african human rights complaint against egypt re rafah closing

8/12/2019 African Human Rights Complaint Against Egypt Re Rafah Closing

http://slidepdf.com/reader/full/african-human-rights-complaint-against-egypt-re-rafah-closing 1/32



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.



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.



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



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;


to permit skilled tradespeople and building materials to enter

Gaza to undertake necessary repair of essential services and

infrastructure;


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.



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.



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.)



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



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



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.



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



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


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



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



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/



•

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


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)


http://www. u n

wa.

org/newsroom/emergency-reports/gaza-situation-report-24

4



http://www. u n

wa. org/newsroom/emergency-reports/gaza-situation-report -25



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



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



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



http://www.unrwa.org/newsroom/emergency-reports/gaza-situation-report-26

30

UN Office

or

the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation


http://www. ochaopt. org/documents/ocha_opt_sit rep_04 _

08

_ 20

14

pdf

3

UN



http://www. ochaopt. org/docu ments/ocha_opt_sitrep _ 03 _08_ 2014. pdf



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



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






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



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


OGaza%20-%2031 %20J u y%2020 14%20-%20As%20del vered. pdf

38


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




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




41



http://www. ochaopt. org/docu ments/ocha_opt_sit rep_04_08_ 2014. pdf



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.



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.



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



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.



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,



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.



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



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.



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



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


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


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



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



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



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: