On August 23, a group of Africans, caked with dust, quietly crossed Israel's southern border with Egypt after an arduous trek through the Sinai desert. Within minutes they were detained by Israeli soldiers and, after a brief interrogation - which, in violation of standing orders, was not properly recorded - they were handcuffed, blindfolded and handed back to Egyptian officers at a prearranged border crossing point.

The scenario was repeated on August 26, 27 and 29. In all, 91 asylum seekers, mainly from Sudan and Eritrea, were sent back to Egypt during the last week in August under a policy the Israeli government calls "immediate coordinated return."

Word of the revival of what they call "hot return" - which had been the practice in mid-2007, but was dropped in the wake of legal action and reports of harsh treatment of returnees on the Egyptian side of the border - quickly got to human rights groups who hurried back to the Supreme Court. This time it refused to order a stop to the policy, but is holding hearings and is expected to hand down a ruling by the end of the year. Meanwhile, the hot returns continue along the sector of the border patrolled by the IDF's Edom Division under Brig. Gen. Yoel Strick, and asylum seekers continue to enter the country in large numbers through other less scrutinized sectors.

The hot-return policy is a hard-line response to the huge dilemma Israel faces with regard to rising numbers of African asylum seekers coming into the country. On the one hand, it is aware of the need for compliance with international law and the high humanitarian standards it would like to uphold. Indeed, some argue Israel has a special responsibility for refugees, given the bitter vagaries of the Jewish experience. Others retort that if the state is too open, free and compassionate, it will be flooded by hordes of African asylum seekers, impinging on its Jewish character.

Israelis opposed to the hot-return policy argue that summarily dispatching Sudanese and Eritrean asylum seekers back across the border puts their lives at risk. Their concerns were echoed in a statement issued in early September by Amnesty International: "Asylum seekers and migrants who are forcibly returned from Israel to Egypt are in danger of being detained incommunicado and then being forcibly returned to countries such as Eritrea and Sudan where they are at risk of further human rights violations."

Amnesty called for "urgent action" to get the government to stop the practice, which, it said, was in clear violation of the 1951 Convention on Refugees to which Israel had been an early signatory. According to the convention, all asylum seekers are entitled to a fair hearing on whether they face genuine peril, and none should be put back in jeopardy.

In their petition to the Supreme Court following the August hot returns, human rights groups, led by the Tel Aviv-based Hotline for Migrant Workers and the Refugee Rights Clinic at Tel Aviv University, demanded an end to the practice, on the grounds that young inexperienced soldiers are incapable of determining in a brief interview who is or isn't a genuine asylum seeker, and that Egypt, where refugees from Africa have been incarcerated, beaten, killed, or deported to their war-torn and repressive countries, is a very dangerous place for the returnees. (See "The Desperation of the Border Jumpers," page 17.)

Up until 2006, only about 50 asylum seekers a year reached Israel. Then with the intensification of the Darfur genocide and internecine fighting in south Sudan, Eritrea, Congo and the Ivory Coast, a huge influx began, mainly through Egypt, climbing at peak periods to as many as 50 a day. From negligible numbers three years ago, there are now an estimated 13,000 asylum seekers in the country (about 8,000 in almost equal numbers from Eritrea and Sudan, and 5,000 from the rest of the world).
In June 2007, in an effort to stem the flow of refugees, Prime Minister Ehud Olmert requested and received verbal assurances from Egypt's President Hosni Mubarak that no harm would come to asylum seekers turned back by Israel at the border. In early July, the government approved the "immediate coordinated return" policy, and on August 10, 48 Sudanese asylum seekers were handed back to the Egyptians shortly after crossing the border.

The government said then that it would grant temporary residency to about 500 Darfurians already in the country, but no more would be allowed in. Following a petition by human rights groups, the Supreme Court ordered the state to come up with a procedure to differentiate at the border between genuine asylum seekers, who should be allowed in, and people simply seeking to improve their economic situation, who could legally be turned back.

In December, the state presented its return procedure, which the court accepted, but in another hearing just two months later, state attorneys acknowledged that the Olmert-Mubarak understandings had collapsed: Of the 48 asylum seekers sent back in August 2007, 20 had been deported to Sudan and 28 were still unaccounted for. The government declared that until it received adequate assurances regarding the safety of returnees, there would be no more "coordinated returns."

But the government did not give up the idea completely, and this summer, after the institution of new tighter procedures for coordination with the Egyptian army, the hot returns resumed and Israeli human rights groups took the government back to court. In an early October hearing before Supreme Court President Dorit Beinisch and Justices Ayala Procaccia and Hanan Meltzer, the petitioners argued that Israel should first get a detailed written commitment from Egypt to the effect that every person it returns will have access to appropriate asylum procedures, as well as protection of life and liberty.

"We came armed with reports by Amnesty International and Human Rights Watch showing that Egypt has become even more unsafe, mainly because people are now being forcibly repatriated. We asked, given this situation, how can Israel even consider returning refugees, when it knows they could be sent back to their home countries and possible death?" lawyer Anat Ben-Dor of the Refugee Rights Clinic tells The Report.

The state, however, argued that what the human rights organizations had to say about conditions in Egypt was irrelevant. Yochi Ganessin, the attorney for the state, maintained that there was only one opinion that mattered, that of the U.N. High Commission for Refugees (UNHCR). It had a large office in Egypt and it had never said Egypt was unsafe, she declared. Moreover, she argued, it was totally inappropriate for an Israeli court to imply that Egypt stands in violation of the Convention on Refugees; any attempt to do so, she warned, could have serious diplomatic fallout.

On the border procedure, Ganessin said that some soldiers had been sent on courses held by the IDF's international law department and that more were planned. She also claimed that the standing orders had been significantly sharpened and widely distributed, adding that the immediate coordinated returns were restricted to only one sector of the border, and that for every potential asylum seeker being sent back, ten were getting through.

The state also submitted an affidavit by Brig. Gen. Strick, the commander of that sector, in which he acknowledges that the four returns in August 2008 were not carried out according to procedure, but says the soldiers have all since been fully briefed on what they should do in future: Asylum seekers must be interrogated according to a set questionnaire within three hours of capture in the case of individuals and six hours in the case of large groups, and the sessions must be recorded. They must be asked if they have anything to add, and if, at any stage, they claim they would be in danger if returned to Egypt or their country of origin, their cases must be referred to the southern command's legal adviser before any coordinated return is carried out.

Ben-Dor was not impressed. She argues that the border procedure remains totally inadequate; that it is arbitrary and unjust to apply the procedure in only one sector; that local agreements with Egyptian officers not in a position to give any credible assurances on how returnees are likely to be treated after they release them are worthless; and, most importantly, that it is disingenuous to use UNHCR's silence to imply that Egypt is a safe place for refugees, when the U.N. body, as a matter of principle, is most unlikely to criticize the practices of a host country for fear of being expelled and putting refugees there further at risk.

UNHCR's Israel branch tends to back Ben-Dor's position: "The Israeli government should make its own efforts to determine the situation there, and we are certainly not the only body that can determine whether or not Egypt is safe," Mike Alford, the chief liaison officer, tells The Report. Alford says the legality of turning people back at the border is not in question: Countries do have the right to refuse people entry. The issue, he says, is whether the asylum seekers are given a fair hearing at the border.

The state will submit its concluding arguments to the Supreme Court in mid-November, and the petitioners will then have two weeks to respond. Ben-Dor is not optimistic. "The justices didn't even ask the state to show what agreement it has with Egypt, or what precise assurances it has received," she says, adding that the court is unlikely to pass a judgment embarrassing to Egypt.

The government, so far, remains unperturbed by the international and local criticism of the latest hot returns. The Prime Minister's spokesman Mark Regev says most asylum seekers are still being allowed in and given a fair hearing on their status. "We use the U.N. criteria to establish whether people are legitimate refugees or not," he says, adding that the government has made a decision to grant asylum seekers from Darfur special status: 450 Darfurians have already been granted the right to stay in Israel permanently, and 150 more are about to be.

But, says Regev, a small country like Israel cannot be expected to solve the huge Darfur refugee problem on its own. "Darfur is a global problem and requires a global solution. We are willing to play our part. We are willing to take in 600 on a permanent basis and the others living here now will not be sent back, but we are urging other members of the international community to help us deal with the problem," he declares.

The procedure by which asylum seekers obtain refugee status, which enables them to stay in Israel permanently, is run mainly by the Israeli branch of UNHCR. Applicants are interviewed for up to six hours to determine whether the fear of persecution on return to their home countries is well-founded. UNHCR's recommendation then goes to a committee made up of officials from the justice, foreign and interior ministries, and headed by an independent jurist. This committee, known as the National Status Granting Body (NSGB), then makes its recommendation to the interior minister for final approval.

In practice, UNHCR recommendations are almost always endorsed. But there is a snag - the NSGB seldom meets. Alford, temporarily in charge of UNHCR's enlarged (because of the surge of refugees) Tel Aviv office, speaks of a bottleneck effect: "There are people we interview from some places in Africa of whom we recommend only one or two percent for refugee status. But if we don't process them quickly, it doesn't help anybody. It certainly doesn't help genuine refugees, because one of the most important things for the genuine refugee is to determine who is not a refugee," he tells The Report.

The Israeli government, however, is in no hurry to accelerate the process. Instead, it has devised a new category called "temporary protection," which it confers automatically on Sudanese and Eritrean asylum seekers. This means that although they do not have refugee status, they can work and won't be jailed or deported. The idea is that when things in the home countries improve, the asylum seekers will be able to go back, without having been officially declared refugees, with all the rights that entails - including the choice of permanent residency in Israel.

Advocacy groups complain that this leaves the asylum seekers unsure of their future and very often restricted to working only in the north or south of the country and prohibited from working in the Tel Aviv metropolitan area. "The Sudanese and Eritreans are in legal limbo and really don't know what might happen to them from one day to the next," says Ben-Dor.

Besides the legal issues pertaining to their presence in Israel, the asylum seekers face enormous social problems with regard to housing, health, education and welfare. Alford says there are two sides to refugee care - protection of life and liberty, on which the Israeli government is doing a good job, and social assistance, where it does very little. "For example, there are 50 people sleeping in Levinsky Park in south Tel Aviv on any given night. That shouldn't happen. The social side is being handled in an ad hoc way, mostly by NGOs, because the government hasn't really come to grips with it," he says.

To better their situation, some of the asylum seekers have formed their own advocacy groups. Mohiedin Abdullah Bakini, 28, a leading member of the recently established South Sudanese Council, says the government should be doing much more to help asylum seekers acquire an education and skills. A graduate of Juba University in southern Sudan and the American University in Cairo, Bakini, long wanted by the Khartoum authorities, ran a school for Sudanese refugees in Egypt before things there got too hot and he was forced to flee to Israel.

His wife and two daughters tried to follow last February, but, after crossing the Sinai, were intercepted and arrested by Egyptian border guards. "They are still in jail and I don't know whether they will be able to come to Israel, or whether I might be able to go back to join them in Egypt or somewhere else. Now I am just taking things one step at a time, waiting for them to be released," he tells The Report in impeccable English.

Now that Israel has resumed its policy of hot returns, he says, it would be futile for them to try crossing the desert again if and when they are released, and he dismisses reports that Israeli soldiers at the border are allowing people with family in Israel to cross. "I have a friend here whose wife and children were arrested by Israeli border guards and sent back to Egypt," he says.

Bakini, who teaches English to South Sudanese asylum seekers in Tel Aviv and Kiryat Malakhi and works as a stagehand all over the country, says most of the South Sudanese asylum seekers are totally confused about their status in Israel. "Every day they come up with a new law. We don't know where we stand. I used to be able to work anywhere, including in Tel Aviv. Now, when I renew my visa, I can only work in the north or the south of the country," he complains.

He says most of the Sudanese don't want to stay in Israel permanently, but simply to make the best use of their time here. "A small number would like to stay and others to migrate to some other country, but the vast majority want to go back to help with the rebuilding of Sudan as soon it becomes possible," he says. "There is already a voluntary repatriation program initiated by the International Christian Embassy and some people, especially single mothers who have been having a hard time here, are going back."

The Jerusalem-based Christian Embassy has been one of the most active local organizations dealing with the everyday problems faced by the mostly Muslim asylum seekers. In 2006, when the army dumped asylum seekers in the streets of Beersheba because there was no more room in the Ketziot detention facility near the border with Egypt, where up to 1,000 asylum seekers are temporarily held, the Embassy helped relocate and house them in Jerusalem. It has also helped get people out of Ketziot, rejoin families that have been separated and find apartments for families whose children need wheelchair access.

Charmaine Hedding, the driving force behind the embassy's work with the asylum seekers, especially the South Sudanese who, in many cases, have come as families, relates how she went to the Knesset and buttonholed Knesset members to get 18 children under the age of 10 inoculated. "These are the kinds of issues that arise, and it's all got to do with the state understanding what its role should be," she tells The Report.

One of the problems the South African-born Hedding is now grappling with is the fact that teenage children of South Sudanese asylum seekers are not getting an education. "The state only provides primary education for them, so you have children who are too young to work and should be in school just wandering around on the streets," she complains.

Instead of looking at the asylum seekers as a potential drain on resources, Hedding says Israel has a great opportunity to help them make a quantum leap forward. "I think in terms of tikkun olam [the Jewish concept of improving the world], and there is an opportunity here to make a huge impact. It just depends what we make of it, each of us as individuals and as a community," she says.

But what about the argument made by some Israelis that if Israel were to become known as a safe haven, with attractive educational and economic vistas, hundreds of thousands, perhaps even millions, of refugees would come knocking at its door?

"I have heard that argument a lot. And I think that's precisely why Israel has to have a process that determines quickly who is and who isn't a refugee, and strictly control the influx the way other countries do," she insists.

Ben-Dor agrees. "The Israeli response is all wrong," she contends. "When Israel saw the threat of thousands streaming in, it balked at the Refugee Convention, did things that legally it shouldn't, and put lives at risk. The rise in numbers started in 2006, and instead of dealing with it intelligently, first they put everyone in jail, then they came up with hot returns, and the one thing they didn't do was to set up a quick, just and efficient asylum mechanism, allowing only genuine asylum seekers to stay. That would be part of the solution, not, as the government fears, part of the problem."