dramatically in late January, which led Israeli authorities to begin holding them in administrative detention, without hearings, for fear of too many "potential security threats" being released to kibbutzim or other venues, noted Gneffin.
The reason for the rise in border crossings in late January, prisoners say, was because of the lethal crackdown on Sudanese refugees in Cairo a few weeks before. Thousands of Sudanese had camped out for months on the lawn in front of the local UN compound, protesting the endless delays of their requests for refugee status. On December 29, masses of Egyptian police charged into the protest camp, killing at least 27 Sudanese. Some refugees who had seen family members killed by the Janjaweed in Darfur were seeing family members who'd survived that genocide now getting killed by Egyptian police.
The Sudanese who had fled anti-black racism at home found it again in Egypt. After witnessing the murders of a brother and two sisters in his Darfur village, then enduring a three-year ordeal of imprisonment and torture by Sudanese officials, B., 32, made it to Egypt four years ago. In Cairo, according to court documents filed by his attorney, B. "suffered the antagonism of Egyptian society due to his skin color and ethnicity. When out in public, he was frequently arrested. He was insulted by passersby who told him he didn't belong there and should go back where he came from and stop ruining Egypt. He tried to earn a living at a little stall in the souk, but was frequently harassed by security forces who would destroy his stall and scatter his merchandise, telling him he was forbidden to work." B. joined the protest camp outside the UN and was beaten and arrested during the Dec. 29 police raid, then released, then arrested, then released again. Getting the point, he came across the border into Israel on February 12, and has been in prison since.
The roughly 175 Sudanese men and boys in Israeli jails and on kibbutzim do not want to return to Egypt, yet as things stand, many of them might get sent back there. This would seem to make for a particularly cruel irony. Racism, violence, genocide, exile - the traces of Jewish history, ancient and modern, are awfully hard to miss in this bitter tragedy.
Asked for comment following the Supreme Court ruling, the American Jewish Committee, which has been in contact with Israeli officials over this issue, offered the government a friendly word of caution. "We have complete confidence that the humanitarian impulse of Israel, which has been demonstrated in humanitarian crisis after crisis, will prevail and assure the proper treatment of refugees caught in the teeth of the genocidal conflict in Darfur. We are sensitive to the security issues involved in this matter and look to the Israeli government to reconcile those security needs with a humanitarian imperative in providing for these refugees," said Jason Isaacson, the AJC's director of governmental and international affairs.
Yehuda Bauer was more forthright. "To turn away from their request to gain asylum with us will be an act for which our children and grandchildren will curse us," he wrote. "Not to turn away from their request and instead to take them in... will be a source of pride and satisfaction." Y., who is approaching the anniversary of his imprisonment in Israel, said by cell phone from Ma'asiyahu, "All we can do in here is wait."
Countries where Sudanese refugees have resettled
Chad - 224,924
Uganda - 214,673
Ethiopia - 90,451
Kenya - 67,556
Congo - 45,226
Central African Republic - 19,470
United States - 17,994
Australia - 16,365
Egypt - 14,904
Canada - 6,312
Netherlands - 3,618
United Kingdom - 2,426
Unspecified countries - 6,731
(Figures are for end of 2004, taken from United Nations High Commissioner for Refugees' 2006 report, State of the World's Refugees - Displacement in the New Millennium.)