Call to Order / Jail Is No Place for a Child

African refugees continue to languish in local prisons despite several suggestions for relocating them to a more appropriate environment. The state is reneging on its commitments.

Four years ago in Darfur, Janjaweed militias burned down the village where E.M., 20, lived. She fled with her husband to Egypt, and about a month ago, she slipped into Israel with him and their one-year-old daughter. They have been detained at Ketziot prison ever since. Last Monday, after spending three weeks behind bars, E.M. met with adjudicator Elad Azar, who was appointed by former defense minister Amir Peretz to examine the detention of infiltrators and submit recommendations.

Azar's recommendation regarding the families of E.M. and other refugees puts the entire plan of concentrating them at Ketziot in question. "Returning them to Egypt or to a third country does not appear to be in the offing," noted Azar. "Furthermore, this woman and her husband are recognized as Darfur refugees and presumably will not be returned to Egypt. I therefore see no option but to release them. This should be done within seven days, on condition that an appropriate alternative be found for them [a place of work will accept them - S.I.]".

Azar stresses that "the prison authorities have made a concerted effort to make the stay of the illegal immigrants easier, including [providing] toys, a children's playroom and a special staff that has undergone social training and arranges activities for the children."

Still, Azar is convinced that it is better for young children not to be in jail. In light of this, he offered a similar opinion on A.M., also from Darfur, who is living in Ketziot with two children, ages 4 and 7; and Z.H., who is there with her husband and three small children. "In the long run, it is clear that the good of the children requires their release," wrote Azar, who visited Ketziot twice last week, and has so far examined 28 cases.

The total refugee population at Ketziot, however, numbers 110 Sudanese women and children, and another 350 men from Sudan, Ivory Coast and Eritrea. Many more refugees are being held at various other detention facilities. The overwhelming majority are being detained under the Prevention of Infiltration Law - an emergency measure enacted in 1954. The High Court of Justice is currently deliberating a few petitions calling for the law to be rescinded, among other reasons because it allows the state to detain people for long periods of time without judicial review.

In August 2006 the state promised the High Court that anyone arrested under that law would be brought before Azar within 14 days, in his capacity as "adviser to the defense minister." That commitment, however, was made long before the current tidal wave of refugees. When representatives of the Hotline for Migrant Workers and the Refugee Rights Program at Tel Aviv University visited Ketziot and Ramon prisons, they found that most of the detainees had not been brought before Azar, despite the fact that they had been held for over 14 days. Thus, the organizations claim, the state has violated its commitment to the High Court on a large scale.

The two organizations further contend that, to the best of their knowledge, no one detained under the Prevention of Infiltration Law has ever been brought before Azar within 14 days of his arrest. It is important to note, they said, that even 14 days is a long time, especially when someone is incarcerated.

About a month ago Prime Minister Ehud Olmert announced the government's intention to return all the refugees to Egypt. A decision was made to set up a camp, to which all the refugees would be brought and where they would be screened ahead of their deportation. To this day, however, the camp has not been established and not even one refugee has been returned to Egypt. They are still being held in prisons and various detention facilities, mainly Ketziot.

In the meantime, the remand of the refugees in Ketziot and other jails is also being challenged by a series of petitions to the High Court. Attorneys Yonatan Berman, from the Hotline for Migrant Workers, and Anat Ben-Dor, of the Refugee Rights Program, last week filed three petitions demanding that the refugees be released. The petitions will be heard this week.

Ostensibly, the refugees with the strongest case are those who came from Darfur, as Israel has promised to grant at least some of them refuge and legal status. It turns out, however, that refugees who did not come from Darfur also have some legal advantages. Sudan is considered an enemy country; Ivory Coast and Eritrea are not. In May 2005 the state made a commitment to the High Court not to arrest subjects of non-enemy countries under the Prevention of Infiltration Law, but instead to detain them under the Entry into Israel Law, which requires much broader judicial review. In practice, claim Berman and Ben-Dor, "many dozens of detainees from countries not defined as 'enemy states' are being held under warrants based on the Prevention of Infiltration Law." This is in gross and ongoing violation of the state's commitment to the High Court.

One petition was filed on behalf of a 32-year-old woman born in Asmara, Eritrea. She was forcefully recruited to the country's army for an undetermined period of time and served for 11 years. All her requests to be discharged so that she could marry and have a family were denied. Eventually, she deserted and fled her country. She claims that if she is returned to Eritrea, her life will be in danger. The two organizations are requesting that she be released from the detainees' camp for three reasons: Eritrea is not an enemy country, therefore there was no reason to arrest her under the Prevention of Infiltration Law; she was not brought before an adjudicator within 14 days of her arrest; and there is no real possibility of deporting her.

Another petition was filed for the release of a Darfur refugee being held in Ramon prison. The refugee is asking, among other things, for an interim injunction against his deportation to Egypt, on the grounds that there, too, and not just in Sudan, his life will be in danger. In the petition he relates that he fled his village in Darfur after the Janjaweed attacked and killed his brothers and sister. He reached Khartoum, the Sudanese capital, but was arrested there seven times within a single month, on suspicion of membership in rebel organizations. He was tortured every time he was detained, so he fled to Egypt. He claims that he was repeatedly arrested and beaten there, too. Berman and Ben-Dor argue that there is no possibility of expelling this man to either Egypt or Sudan, so he should be released.

During the 60 years since Israel's establishment, no comprehensive immigration policy has ever been legislated. Over two years ago, then interior minister Ophir Pines-Paz appointed a committee headed by Prof. Amnon Rubinstein to determine such a policy. The committee submitted its interim report, which was never implemented, nor was it asked to continue its work or compile a final report. Under such circumstances, it is only natural for third-sector organizations to step into the policy vacuum.

Yesterday, for example, the Israel Religious Action Center, which is actually the Reform movement's lobby in Israel, published a proposal for immigration policy. The most interesting item in the proposal is the suggestion to examine the possibility of not granting immediate citizenship to new immigrants, but rather only residency. Citizenship will be granted to immigrants only after they prove their settlement in Israel and a certain command of Hebrew. The document entitled "Israel's Immigration Policy," composed by attorney Nicole Maor, states that such an approach will reduce the discrimination created by the Law of Return, and will make the abuse of that law more difficult.

The most prevalent proposal for amending the Law of Return is the cancelation of the "grandchild clause" - such that the right to immigrate to Israel will be granted to the children of Jews, but not to their grandchildren. The Israel Religious Action Center objects to any restriction to the right of return, including the cancelation of the grandchild clause, which could harm members of Reform communities abroad. Still, even the center's staff knows that the proposal enjoys broad support among politicians. The Reform representatives are therefore demanding that if the grandchild clause is canceled, a Jewish affiliation clause should be added. Such an addition would grant the right of return to "those recognized as Jewish by a Jewish community recognized in Israel or the Diaspora, or someone who has a proven affinity to such a community."

Maor's report sums up 15 years of defending the rights of "victims" of the Population Administration. She explains that the report concludes that the system dealing with citizenship does not function properly, and that without a revolution, Israel will continue to violate the basic civil rights of both Jewish and non-Jewish immigrants. The report recommends making many amendments to the legislation, but Maor says the main priority is to increase the number of workers of, and the funding allocated to, the Population Administration. "Otherwise," says Maor, "everything will remain suspended in mid-air."

Maor says she feels it is not by accident that additional workers have not been allocated to the administration so it can cope with the wave of immigrants. According to her, this seems to be Israel's way of blocking the gates to immigration with bureaucratic hurdles.

Other proposals included in the Israel Religious Action Center's booklet on Israel's immigration policy:

b The right of children of those eligible under the Law of Return (the great-grandchildren of Jews) to receive citizenship should be anchored in the law;

b Foreign workers who have made a special contribution to the state should be allowed to remain in Israel for up to 10 years, not up to five years, as is the current practice. After this period they should be granted permanent residency. Today the only way for a foreign worker to receive citizenship or residency in Israel is if he/she is sharing his/her life with an Israeli partner;

b The authority to cancel citizenship - currently in the hands of the interior minister - should be transferred to the court. A statute of limitations of seven years should be set for the offense of obtaining citizenship fraudulently. After that period, it will be impossible to annul citizenship, even if it was obtained fraudulently.