KIBBUTZ KETURA, Israel (JTA) — With two miles of bare footprints behind them, Ahmed and Fatima, and their three children, approached the border with Israel in the middle of a cold winter night. Snow was falling in the Sinai.
Avoid the Egyptian military patrols, they were warned by their Bedouin smugglers, whom they paid with money borrowed from Sudanese friends.
“If they catch you, you could be shot or deported back to Sudan,” the Bedouins said.
The 12-hour trip from Cairo was the last leg of a multi-year journey stretching from the violence of Darfur to Sudan’s dangerous capital, Khartoum, to the teeming streets of Cairo. Ahmed had been imprisoned in each city.
Israel was their last hope for what Fatima calls “a normal life” without the “fear of being sent back to Sudan.”
Two hours after dusting the sand off their dark clothing from crawling under two security fences, their 5-month-old baby’s cry pierced the silence of the frigid Negev air.
The response was an Israeli military spotlight.
“Do you know where you are?” the soldiers called out in Arabic.
“Yes,” they answered.
“Why are you here?”
“Because we were mistreated in Egypt.”
“Who are you?”
“We are Sudanese.”
Ahmed lowered his 2-year-old son from his shoulders and held up his Sudanese passport, as well as the worn yellow card from the United Nations High Commissioner for Refugees, or UNHCR. The card had been obtained in Cairo and saved them from being deported back to Sudan, as the Egyptian police had threatened.
The Israeli soldiers gave the children their green military coats.
“We were afraid of the Egyptian army, not of the Israeli army,” Ahmed recalled later.
In an often-reluctant ritual that has been repeated almost weekly for two years with Sudanese sneaking into Israel, Israel Defense Forces patrols gathered up the tired refugee family, placed them in an ambulance and handed them over to the Border Police.
The Border Police sent Ahmed to Ketziot prison for violating the Infiltration Law, a 1954 statute enacted against enemy combatants.
If the experience of others before him is any precedent, Ahmed could remain incarcerated for at least a year, until Israel figures out what to do with him and the more than 120 other imprisoned Sudanese.
Fatima and the children were sent to a battered women’s shelter in the western Galilee that has largely been taken over by Sudanese refugees whose husbands are in prison.
The failure of the United Nations to cope with the doubling of refugee applications in the past decade or to intervene to prevent the genocide in Darfur has had ripple effects throughout the world.
That now includes Israel and the Jewish world.
Faced with genocidal threats from Iran and terrorist groups, a legacy of the Holocaust, and even echoes of the Exodus 3,700 years ago, Israel is torn between its commitment to universal humanitarian concerns and its own security interests.
A four-month JTA investigation into the plight of the refugees and the Israeli government’s handling of the situation found a system that even the top Israeli official adjudicating each of the cases has said often violates Israeli and international law.
After two years of legal challenges and growing Israeli media attention, the issue now is coming to a critical juncture.
The practice of arresting and indefinitely detaining Sudanese asylum seekers on security grounds is being tested in the courts even as Israeli Border Police are showing signs of resisting the orders to arrest and detain the refugees crossing the borders.
Major international human rights figures have embraced the cause, and a handful of Knesset members and activists in Israel are pressing for a resolution of the crisis. Some of these activists in turn have strong ties to the American Jewish community, which has embraced the cause of Darfur as a top humanitarian priority.
Some 200,000 to 400,000 people have been killed in the Darfur region of western Sudan. Another 2.5 million have been displaced.
Israel’s quandary is a difficult one.
“Sudanese refugees are right now considered enemy nationals, since Sudan is an Islamic fundamentalist country,” explained Anat Ben Dor, the country’s leading refugee rights lawyer, who has emerged as a top advocate for the Sudanese refugees. “Yet Israel is a signatory to the International Convention on Refugees, which guarantees humane treatment and a safe haven from genocide.”
Ben Dor, 40, directs the Tel Aviv University Law School Refugee Rights Clinic and in late February filed suit against the government for its alleged treatment of three refugees.
Israel helped author the convention in the aftermath of World War II. Jewish refugees fleeing Nazi Germany were routinely refused safe haven because they, like the current Sudanese, were classified as enemy nationals.
Activists enjoyed a small victory March 21 when Israel’s Supreme Court gave the state 45 days to determine whether the detainees were getting a fair and proper judicial review.
“Bringing justice is the issue here,” said Supreme Court Chief Justice Dorit Beinisch, who is presiding over a three-judge panel hearing the case.
“This is very significant,” said Ben Dor, who with the Hotline for Migrant Workers, filed the appeal to the court arguing that those Sudanese arrested and put in jail for illegally entering the country should not be charged as infiltrators of an enemy state.
The petition against Israel’s defense and interior ministers argues that even though 150 Sudanese have been released into alternative detention, the lack of formal judicial review makes the detention illegal.
Under Israeli law, other nationals who sneak through the Sinai desert into Israel are charged with the Law of Entry. In those cases, the government must review their cases every 30 days and justify their imprisonment. But since Sudanese are considered “enemy nationals,” they are charged under the harsher Infiltration Law, which has no official review mechanism and by which detainees can be held indefinitely.
Irwin Cotler, Canada’s former minister of justice and human rights attorney to such well-known dissidents as Natan Sharansky and Nelson Mandela, has joined with the Israel Bar Association in filing supporting documents on behalf of the Sudanese to the Israeli High Court.
“Israel should be more part of the international struggle against genocide in Darfur,” Cotler said. “If Israel grants refugee status or temporary resident status to the Sudanese, it can be Israel’s own modest contribution to speaking up against the genocide rather than interring them and making the opposite statement.”
Although the numbers are fluid, an estimated 300 Sudanese have arrived in Israel over the past two years. Of these, some 120 remain in prison; the rest are in alternative detention, meaning crisis centers, kibbutzim or moshavim, where many of them work and live but are not free to leave the premises.
Another estimated dozen or so Sudanese men in the Sinai are partnered with Israeli women and have children, but cannot enter Israel for fear of arrest.
Sigal Rozen, 39, co-founded the Hotline for Migrant Workers with a grant from the New Israel Fund. Her tiny fourth-floor offices next door to a Tel Aviv police station are a hot spot for undocumented workers of all colors and nationalities who come knocking for assistance.
The hotline brings them to the U.N. High Commissioner on Refugees offices to get protection papers, documents that verify their refugee status, so they can qualify for a temporary work visa.
“There are people from all over the world who come to Israel,” Rozen said. “If a Turk and a Chinese come across the border with a Sudanese, only the Sudanese is imprisoned. That is discrimination.”
Israeli government officials say the situation is a difficult one.
“The Israeli government is endeavoring to deal with this issue as humanely as possible,” said Mark Regev, a spokesman for the Foreign Ministry. “Jewish history has made us especially sensitive to genocide. No one is being sent back to the inferno in Darfur.”
At the same time, he said, “we have to take precautions” to minimize the security risk given where the refugees come from.
In the March 21 court case, state attorneys argued that the system was working and there was no need to change the legalities under which the Sudanese are being held.
Some officials, in private conversations and in Knesset testimony, contend that beyond the immediate security concerns about individual Sudanese, the greater fear is the ripple effect of even more refugees seeking asylum in the Jewish State.
The fault lines drawn around the refugee battle between those advocating deportation and those advocating granting asylum is “a paradox,” as one high-ranking Jewish organizational official called it.
“Israel is deeply sensitive to the issue of genocide,” this official said, “but it is also worried about a massive influx of Sudanese at its border.”
The prevailing government preference is to deport the refugees back to Egypt — if Egypt will guarantee it will not deport them back to Sudan.
“The natural and correct solution is a return to Egypt,” Eliyahu Aharoni, deputy director of the Immigration Police, testified to the Knesset in late December.
“Sudan is one of six nations that supports Islamic terror,” he said. “All the security services say that there is a danger when it comes to the Sudanese. Detention or alternative detention is legitimate in a democratic country and also in the State of Israel.”
Debate is being waged about how many Sudanese would seek refuge here if the detainees are released from prison and accorded good treatment in the Jewish State.
“What we do here will determine if three million will come” from Egypt or will stay there, said Yossi Edelshtein, director of the Enforcement Unit of the Immigration Police.
The three million figure is often cited by Israeli policy makers, particularly in the security services. But others dispute those figures.
“Anyone who talks about millions of Sudanese coming to Israel is scare-mongering,” said Michael Kagan, an American human rights lawyer who has worked in Israel and Egypt. “No one even knows that there are millions of Sudanese in Egypt; some estimate there are only a few hundred thousand.
“But in any case, we’re not talking about all Sudanese. We’re talking about refugees,” he said. “The U.N. says there are only 15,000 Sudanese refugees in Egypt, and of these, how many are going to pay big money, risk their lives and risk arrest to go over the desert to Israel?”
As to the porous border with Egypt, it is not the Sudanese that Israel most worries about but militants like Muhammed Faisal Saksak. On Jan. 29, the 21-year-old Palestinian crossed the border about 12 miles north of the resort city of Eilat and blew himself up in a small bakery, killing three.
In either a slip of the tongue or a calculated leak to remind the Knesset of the potential security risks of too liberal an asylum policy, Aharoni of the Immigration Police revealed to legislators in his Knesset testimony that “it appears that one Sudanese refugee belonging to al-Qaida was released.”
Half a dozen ministries, including the Prime Minister’s office, would not respond to queries about the link.
Daniel Ben-Zaken, the director of Ketziot prison, which is holding many of the detainees, told JTA: “We asked and we received no information about anyone connected to anything like that.”
In 2005, the security forces caught 5,600 people trying to infiltrate across the Egyptian-Israeli border, including drug and weapon smugglers, women destined for prostitution, foreign workers and refugees.
In 2006, 100 of those caught trying to infiltrate belonged to terror organizations, according to Israeli media reports. That same year, the U.N. High Commissioner for Refugees in Israel saw an increase in its case load, with 1,600 applying for refugee or asylum status, up from 1,000 in 2005.
Most of the increase was from foreign workers who did not want to return to their native lands, often because of wars in the Congo, Sierra Leone, the Ivory Coast and other African countries.
The number of Sudanese seeking protection in Israel started to increase after Egyptian police killed 27 and injured several hundred Sudanese refugees protesting outside the UNHCR office in Cairo at the end of December 2005.
None of the Sudanese who have crossed into Israel in the past 18 months has been granted asylum or temporary refugee status, according to Michael Bavli, head of the UNHCR office in Israel.
This contrasts with the some 200 asylum seekers from many countries, including some Sudanese, who had been granted permanent asylum in Israel between 1985 and 2005. An additional 700 non-Sudanese refugees were granted temporary asylum during that time.
With each new arrival stretching an embryonic asylum system of the state, the issue of the Sudanese has been coming to a boil.
A Knesset lobby headed by Labor Party member Avishai Braverman and Likud member Gilad Erdan formed last November to “push for the release of all the prisoners who have sought asylum in Israel,” said the lobby spokesman Yehuda Minkovitz.
Its focus is having the prisoners released and then advocating for at least some being granted permanent asylum status in Israel.
“I am ashamed as a person and as a Jew,” Braverman told JTA, referring to the practice of imprisoning asylum seekers. “We of all people have to know how to behave.”
The Knesset Committee on Foreign Workers held a Christmas Day hearing on the issue under the chairmanship of Ron Cohen of the left-leaning party, Meretz.
Two days later, Israeli Foreign Minister Tzipi Livni sat across the table from Egyptian Foreign Minister Ahmed Aboul Gheit at the Foreign Ministry in Jerusalem, and asked her counterpart if Egypt would consider taking back some of the refugees, according to a senior Foreign Ministry source who asked not to be identified.
Livni wanted to know if Egypt would consider a “hot return” policy, which would mean an immediate return into the Sinai of the refugees at the time they are picked up by the IDF on the border. She also explored the possibility of an organized return to Egypt of all the Sudanese refugees who carry U.N. blue cards, meaning they were recognized as refugees in Cairo and are eligible for third-country resettlement from Egypt.
The Egyptian Embassy declined to comment on the exchange.
Just as the Egyptian foreign minister was returning to Cairo with the Israeli request to help them facilitate hot returns, Ahmed and Fatima packed two small bags and quietly left the Egyptian capital, beginning their journey to cross illegally into Israel.
Three days later, when Fatima arrived at the shelter in Israel’s north, she was greeted with media reports that Israel was considering deporting her and her family back to Egypt. She quickly dictated an impassioned letter in Arabic, which was translated into Hebrew by a Druze linguist, and it was sent to the Knesset lobby, which sent a direct appeal to Defense Minister Amir Peretz.
In her letter, Fatima briefly recounted her family’s flight.
“I beg you not to let them send us away from here… I know that if they send us back to Egypt, we’ll go to prison and perhaps never get out,” she wrote. “We could also be sent to the Sudanese Embassy, and from there back to Sudan, and that will be the end of us. We’ll die like all the others who have died there.”
Peretz’s office has not responded to requests for an interview.
Yosef Israel Abramowitz is an award-winning journalist and founder of socialaction.com. Read his daily blogs at peoplehood.org. JTA correspondent Dina Kraft in Israel contributed to this piece. The names of the refugees have been changed to protect from reprisals against family members in Arab countries.