Human Rights Watch and the Hotline for Migrant Workers released a report on Wednesday stating that Israel is threatening detained Eritrean and Sudanese nationals, including asylum seekers, with prolonged detention to pressure them to leave Israel.
The report said that since December 11, 2012, "Israel’s pressure has convinced several hundred detained Sudanese and one Eritrean to leave Israel, and in February 2013, some 50 detained Eritreans agreed under similar pressure to leave for Uganda."
According to the report, all 50 of the detained Eritreans remain in detention.
Human Rights Watch and the Hotline for Migrant Workers said that Sudanese and Eritreans face a real risk of harm if they return to their home countries.
The report said that under Sudanese law, anyone who has visited Israel faces up to 10 years in prison in Sudan and Sudanese officials have said the courts will apply the law.
Next, the report stated that because of "credible persecution fears relating to punishment for evading indefinite military service in Eritrea, 80 percent of Eritrean asylum seekers worldwide are granted some form of protection."
“Israel’s prolonged detention of asylum seekers apparently aims to shatter all hope so they feel they have no real choice but to leave the country,” said Gerry Simpson, senior refugee researcher at Human Rights Watch.
“Instead of browbeating some of the world’s most abused and vulnerable people into giving up their rights and putting themselves at grave risk, Israel should release asylum seekers while their claims are examined and protect anyone found to risk serious harm if returned.”
The report claimed that if Israel returned anyone to a place where the person’s life or freedom would be threatened, "such return would violate international law’s prohibition on refoulement – forced return to a serious risk of persecution."
The scope of the constitutional rights of the migrants and Israel's policy of detaining up to 2000 migrants at Saharonim detention center in the South is currently before the High Court of Justice.
On Tuesday, the High Court issued a conditional order against Israel's policy of detaining certain migrants at Saharonim, demanding that the state explain how the policy does not violate migrants' constitutional rights and international law obligations.
However, conditional orders often do not lead to "victory" on a final ruling and the court gave the state at least until April 30 to respond, signaling that the court does not view the issue as an emergency to the same extent as migrant rights advocates.
Frequently, the court's granting such a long delay also is a signal that the court will approve state policy if some slight changes are made to address some of the objections brought by a petitioner.
NGO Monitor's legal adviser Anne Herzberg criticized the report for failing to "wrestle with some of the complicated, sensitive and important issues" regarding the situation.
She said that "not everyone who comes across the border is defined by international law as a 'refugee'," but said that "Human Rights Watch is not interested in faithfulness to the law."
Part of the basis that advocates of the new detention policy have been pushing is that Israel does not force any migrant to return to their country of origin – arguing that any "returned" migrants are doing so voluntarily.
However, the report said that Israel would also be violating the refoulement prohibition if a person “chose” return after Israeli authorities had threatened prolonged or indefinite detention as the only alternative.
Herzberg said that Israel is not the only country dealing with the complicated question of how many refugees to absorb and how many not to, noting that the US and Europe are dealing with the same problem.
While she recognized that anyone who received the status determination of "refugee" and anyone who would be "persecuted" if they were "returned" cannot be sent back to their country of origin, she said that there is also a large group of migrants who came to Israel merely for economic reasons.
On the other hand, Human Rights Watch noted that there is an extreme lag time in Israel's reviewing migrants status to determine if they are refugees.
In Tuesday's petition before the High Court, the petitioners also argued that a 1954 precedent precluded detaining persons for an extended period who might be deported, but who were awaiting a government decision.
The issue is unlikely to have any decisive change before the High Court rules, possibly in the late spring or in the summer.