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8/12/2019 African Human Rights Complaint Against Egypt Re Rafah Closing
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8/12/2019 African Human Rights Complaint Against Egypt Re Rafah Closing
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A
THE COMPLAINANTS
1. The First Complainant is the Palestine Solidarity Association (PSA), a
voluntary body based in Johannesburg South Africa with
locus st ndi
to sue
and be sued.
2. The PSA
is
at the forefront of the solidarity effort
on
the issue of Palestine
and has organised numerous legal and lawful protests in South Africa to
educate both the
~ o v r n m n t
and the public
on
the plight of Palestine and
its 11 million stateless people.
3. After Operation Cast Lead in 2006 the applicant, together with another
South African NGO, launched legal proceedings in South Africa for SA to
prosecute its citizens and members of the Israeli war cabinet and army for
war crimes and crimes against humanity, committed during operation cast
lead. A copy of the constitution of the PSA is attached hereto marked 1 .
4.
The Second Complainant is the International Coalition for Freedom and
Rights (ICFR), a legal and human rights organization which supports justice
and freedom for all. Among other things it cooperates with human rights
organizations and civil society institutions and initiates legal actions against
those that abuse human rights.
5.
A copy of
the
constitution of the ICFR is attached hereto marked
2 .
6. The Third Complainant is The Arab Organization for Human Rights in UK
(AOHR), a non-governmental organization which was established
in
1993
by
an
initiative of a group of activists in the field of human rights in the
United Kingdom to promote human rights culture in the world and to
advocate human rights in general and the rights of the Arab citizens in
particular.
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7. The Arab Organization for Human Rights in UK believes that transparency
and plainness in work are among the most important pillars o
humanitarian work. It permanently strives
to
publish facts
in
full whatever
painful they are
in an
independent and impartial manner. It also works
to
extent bridges of trust with the victims regardless of their beliefs, religion or
race
to
help build a strong human and legal platform advocating those
whose rights have been violated
and
were cut off as a result of the
behaviour of the executive organs
in
the countries where the practice of
repression and tyranny prevails.
8..
The Organization while endeavours to achieve its goals confirms that it is
an
integral part of the Human Rights Organizations Network
in
the world and it
completes its activities and role in working to advocate human rights to
achieve dignified life away from killing, coercion and persecution.
9. A copy o the constitution of the AOHR is attached hereto marked
3 .
10.
The Fourth Complainant
is
Mona Elthahawy.
Ms.
Eltahawy
is
a renowned
journalist
and
commentator who was born
in
Port Said Egypt and
is
a
graduate of American University
in
Cairo with a Masters Degree
in
Communication. A noted human rights activist,
Ms.
Eltahawy has been
selected as one of the 100 most powerful Arab women
in
the world. A
strong critic of the last three Egyptian regimes
and
their policies at home
and
abroad
Ms.
Eltahawy was arrested
in
2011 while covering protests at
Tahrir Square. While
in
custody
Ms.
Eltahawy was physically and sexually
assaulted.
11. The Fifth Complainant is Ali Ebrahim Chicktay. A citizen of South Africa and
longtime supporter of Palestinian rights,
Mr.
Chicktay is a registered
pharmacist, community activist
and
Board Member of highly acclaimed
Radio Station 786
in
Cape Town. Consistent with
his
Muslim faith
Mr.
Chicktay wants
to
go
to
Gaza
to
provide professional
aid and
Zakat alms
due) and Sadaqah charity) to help those
in
need.
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12. The Sixth Complainant is Dr Yusuf Moosa, a citizen of South Africa and a
qualified Psychiatrist who has been practising for thirteen years. He is also
able to provide general medical assistance.
He
is
an
avid supporter of the
rights of oppressed people all over the world and more especially those in
Palestine. He wants to travel to Gaza to provide aid in the form of both
general medical assistance as well as mental health support.
13. This complaint is brought against Egypt. Egypt is a party to the African
Charter
on
Human and Peoples' Rights and as this complaint will
demonstrate, is presently in violation of a number of the articles of this
charter.
14. The Complainants are represented by Nadeem Mahomed Attorneys the
attorney of record who practices from unit 16, Ridgeview Office Park, 248
Kent Avenue, Randburg, South Africa, telephone: 0027117818670, fax:
00866450085
15. The Complainants are further represented by Stanley L. Cohen of Stanley L.
Cohen
and
Associates with Sarah
K.
Hogarth, LL.M. who practice from 119
Avenue
D,
New York, N.Y. USA (212) 979.7572; Georges-Henri Beauthier,
Avoca au Barreau de Bruxelles, Rue Berckmans, 89 a 1060 Bruxelles,
Belgium +32
0)
538 90 10; Sarah Kay, Counsel, 40 ave de
Ia
Republique
91260 Juvisy, France.
B PROCEDURE ND PROVISION L RELEIF SOUGHT
16. In light of the serious and massive violations of fundamental human rights
that is currently occurring in the Gaza Strip, and in due consideration of
Egypt's complicity in those violations, the complainants hereby submit a
communication against Egypt
in
which they seek:
a) That the Commission seize itself of the instant complaint without
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the need for exhaustion of local remedies, if any;
b
That the Commission treat this application
as
a matter of
emergency pursuant
to
Article 58(3) of the African Charter and Rule
79
of the
o
the Rules of Procedure of the African Commission
on
Human and Peoples' Rights (hereinafter Rules of Procedure );
c
That the Commission urgently request that Egypt adopt
Provisional Measures pursuant
to
Rule
98
of the Rules of Procedure
to
prevent irreparable harm
to
the life, health, safety and well-being
of millions of refugees
in
Gaza, including but not limited to:
• The full, unfettered and immediate opening of the Rafah border
crossing
in
order to enable critical personnel such as
physicians, nurses and other medical staff and services
including much need medicine and equipment, food stuffs,
water and energy and fuel supplies
to
find its way
to
hospitals,
shelters, food kitchens, and schools;
• The full, unfettered and immediate opening of the Rafah border
to permit skilled tradespeople and building materials to enter
Gaza to undertake necessary repair of essential services and
infrastructure;
• The full, unfettered and immediate opening of the Rafah border
to
permit persons trapped
by
fighting
to
find safe haven and
to
permit relatives of refugees
to
provide assistance
to
their
families;
d And for such further and additional action that the Commission
Approved by the African Commission on Human and Peoples' Rights during its 47th ordinary
session held in Banjul (The Gambia) from May 12 to 26, 2010.
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deems necessary and appropriate
C
DMISSIBILITY OF THE PPLIC TION
17. Article 56.5 of the Charter says that communications are receivable for
consideration by the Commission if they are sent after exhausting local
remedies, if any, unless it
is
obvious that this procedure
is
unduly
prolonged. This requirement
is not
however, static or unduly rigid and
specifically contemplates a number of additional exceptions to the
exhaustion requirement of Article 56.5.
18. Thus, a complainant need not exhaust local remedies if they are either
unavailable or ineffective. Similarly, the African Commission has declared
the admissibility requirements of the Charter have been satisfied, including
the exhaustion of local remedies, where, as here, the Commission has
before it evidence of serious and massive human rights violations.
19.
Indeed, the Commission has previously acted decisively
in
disposing of the
local exhaustion rule when faced, as here, with violations of
an
enormous
and wide-ranging scope. The Commission has never held the requirement
of local remedies
to
apply literally in case where
it is
impractical or
undesirable for the complainant
to
seize the domestic courts in the case of
each violation. This
is
the situation here, given the vast and varied scope of
violations alleged and the general situation prevailing in Zaire .
3
The Commission may exercise its authority to refer the matter to the Court pursuant to Rules 84
and 118.3 of the Rules of Procedure and Article 5 of the Protocol to the African Charter on Human
and Peoples' Rights on the Establishment of the African Court on Human and Peoples' Rights.
3
See http:l/caselaw.ihrda.org/doc/25.89-47.90-56. 91-100.93/pdf/; Communication 54/91, 61/91,
98/93, 164/97, 210/98,
Malawi African association and others v Mauritania,
Thirteenth annual
activity report,
§
83; http://www. chr. up.ac.za/index. php/browse-by-subjecU361-mauritania-malawi
african-association-a nd-others-v-mau ritan ia-2 000-ah rlr -149-ach pr 2000. pdf; Communication
25/89, 47/90, 56/91, 100/93:
Free Legal Assistance Group, Lawyers Committee for Human
Rights, Union lnterafricaine des Droits e / Homme, Les Temoins e Jehovah v Democratic
Republic o Congo,
§37.
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20. Applying this standard alone
to
the facts presently before the Commission,
there
is
ample precedent to support a finding that the local exhaustion
requirement is not only unduly cumbersome, but, more important, if
enforced would serve
to
impede an expeditious
and
just resolution
to
the
grave
and
pressing humanitarian concerns raised by the complaint at
bar.
4
21. Moreover, given the current status of the Egyptian judiciary, to suggest that
it exists in any meaningful or independent way, is to exalt a readily
transparent exercise in form over substance. Indeed, in denouncing the Jack
of fair trials in Egypt little more than two months ago, the Commission itself
noted that the Egyptian authorities should bring its legal system into
compliance with international and regional standards.''
5
6
This finding is in
keeping with comments by the United Nations High Commissioner for
Human Rights, Navi Pi/lay, who in response to a series of Egyptian court
decisions in June of 2014 that included heavy prison sentences for
journalists noted:
I
am
particularly concerned about the role of the judicial system in
this clampdown. Harassment, detention and prosecution
of
national
and
international journalists, including bloggers, as well as
violent attacks by unidentified assailants, have become
commonplace .... Egypt's reputation, and especially the reputation
4
Indeed, the matter before this court is even more compelling than the case against Egypt
Communication 3341 6 - Egyptian Initiative for Personal Rights and lnterights v Arab Republic
of
Egypt
in
which the Commission held that all the conditions necessary for admissibility were
present, despite the absence of exhaustion of local remedies.
5
See African Commission
on
Human and Peoples' Rights Press Release, Egypt: Justice and
reconciliation increasingly failing after second wave of mass death sentences, 15 May 2014.
http lwww. achpr. orglpressl20141 51d2 41
6
See, also Communication
215198,
Rights International Nigeria Nigeria torture case}, decided at
the 26th ordinary session, Nov 1999, 13th Annual Activity Report §23 ( The Commission declared
the communication admissible
on
grounds that there was a lack
of
available and effective
domestic remedies for human rights violations in Nigeria under the military regime. )
http:/ www u nivie. ac.aUbimtorldateienlacom hpr_ 1999_rights _international_v_nigeria. pdf; and
Communication 205197, Aminu v Nigeria, decided at the 27th ordinary session, May 2000, 13th
Annual Activity Report, §13.(Commission declared the case admissible noting [we] are well
aware
of
the prevailing situation under the Nigerian military regime and
in
so doing found the it
would not be proper to insist
on
the fulfilment of the requirement that local remedies be
exhausted.)
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o its judiciary as
an
independent institution, are at stake. There is
a risk that miscarriage of justice is becoming the norm in Egypt.
22. There is a sweeping consensus among highly respected international
NGO's that since the so-called Arab Spring , the Egyptian judiciary is
broken and that judicial independence within it has all but vanished
8
In
part
this conclusion is amply demonstrated by pervasive judicial indifference to
prevalent mass incarceration, kidnapping, disappearances, extrajudicial
detention and torture, as well as other indicia o deep-seated state
repression and disregard for the rule of law.
9
23.
Finally,
it
must
be
recalled that
in
the light of institutional uncertainty and
instability
and
a palpable lack
o
commitment
to
democratic process, the
African Union suspended Egypt for a little less than a year after a coup in
July 2013, that overthrew the country's then elected President.
24. For all the reasons hereinabove set forth it is respectfully submitted that this
Honorable Commission should not require the complainants to exhaust local
remedies before proceeding
to
the merits of the claims arising from the
widespread and enormous human rights violations presented by the
complaint at
bar.
25. It is well-settled that where the Commission is presented with violations of
the magnitude set forth herein and where, as here, the complaints present
compelling and urgent claims in need o prompt redress and where, as here,
Office of the High Commissioner for Human Rights. Press Release, 23 June 2014.
http://www.ohchr.org/EN/newyork/Stories/Pages/Egypljournalistsverdict.aspx
8
See,
Human rights Watch 412912014):
http://www.hrw.org/news/2014104/29/egypt-fresh-assault
justice; Amnesty International
412812014):
http://www.amnesty.org/en/news/egypt-unfair-trial
death-sentences-make-mockery-justice-20 14-04-2 8
9
Human Rights First, Egypt s Incarceration Crisis, 10 July 2014.
http://www.humanrightsfirst.org/blog/egypt-s-incarceration-crisis. See also Amnesty International,
Egypt: Rampant torture, arbitrary arrests and detentions signal catastrophic decline in human
rights one year after ousting of Morsi, 3 July 2014. Available at http://www.amnesty.org/enlfor
media/press-releaseslegypt-rampant-torture-arbitrary-arrests-and-detentions-signal-catastrophic
See, International Bar Association, Egypt: IBAHRI urges new government to strengthen
independence of the judiciary in light of recent convictions, 1 July 2014:
http://www. ibanet. orglArticle/Detail. aspx? ArticleU d=d358354a-f212 -400 1-b465-30a670da36b2
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there is a marked
and
well-recognized absence of
an
effective, fair
and
independent local judicial system from which
to
seek meaningful
and
equitable redress, the Commission should deem the communication
admissible without resort
to
local exhaustion.
D NEED FOR URGENT PROCESSING OF THE COMMUNIC TION
26 Over the last month, Israel has unleashed a massive, unrestrained military
attack upon 1.8 million refugees in Gaza. As a result of Operation
Protective Edge which began
on
7 July 2014, thousands have been killed,
in excess
o
10,000 have been injured, a quarter of the population rendered
homeless and essential infrastructure destroyed.
27 Under the current circumstances, we are witness to an unfolding
humanitarian crisis
in
which there is scant time for routine procedural
requirements
to
blink the realities
on
the ground. With each passing moment
more and more refugees die for want of adequate medical treatment, while
others are denied access
to
the basic fundamental necessities of life.
Hospitals are closed, medicines exhausted, water in short supply or
contaminated and life-support systems rendered useless due to a lack of
electricity.
28 The citizens of Gaza are still being illegally occupied and oppressed and the
fact that Israel continues to commit war crimes and crimes against humanity
and in
light of the increasingly numerous loss of life and liberty arising
therefrom, the complainants submit that this communication should be
treated with the utmost urgency by the African Commission
on
Human and
Peoples' Rights.
1
11
1
Although as of the time of this submission there exists a tenuous 72-hour ceasefire among the
parties the claims raised and relief sought are no less urgent or compelling.
In
point of fact with the
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E
B CKGROUND ND ESSENTI L F CTS TO SUPPORT THE
PPLIC TION
29 The application before this Commission is offered in the light of the current
humanitarian crisis in the Gaza Strip. That crisis takes place against the
backdrop of decades of instability, poverty and vulnerability resulting from
repeated outbreaks of hostilities and the ongoing blockade of the land, air
and sea of Gaza.
30 · The blockade leaves only two crossings or limited pedestrian movement ·
and one crossing for the movement of goods. As a result, over 80 per cent
o Gaza's population of 1.8 million - more than half of them children under
the age of 18 - relied on humanitarian aid before the outbreak of current
hostilities. Various restrictions apply on the use of land within the Gaza strip
and 85 per cent of its fishing waters are totally or partially inaccessible.
2
31 Around 57 per cent of Gazans are estimated
to be
food insecure
and
unemployment remains high at 43 per cent. For years, the economy has
remained moribund.
3
32.
Gaza has been under siege by both Israel
and
Egypt through the Erez
and
Rafah crossings respectively for years. Together these two countries have
ceasefire there will surely be increased refugee movement within Gaza thus the demands upon its
infrastructure and the needs
o
the population, including free movement, will only
be
enhanced.
And see
Articles 60 and
61
of the African Charter
on
Human and Peoples' Rights, which
permits the Commission to take into consideration other general or special international
conventions and rules. In this regard two other regional human rights bodies permit for accelerated
review of compelling and exigent clairns. Thus, expedited relief is specifically permitted in the rules
o
the European Court for Human Rights. See Rule 39
o
the Rules of Court that allow for Interim
Measures. Likewise, under Article 25 of the Rules
o
Procedure, the Inter-American Court of
Human Rights (IACHR) permits a complainant to seek interim relief on
an
accelerated basis
pursuant to its procedure for Precautionary Measures .
2
Quoted from Briefing of the Under-Secretary-General Valerie Amos to the Security Council On
the Situation
in
the Gaza Strip,
31
July 2014. Available at
https://docs.unocha.org/sites/dms/Documents/USG%20Amos%20SecCo%20statement%20on%2
OGaza%20-%2031 %20J uly%202014 %20-%20As%20delivered.pdf
3
Ibid.
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33
34
35
collaborated in an orchestrated and tightly structured blockade that has
controlled what goods and service
and
persons could and could not enter
the Gaza Strip through these crossings.
On
7 July 2014, the Israeli army launched a military operation
in
the Gaza
Strip, codenamed Protective Edge, triggering a large-scale humanitarian
and
health crisis that poses an ongoing and immediate threat
to
the life
and
safety of nearly two million refugees.
The world watches in increasing alarm as the IDF target homes, hospitals,
schools and shelters and destroy the civilian infrastructure necessary for life
in Gaza.
14
What began with weeks of massive round-the-clock firebombing and
missiles from F-16 jets against a defenseless civilian population soon
evolved into constant shelling from hundreds of tanks and deep-sea ships
14
For example: A health disaster
of
widespread proportions is rapidly unfolding
in
the Gaza Strip
as a direct result of the ongoing conflict. Joint OCHA, World Health Organization and UNWRA
Press Release 2 August 2014. Available at
http://www.ochaopt.org/documents/Press_Release_UN_warns_of_imminent_health_disaster_in_
Gaza.pdf Also: The ICRC
is
appalled by the damage caused to the hospitals and branch offices,
as well as to the property, of the Palestine Red Crescent Society (PRCS) during the conflict in
Gaza. ICRC 01-08-2014 News Release 14/134, Gaza: ICRC appalled by damage
to
premises
and property of Palestinian
Red
Crescent. Available at
http://www. crc. org/eng/resou rces/docu ments/news-release/20 14/08-0 1-gaza-prcs-property. htm.
Also: Last night, children were killed as they slept next to their parents
on
the floor of a classroom
in a
UN
designated shelter in Gaza. Children killed
in
their sleep; this is an affront to all
of
us a
source of universal shame. Today the world stands disgraced. Statement by United Nations Relief
and Works Agency for Palestine Refugees in the Near East (UNRWA) Commissioner-General
Pierre Krahenbuhl, 30 July 2014. Available at http://www.unrwa.org/newsroom/official
statements/unrwa-strongly-condemns-israeli-shelling-its-school-gaza
serious#.U9jbJSNh_9A.twitter. Also: What happens to those left behind who cannot flee? Where
should they go? To overcrowded centres that may be bombed? To hospitals or medical
emergency services that are not spared by either of the warring parties? To destroyed
neighbourhoods where even Palestine Red Crescent ambulances are shot at? How many more
Shujaiyas
a sea of rubble, previously home to almost 100,000 people
does
it take before
everybody opens their eyes to the gravity of the situation? Statement by Jacques de Maio, ICRC's
head of delegation in Israel and the occupied territories, 29 July 2014. Available at
http://www. icrc. org/eng/resou rces/docu ments/statemenU20 14/07 -29-gaza-stop-the-killing. htm.
Also: The numbers don't begin to adequately tell the tale of the ongoing human tragedy in Gaza.
What we are witnessing is the killing of entire families, and of children in the street either playing or
trying to find safety. Waves and waves of ordinary people continue to flee their homes as the
already weak infrastructure in Gaza caves in under the relentless bombardment. Statement by
Navi Pillay, UN High Commissioner for Human Rights, 31 July 2014. Available at
http://www.ohchr.org/EN/NewsEvents/Pages/Media.aspx
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and, ultimately, a full scale ground invasion by thousands of heavily armed
troops with coordinated attacks throughout Gaza.
36. Since the collapse of the humanitarian ceasefire on August 1 the scale of
killings, injuries, damage in infrastructure
and
the displacement of civilians
has only increased.
Hostilities and asualties
37. As of 3 August the known cumulative death toll among Palestinians in Gaza
is over 1 700 people, with many bodies yet to be recovered or identified.
· The United Nations reports that nearly 85
of
deaths are civilians; including
over 370 children and nearly 200 women.
5
38. There are approximately 10,000 additional refugees either wounded or
injured, many of whom are in resinous or life threatening condition.
6
Similarly, thousands of these civilian victims are children, women and the
elderly.
39.
Since the launch of the Israeli military operation, hundreds
of
homes
in
Gaza have reportedly been directly targeted by Israeli air strikes, causing
civilian casualties, including multiple members of the same families.
7
40. It is estimated that thousands of homes have been totally destroyed and
tens of thousands have been severely damaged.
8
Up to 30 July, at least
76
families have lost three or more family members in the same incident, for a
5
UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
http://www. ochaopt. org/documents/ocha _opt_sit rep_
4_
08 _ 20 14. pdf
6
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
Gaza Situation Report 26, 3 August 2014. Available at
http://www. un rwa. org/newsroom/emergency-reports/gaza-situatio n-report-26
7
UN
Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
t t p : l / w w w ochaopt. org/documents/ocha _opt_sit rep_04_ 08 _ 2014. pdf
5,510 Gaza homes destroyed by Israel: Minister Anadolu Agency,
http://www. aa. com. tr/en/gaza/367 908--551 0-gaza-homes-destroyed-by-israel-m n ister
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total
o
407 such fatalities.
19
41. In particular we alert the Commission's attention to seven separate horrific
attacks on single households essentially wiping our several generations
within the same family:
•
•
•
[O]n
21
July,
an
Israeli air strike hit a residential tower
in
southern
Gaza City, killing ten members
o
the
AI
Qassas family, all civilians,
including six children .
Later that same day another Israeli air strike hit a house in central
Gaza City, which killed another ten, including three children.
2
On 13 July, 18 family members o Police Chief Tayseer AI-Batsh
were killed and 50 others wounded in still yet another Israeli
bombing run which targeted a civilian residence in Gaza.
2
• 2 August, 14:30; the Israeli air force fired at least one missile,
destroying the three- story house, home to five families, of Yousef
Dawoud Abu Madi, 68, in Nuseirat refugee camp. Six family
members were killed, including the owner, his son, and four children.
Another 10 people were injured, including three children and four
women.
• 2 August, 15:00; the Israeli air force bombed the house
o
Mohammed Ayyad Abu Taha, which
is
located
in
the
AI
Shabura
refugee camp
in
Rafah. The house was destroyed and four
o
its
residents were killed; including two children and one woman.
19
UN
Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 1 August 2014; 1500hrs. Available at
http://www .ochao pt.org/d ocuments/ ocha_opt_sit rep_
02
_
08
_ 2 014. pdf
2
UN Office for the Coordination of Humanitarian Affairs (OCHA), Assistant Secretary-General for
Humanitarian Affairs and Deputy Emergency Relief Cooridinator, Kyung-Wha Kang Statement to
the Human Rights Council Special Session
on
Gaza,
23
July 2014, Geneva. Available at
http://www.ohchr.org/Documents/HRBodies/HRCouncii/SpeciaiSession/Session21/0CHA.pdf
2
CBS News, Israel widens ai r attack as Gaza death toll rises, 12 July 2014
http://www.cbsnews.com/news/israel-widens-air-attack-as-gaza-death-toll-rises/
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•
Another three members
of
the family were injured .
3 August 01 :45; the Israeli air force bombed the house of Ahmed
Sweelim AI Roumi, 53, which is located in the AI Hashsh
neighborhood
in
Rafah. The house was destroyed and three of the
owner's sons and a daughter all children were killed. His wife and
two other sons were injured.
3 August 06:40; an Israeli aerial attack on the house of AI Ghoul
family
in
Rafah resulted
in
the killing
of
eight family members
including two women, three children
1
month, three years and 13
years old) and injury to seven others.
42. Given these and other unmistakable results, such cases reflect a conscious
effort on the part of the Israeli military command to target civilian and civilian
homes and essential infrastructure through the use of indiscriminate attacks
in clear violation of well-settled international law.
43. The ongoing conflict also presents a major concern
in
light the hazards
of
Unexploded Ordnance (UXO), especially the risk they pose
to
children.
3
isplacement
44. In recent days, thousands of residents from the eastern part of Rafah
governorate have fled westwards towards Rafah City and the coast, with
many seeking refuge
in
UNRWA shelters
4
45.
Across the Gaza Strip, nearly 270,000 refugees are crowded into 90
22
UN Office for the Coordination
of
Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
http://www.ochaopt.org/documents/ocha opt sitrep 04 08 2014.pdf
3
nited Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
Gaza Situation Report 24, 1 August 2014. Available at
http://www. u n
wa.
org/newsroom/emergency-reports/gaza-situation-report-24
4
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
Gaza Situation Report 25, 2 August 2014. Available at
http://www. u n
wa. org/newsroom/emergency-reports/gaza-situation-report -25
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46
47.
48
49.
schools.
25
This represents an average of 3,000 internally displaced people
(lOP's) per shelter, which normally have the capacity
to
accommodate only
500 people. Another 15,700 lOP's
are
residing
in
19
government schools
and other institutions and some 7,000 are reportedly seeking refuge in
public buildings or informal shelters.
The Ministry of Social Affairs (MoSA) estimates that the number o persons
staying with host families throughout the Gaza Strip could be as many as
200,000.
As of 3 August, UNRWA estimates the total number of lOP's
is
approaching
a half a million, which amounts to one quarter of the total population
o
Gaza.
26
ealth Services
While the number of people injured over the course of hostilities continues
to grow rapidly, the public health system is nearing collapse. At least 12
hospitals have been damaged since the start of the Gaza emergency, of
which five have had to shut down. Fourteen primary health clinics also
sustained serious damage and nearly half of all clinics
in
Gaza (34 out of
75 have closed, primarily due
to
insecurity, including all of those located
within the three kilometer buffer zone declared by Israel.
Hospitals are increasingly forced
to
make difficult choices about which
patients can receive care, and are forced
to
discharge patients prematurely
even though they may have
no
suitable place
to
go.
27
25
UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
http://www.ochaopt.org/documents/ocha opt sitrep 04 08 2014.pdf
26
bid.
27
UN Office for the Coordination
o
Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 2 August 2014; 1500hrs.
http://www. ochaopt. org/documents/ocha_opt_sitrep_03_08_ 20 14. pdf
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50
51
52
53
The psychological impact of the ongoing hostilities is of grave concern
8
UNWRA reports that in the shelters, children are showing symptoms of
distress and cling
to
parents, and children and adults alike are suffering
from sleeping and eating disorders, nightmares, nervousness, and feelings
of depression, guilt, anger
and
helplessness.
29
OCHA estimates that over
373,000
children require psychosocial treatment
as a result of their experiences of death, injury or loss of home since the
beginning of hostilities. These harms are exacerbated
by
the numerous
incidents of Israeli shelling of UN shelters that provides a gruesome
reminder that there
is no
safe space
in
Gaza.
30
nfrastructure
Gaza s sole power plant was shelled
and
destroyed on 29 July, seriously
exacerbating an already critical shortage of electricity that is affecting
civilians, businesses
and
the provision of public services. OCHA estimates
that only per cent of Gaza s electricity requirements are currently being
met 31
Fuel is urgently needed for emergency vehicles and generators in the
schools and shelters, and to operate water and sanitation
facilities. Communication systems have also been targeted, creating an
obstacle to delivery of urgent public safety information to the civilian
28
Well before the current hostilities, it was well documented that there were already extreme levels
of posttraumatic stress disorder, particularly among the young refugee population
in
Gaza. See for
example United Nations Relief and Works Agency for Palestine Refugees
in
the Near East
(UNRWA) Press Release,
21
January 2013 Available at http://www.unrwa.org/newsroom/press
releases/serious-upsurge-post-conflict-trauma-gaza-says-un
29
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
Gaza Situation Report 26, 3 August 2014. Available at
http://www.unrwa.org/newsroom/emergency-reports/gaza-situation-report-26
30
UN Office
or
the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
http://www. ochaopt. org/documents/ocha_opt_sit rep_04 _
08
_ 20
14
3
UN
Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 2 August 2014; 1500hrs. Available at
http://www. ochaopt. org/docu ments/ocha_opt_sitrep _ 03 _08_ 2014. pdf
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population. No construction materials are available to begin reconstruction
of homes, hospitals or other buildings providing critical public services.
32
54 Access to remote locations within Gaza has been severely hampered,
where an unknown number of civilians are dead and others wounded but
left to
fend
for themselves in the absence of any emergency services.
55
56
Water, Sanitation and Hygiene WASH)
Damage to electricity production and fuel delivery systems is impacting the
operation
of
critical WASH systems. Ongoing hostilities are limiting access
to these facilities for repairs and operation. Supplies
of
drinking water are
already insufficient to meet the needs of medical facilities, private
residences or the shelters that are providing temporary housing to displaced
civilians.
33
Water is also urgently needed for personal hygiene systems to reduce the
risk of the spread of disease, especially in overcrowded shelters
4
The lack
of electricity to pump water is a compounding factor.
5
57 Overcrowding at shelters is creating a strain
on
the hygienic conditions for
hundreds of thousands of lOP's and raising concerns about the outbreak of
epidemics.
An accelerated level of diarrhea has already been reported
3
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
Gaza Situation Report 26, 3 August 2014. Available at
http://www. u n rwa. org/newsroom/emergency-reports/gaza-situation-report -26
33
Even before the onslaught Gaza was suffering from a shortage of clean drinking water with
estimates suggesting that it would run out of such water
by
the year 2020. BBC, Gaza 'will not be
liveable by 2020' - UN report, 27 August 2012, http://www.bbc.com/news/world-middle-east-
19391809. Quoting the UN Country Team (UNCT) in the occupied Palestinian territory report
available at http://www.unrwa.org/userfiles/f ile/publications/gaza/Gaza 20in 202020.pdf
34
Before the most recent fighting it has been evident for several years that prior attacks on
infrastructure and sewage systems has caused the free flow of raw sewage throughout the streets
of Gaza leading into the Mediterranean the norm. See NYTimes, Raw Sewage and Anger Flood
Gaza's Streets as Electricity Runs Low, 20 November 2013
http://www. nytimes. com/20 13/11
/21
/world/m ddleeasUraw-sewage-a nd-a nger floods-gazas
streets-as-electricity-runs-low. html?pagewanted=a
&
_r= 1
&
5
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
Gaza Situation Report 24, 1 August 2014. Available at
http://www.unrwa.org/newsroom/emergency-reports/gaza-situation-report-24
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58
among children.
With both water and sewage systems severely damaged, there is concern
about contamination of water systems, particularly in light of attacks
on
the
water chlorination unit, rendering it non-operational. The desalination plant
in Deir El Balah is also non-operational due to airstrikes. Solid waste
collection in Gaza is seriously impacted by a lack of access and the
dumpsite in Juhor
ad
Dik remains inaccessible.
36
59 Hundreds of thousands of people are already without access
to
clean water
and if the current situation continues, that number will increase
significantly.
37
60
61
ood
Ongoing hostilities are severely limiting food safety, production and
supplies. Agricultural land is inaccessible and the seas are off limits for
fishing and food prices have jumped accordingly.
38
UNWRA reports that
as
of 2 August their two main warehouses
in
the Gaza
Strip are inaccessible due
to
being located within the Israeli imposed buffer
zones , thereby threatening their ability to continue
to
provide food
and
non
food relief supplies
to
refugees.
39
62 In addition, due to the severe electricity shortages there are growing
concerns over the health impacts of unsafe food items being consumed,
36
UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
http://www. ochaopt. org/documents/ocha _opt_sit rep_ 04 _ 08 _ 2014. pdf
37
Briefing of the Under-Secretary-General Valerie Amos to the Security Council On the Situation
in
the Gaza Strip,
31
July 2014. Available
t
https://docs.unocha.org/sites/dms/Documents/USG%20Amos%20SecCo%20statement%20on%2
OGaza%20-%2031 %20J u y%2020 14%20-%20As%20del vered. pdf
38
UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available
t
http://www. ochaopt. org/documents/ocha _opt_sit rep_ 04 _ 08 _ 2014. pdf
39
United Nations Relief and Works Agency for Palestine Refugees
in
the Near East (UNRWA)
Gaza Situation Report 25, 2 August 2014. Available
t
http://www.unrwa.org/newsroom/emergency-reports/gaza-situation-report-25
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such as non-refrigerated meat
4
Education
63
Schools have also suffered devastating damage from airstrikes. Since the
start of these most resent hostilities 141 schools have been damaged,
including 50 government schools and
90
UNRWA schools that are now in
need of repair. Several buildings of the Islamic University in Gaza City also
sustained severe damage and 4 kindergartens have been significantly
damaged or destroyed since the start of the emergency, and are in need of
repair or reconstruction
4
F P LESTINI NS WHO RESIDE IN G Z RE REFUGEES
64. It is well settled that Palestinians who reside in the Gaza Strip have been
legally accorded refugee status and are thus entitled to all the protections
set forth under international law to
be
respected in times of war.
65.
In this light Egypt's on-going unwillingness
to
open the Rafah border as
hereinabove set forth constitutes clear violations of Article II
-2
sections (d)
and f)
of the OAU Charter, indicating that .. the Member States shall
coordinate
and
harmonize their general policies, especially in the following
fields: c - educational
and
cultural cooperation,
and
f - cooperation for
defense
and
security , by which its closure continues
to
leave tens of
thousands of Palestinians, many of them injured, trapped in the midst of
heavy
and
deadly combat not only in Rafah, but other nearby
neighborhoods and cities. In addition, through its unwillingness
to
open the
border Egypt has compounded the humanitarian crises confronting millions
40
United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA)
Gaza Situation Report 24, 1 August 2014. Available at
http://www.unrwa.org/newsroom/emergency-reports/gaza-situation-report-24
41
UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
http://www. ochaopt. org/docu ments/ocha_opt_sit rep_04_08_ 2014. pdf
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66
67
o
Palestinian refugees by denying them access to critically needed, indeed
lifesaving, goods, materials and services.
The humanitarian imperative is a duty long bestowed upon all international
member states to the Geneva Conventions requiring them to provide
assistance wherever and whenever it is needed to ensure that the
international community does not sit idly by in matters of grave breaches of
international humanitarian law and as here, in the presence of abundant
evidence of war crimes. Indeed in the light of copious findings by numerous
United Nations agencies and NGO's cited elsewhere herein, Egypt is in a
unique position, nay obligation, to open the Rafah border crossing
and to do
so promptly and fully thereby allowing for on-going and unimpeded
humanitarian relief efforts.
Given the surrounding circumstances there can
be
no reasonable finding
but that Egypt is bound by international law and the law of the African Union
of which it is a member state to act, and to act immediately, to ensure full
and
necessary compliance with the humanitarian imperative
4
68. This Imperative is no less articulated or compelling under the African
Charter. Indeed Egypt's misconduct with regard to its collaboration with
Israel in the complete closure of the Rafah border crossing during the Israeli
onslaught upon the civilian population of Gaza reads like a veritable primer
in
human right's transgression
and in
itself, amounts
to
a prim f cie case
of complicity in war crimes.
69.
Thus other than a few isolated instances over the last month
in
which Egypt
4
Although Common Article 3 does not expressly detail the duty of third-party states to a conflict to
provide humanitarian assistance, under the ICRC interpretation, .. the Fourth Geneva
Convention Relative to the Protection o Civilian Persons
in
Time of War establishes explicitly that
States have the duty to provide humanitarian aid to the civilian population under their control (non
nationals, whether free or detained, and the population o occupied territories) of the adverse party
and, if unable to do
so.
are bound to accept the offer of third parties to provide the required aid. If
this article is to be understood as a cooperation and diplomacy engagement of third-party states
under mutual assistance treaties, it must lead to the conclusion that Egypt has a non-direct
responsibility under Article 3 pursuant to the 1979 Israel-Egypt treaty commanding cooperation
between the two states.
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has opened the Rafah border for use by several international monitors and
journalists to cross into Gaza or to permit a miniscule number of wounded
Palestinians
to
enter Egypt for medical treatment
4
it has maintained a strict
and complete embargo
on
travel and goods and services from entering or
exiting the besieged Palestinian enclave.
70. By way of illustration alone, on the 19th July Egypt refused the passage of
11
buses and 500 humanitarian aid workers from crossing the border;
likewise it has turned back repeated efforts from international relief
organizations to enter Gaza with technicians, skilled building trade workers,
food . water, medicines, medical equipment, and workers, energy and
infrastructure supplies and material, gasoline and petroleum supplies and
cooking stoves. In addition, trapped on the Palestinian side of the Rafah
crossing are several hundred displaced persons who are otherwise unable
to
escape on-going attacks in various parts of Rafah.
44
71.
In
short, Egypt s systematic and long-term closure of the Rafah border
crossing violates the well-established international legal principle of us
cogens
namely, the responsibility of a member state of the international
community to protect civilians from war crimes.
72. Egypt, by closing the border or through its limited and haphazard opening
policy has not only prevented the refugee population of Gaza from obtaining
essential humanitarian goods and services but has violated and continues
to violate its own independent and fundamental international obligation to
protect civilians from war crirnes. As noted, this omission, without more,
likely establishes a prima facie war crime s violation
on
the part o Egypt
itself. Indeed, the not too distant horrors of the Bosnian genocide still echo
with profound and painful resonance to the world community
as
a whole.
Thus, there can
be
no mistake that denial of humanitarian assistance and
4
It has been reported that of the 10,000 Palestinians wounded since the onset of the slaughter a
total of 140 Palestinians have been permitted to enter Egypt for treatment.
Nalan ai-Sarraj testimony to Dan Cohen for Mondoweiss, Aug
1
2014.
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protection can, as here,
be
considered a significant international breach, if
not a war crime:
The denial of humanitarian assistance may have various aims.
In
a
conflict where civilians are targeted, the displacement of part of the
population or their starvation is such an aim; this could, for example,
further a policy of ethnic cleansing . The
aim
of sieges or blockades is
to
bring hostilities
to
a quicker end with less casualties for the
besieging forces by obliging the besieged forces to surrender.
5
G
SCOPE OF PPLIC TION
73 Before this Commission is an application which seeks an order compelling
Egypt
to open the border crossing at Rafah to permit the delivery o
necessary goods and services and travel for essential personnel and
families to and from the Gaza Strip.
74 In considering the instant application the Commission is necessarily bound
by the Charter of the African Union, which was established in 1963 and
which subsequently accepted Egypt's entry as a member state and
signatory in June of 2014.
75 The Charter itself specifically looks
to
other international laws
and
statutes
in
determining the reach of its application with regard
to
fundamental human
rights. Under the circumstances before this Commission,
it is
respectfully
submitted that the following Articles should be considered, along with the
Charter, with regards
to
the humanitarian crisis
in
the Gaza Strip, and the
5
Of course, ... Military considerations are often put forward to justi fy starvation, on the ground
that only such rigorous measures can bring the hostilities to a speedy close. The civilian nature
o
a population may also be questioned, with the suggestion that its members belong
in
reality to
rebel forces. Christa Rottensteiner, University of Essex, ICRC 30-09-1989 Article, International
Review of the Red Cross, No 835. Additional footnoting: first criminality of violation in
an
international tribunal: Decision on the Appeal on Jurisdiction, Tadic case, op cit note 14
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freedom of movement at the border crossing at Rafah both during and after
the conclusion of the current conflict.
76. In considering the depth and breadth of the African Charter's applicability
to
the humanitarian catastrophe in Gaza it is respectfully submitted that the
Commission must necessarily take a wide view o Egypt's obligations under
it as a member state of the African Union. In this regard Article 60 o the
Charter notes that:
The Commission shall draw inspiration from international law on
human
and
peoples' rights, particularly from the provisions of
various African instruments on Human
and
Peoples' Rights, the
Charter of the United Nations, the Charter of the Organization
o
African Unity, the Universal Declaration of Human Rights, other
instruments adopted by the United Nations
and
by African
countries
in
the field of Human
and
Peoples' Rights,
as
well as
from the provisions of various instruments adopted within the
Specialized Agencies of the United Nations of which the Parties
to
the present Charter are members.
77. Any question about the need for a generous and broad interpretation of
Egypt's responsibility to human rights and humanitarian protections as
informed by settled principles of international law is further spelled out under
Article 61 of the Charter. As noted:
The Commission shall also take into consideration, as subsidiary
measures
to
determine the principles, of
law
other general or
special international conventions, laying down rules expressly
recognized by Member States of the Organization of African Unity,
African practices consistent with international norms on Human
and Peoples' Rights, customs generally accepted as law general
principles of law recognized
by
African States as well as legal
precedents
and
doctrine.
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78. Article II 1, c)
6
and (e)
7
of the
OAU
Charter (1963) both apply
to
the
defense of the Charter of the United Nations, recognizing as inalienable the
right to self-determination of peoples; to defend sovereignty
and
integrity of
territory, in regards to the occupied and captive nature of the people of the
Gaza Strip; to promote their liberty and aspirations towards freedom and
independence.
79.
80
Internationally there is absolute consensus among organizations, legal
bodies and NGO's alike that an enormous humanitarian crises is well under
way in Gaza and that without immediate intervention and relief, it will
continue to cause widespread death and destruction among a defenseless
civilian population that has been stripped of essential resources
and
the
most rudimentary infrastructure necessary to sustain life.
In
this regard little more than a week ago the United Nations Human Rights
Council called upon the international community, including the States
Members of the United Nations, international financial institutions
and
intergovernmental and non-governmental organizations, as well as regional
and
interregional organizations,
to
provide urgently needed humanitarian
assistance and services
to
the Palestinian people in the Gaza Strip,
including
by
supporting the emergency appeal launched
by
the United
Nations Relief and Works Agency for Palestine Refugees in the Near East
on 17
July 2014."
48
46
In relevant part, noting the obligation:" .. to defend their sovereignty, territorial integrity and
independence". Egypt, which has control over the Rafah border crossing, has no responsibility to
Israel or any other party with regard to the manner and means with which it operates the gateway
to Gaza other than that required under the African Charter and international law.
47
n relevant part, noting the obligation: " .. to promote international cooperation, having due regard
to the UNC and the UDHR" thereby, upholding fundamental and inalienable rights is explicitly
within the scope of member states to the OAU, who are thus bound to uphold international human
rights law and humanitarian law, including but not limited to humanitarian concerns.
48
United Nations Human Rights Council Resolution S-21/1 (23 July 2014). Available at
http: www. ohchr. org/E N/H RBodies/H RC/Specia1Sessions/Session21 /Pages/21 stSpeciaiSession. a
spx. In seeking the support o the international community and all of its member states the
resolution of the United Nations Human Rights Council specifically called for
an
immediate and
complete end to the "illegal closure of the occupied Gaza Strip, which in itself amount[ed] to
collective punishment of the Palestinian civilian population, including through the immediate,
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81. In this light, the issues before the Commission are necessarily narrow:
a
whether Egypt
as
a member state of the African Union and a signatory
of its Charter on Human and Peoples' Rights and
in
due consideration of
other national and international law, is obligated to immediately open the
border crossing at Rafah to permit for emergency movement of persons,
good and services to address the full scale human rights catastrophe within
and among the 1.8 million refugees under siege and fire
in
the Gaza Strip;
and
b
whether this Commission has the jurisdiction, competence and authority
to order Egypt to immediately open the border crossing at Rafah for the
human rights purposes hereinafter set forth.
In
sum, and for the reasons to
follow, it is respectfully submitted that upon due consideration, the
Commission should order Egypt
to
immediately open the Rafah crossing.
H
VIOLATIONS
Article
82. According
to
Article 4 - Human beings are inviolable. Every human being
shall
be
entitled
to
respect for his life and the integrity of his person. No one
may
be
arbitrarily deprived of this right.
83. Although Egypt has apparently shown some willingness
to
facilitate
ceasefire talks among Israel, Hamas and other resistance groups
in
the
Gaza Strip during the current attack by Israel upon its refugee population
and, seemingly, has engaged in some nominal efforts
to
promote a
diplomatic and political resolution
to
the on-going fighting among and
sustained and unconditional opening of the crossings for the flow
o
humanitarian aid, commercial
goods and persons to and from the Gaza Strip,
in
compliance with . international humanitarian
law.
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between these parties, in other respects it is palpably clear that in
abrogation of International law and its duties as a member state of the
African Union, Egypt has knowingly and willfully violated its obligations, as
well as the humanitarian imperative, regarding the Rafah crossing.
84 Whether in coordination with Israel, or of its own accord, Egypt has
maintained and continues to maintain essentially a total closure of the Rafah
border crossing thereby creating, contributing
to
or intentionally
compounding an enormous humanitarian crisis confronting a defenseless
and vulnerable refugee population of almost two million people, half or more
of whom are children.
85 Thus,
and
by way of example alone, Egypt has refused
to
open the Rafah
border
to
permit injured
and
trapped refugees to seek a safe haven
and
emergency medical treatment within its
own
borders. It has furthered
impeded or denied access through the Rafah crossing
to
Gaza, volunteer
physicians, nurses and other medical support personnel as well
as
essential
medicines and related treatment material and equipment including
ambulances and various portable diagnostic apparatus.
86 Likewise despite an enormous and evident need and an abundant
availability, Egypt has refused to permit the introduction into Gaza of food,
foodstuffs, baby formula and supplements, water and other essential health
and life sustaining provisions and necessities.
87 So too Egypt has refused offers from recognized international
aid
associations
and
NGO s
to
provide
to
the trapped refugee population of
Gaza various essential energy and cooking resources such as coal,
gasoline, natural gas, petroleum and diesel fuel and portable stoves
including wood, pellet and fire places.
88 Finally, Egypt has refused to permit volunteer electricians, plumbers,
masons, engineers and other skilled craftsmen and women with expertise in
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infrastructure triage and repair
to
enter Gaza
to
undertake critical, essential
and lifesaving repairs to an already damaged core infrastructure and
facilities that have been specifically targeted
by
Israel during its most recent
incursion.
89. In
this regard it
is
well noted that Gaza and its vulnerable refugee population
is
essentially without any electricity, clean running water and protection and
lacks the technical and energy ability to provide core, fundamental and life
sustaining services for its 1.8 million refugees.
90.
Egypt has
an
international, regional and national responsibility
to
open the
Rafah crossing both under the humanitarian imperative and
in
terms of their
obligations under the Charter of the African Union, which creates a duty to
uphold the responsibility of the application of human rights law and
international humanitarian law (IHL), especially
in
regard
to
Article
3,
Geneva Convention of 1949, for the respect of the wounded and the sick in
time
o
war,
49
which has not been respected by Israel.
91.
For all the reasons herein above set forth, and
by
maintaining a closure of
the Rafah border crossing, Egypt has violated the unmistakable right to life
and integrity as protected under Article 4.
Article 2
92. According
to
article 12 - (1) Every individual shall have the right
to
freedom
o
movement and residence within the borders of a State provided he
abides by the law. (2) Every individual shall have the right
to
leave any
country including his own, and
to
return to his own countryso
(3)
Every
individual shall have the right, when persecuted, to seek and obtain asylum
in other countries
in
accordance with the law of those countries and
49
Article 3
is
usually referred to as common article
3 ,
as present and reaffirmed in all 4 Geneva
Conventions.
5
To the extent that exceptions to this right are allowed on the basis of national security claims,
there must be a particularized showing based upon more than mere suspicion, and not, as here,
solely on the basis of ethnicity or national origin.
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93
94
international conventions.
Many people in Gaza require sophisticated medical treatment that is
otherwise unavailable there under present conditions; the closest sources
for such treatment are located
in
Egypt. They also have the right
to
seek
asylum given the dangers and uncertainty inherent
to
the combat
in
Gaza.
Given these needs and rights, the closure of the Rafah border crossing
manifestly violates Article 2 of the Charter.
Based upon information reported by the United Nations Office of the High
Commissioner for Human Rights (UNHCR}, United Nations Office for the
Coordination of Humanitarian Affairs (OCHA), United Nations Relief and
Works Agency for Palestine Refugees in the Near East (UNRWA), Ministry
of Social Affairs (MoSA), Ministry of Education and Higher Education
(MoEHE}, Palestinian Red Crescent Society (PCRS) and Internal
Committee of the Red Cross (ICRC), the World Health Organization (WHO)
and their respective representatives
5
and formal written statements
submitted
to
the United Nations Human Rights Council (UNHRC) as well as
public statements by other non-state actors and NGOs,
52
it is clear that
there is an enormous humanitarian crisis caused by the conflict in Gaza. In
this regard, the unique and unlawful nature of the siege has led not only
lead
to
an obscene death and injury toll among civilians, but
to
long-lasting
damage among civilian infrastructure, and humanitarian facilities including,
but not limited to, hospitals, UN-run schools and UN-run shelters. It must
be
noted that on at least six occasions UN shelters have been targeted by the
Israeli military resulting
in
tremendous death
and
injury
to
refugees that
had
sought shelter in these facilities.
53
5
Representatives
o
the relevant agencies testified before the UN Security Council on the 31 of
July with regard to the situation
in
Gaza.
52
These statements resulted
in
the
UN
HRC convening an independent inquiry into war crimes
committed during the most recent attack upon Gaza, Operation Protective Edge.
53
In
point of fact an estimated 113 UNRWA installations have been damaged many of them on
multiple occasions although UNRWA is still unable to verify the precise number
o
attacks because
o the current security situation. United Nations Office for the Coordination of Humanitarian Affairs
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95
96
UN agencies, nominally but not limited to, UNRWA, UNHRC, and UNOCHA
have all recognized that the current immediate situation in the Gaza Strip
has been exacerbated by the situation of a long-term siege and blockade of
the refugees
in
Gaza which,
in
the best of times, has typically made it
impossible for civilians
to
travel,
to
have sufficient access to food, water,
medicines
and
medical equipment, electricity and other fuels and materials
necessary to maintain the integrity of its core infrastructure.
5
4
Of course, with the onset of the month-long Israeli onslaught, this condition
has only worsened, becoming critical and posing an imminent threat to the
life, safety and essential well-being of almost 2 million refugee residents
o
the Gaza Strip held captive and defenseless from incessant round-the-clock
military incursions and bombings, unable to evacuate through the sealed
Rafah border, and denied access to essential life-sustaining and medical aid
due to the same closure.
5
5
97. Egypt is in violation of the provisions of Article 12 of the Charter.
Article 2
98. Egypt is also in violation of article 20(2) and 20(3). Egypt is obliged to
provide assistance to the people of Gaza in their struggle against
occupation and oppression.
99. Egypt is in the best position to alleviate the suffering of the people of Gaza
(OCHA) Gaza Emergency Situation Report 25 2 August 2014). Available at
http://www.unrwa.org/newsroom/emergency-reports/gaza-situation-report-25
54
See for example: Briefing
o
the Under-Secretary-General Valerie Amos to the Security Council
On the Situation in the Gaza Strip, 31 July 2014. Available at
https://docs.unocha.org/sites/dms/Documents/USG%20Amos%20SecCo%20statement%20on%2
OGaza%20-%2031 %20July%202014%20-%20As%20delivered.pdf
55
UNRWA locations have not been the only relief shelters targeted by Israel over the last month
for bombardment. Thus the Palestinian Red Crescent Society (PRCS) a branch of the International
Committee for the Red Cross was itself targeted. As noted by the ICRC it was appalled by the
damage caused to [its] hospitals and branch offices,
as
well
as
to the property, of the PRCS
during the conflict in Gaza. A PRCS compound in Khan Younis came under attack today, and five
members of a PRCS worker's family were injured. About 250 people were sheltering in the
compound when
it
was hit. http://www.icrc.org/eng/resources/documents/news-release/2014/08-
0 1-gaza-prcs-property. htm
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and ameliorating the conditions caused by the present humanitarian crisis
by opening the Rafah border crossing. Its failure
to
do so is
in
direct
violation of Article
2
of the Charter.
Violations
o
Customary International Law
100. There is
an
erg omnes duty
on
Egypt to provide humanitarian relief
to
the
people of Gaza. This obligation flows from the R2P principle that is
internationally accepted and was for example utilized by NATO
in
its
intervention
in
Kosovo. The difference
in
this application is that what the
complainants seek here is not military intervention but rather something far
less violent i.e. humanitarian assistance and intervention.
I PERM NENT RELIEF SOUGHT
101. The Complainants do not seek a wide range of relief from this Honorable
Commission.
To
the contrary they seek a single act which
by
its very nature
will help
to
alleviate and immediately so
an
enormous humanitarian crises
that has engulfed the 1.8 million refugees that call Gaza home: the
permanent opening of the Rafah border crossing.
102. This single act will enable critical personnel such as physicians nurses and
other medical staff and services including much need medicine and
equipment food stuffs and supplements and water
to
find its way to
hospitals shelters food kitchens and schools. It will permit persons trapped
by
the horrors of combat
to
find their way
to
safety.
103. It will allow for temporary housing and additional shelters
to
provide
necessary and safe accommodations for several hundred thousand
refugees that have not only been left homeless but powerless
to
act with the
onset of inclement weather not far away.
104. It will facilitate critical repair work on essential civilian infrastructure including
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electrical and water treatment systems that have been rendered all but
useless by years of embargo and destroyed by an uninterrupted month of
targeted attacks by Israel that
by
any reasonable application of regional
and
international law constitute war crimes.
105. Perhaps most important, the permanent opening of the Rafah crossing will
enable the refuges of Gaza to reclaim some sense of personal liberty and
hope.
106. The Complainants do not seek the intervention of this Commission to
encourage or compel Egypt
to
take sides in this conflict or
to
assist the
Palestinian victims of a systematic policy
o
collective punishment intended
to maim
and
kill civilians for political purposes.
107. To the contrary, the Complainants merely seek Egypt to uphold its human
rights
and
humanitarian obligations under the African Charter on Human
and Peoples' Rights and in accord with well-established standards of
international law
108. That obligation can be fulfilled by the single necessary act of opening the
Rafah crossing and would
be in
accord with widespread demands for that
very step.
See i.e.
Statement of the Coordination Committee o the Special
Procedures of the Human Rights Council and the Special Rapporteur on the
Situation of Human Rights in the Palestinian Territories (23 July 2014) ( We
also urge Egypt to ease the restrictions at the Rafah crossing and allow the
entry of essential humanitarian assistance. )
6
109. For all the reasons herein above set forth, and in light of the undisputed
humanitarian crisis arising from the Israeli attack on Gaza, complainants
seek an order of this Honorable Commission compelling Egypt to open the
Rafah border crossing with all deliberate speed.
6
Available at
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsiD=14894&LangiD=E
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110 And for such further and additional relief deemed appropriate by the
Commission
Stanley
L
Cohen
Georges Henri Beauthier
Sarah Kay
Of counsel
Sarah K Hogarth
On brief
Date: