COMMUNICATION TO: THE AFRICAN COMMISSION ON PEOPLE AND

HUMAN RIGHTS:
THE SECRETERIA T

P 0 Box 673, Banjul, The Gambia

Tel: 220 392962

Fax: 220 390764

AGAINST EGYPT PURSUANT TO ARTICLE 55 AND 58 OF THE AFRICAN

CHARTER ON HUMAN AND PEOPLES' RIGHTS.

SUBMITTED BY:

PALESTINE SOLIDARITY ALLIANCE

FIRST COMPLAINANT

THEICFR

SECOND COMPLAINANT

AOHR

THIRD COMPLAINANT

MONA EL THAHAWY

FOURTH COMPLIANANT

All EBRAHIM CHICKTAY

DR YUSUF MOOSA

FIFTH COMPLAINANT

SIXTH COMPLAINANT

A. THE COMPLAINANTS

1.

The First Complainant is the Palestine Solidarity Association (PSA), a

voluntary body based in Johannesburg South Africa with locus standi 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

~overnment

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

humanitarian work. It permanently strives to publish facts in full

pillars

of

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 of 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 AND PROVISIONAL 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 of the Rules of Procedure of the African Commission on
Human and Peoples' Rights (hereinafter "Rules of Procedure"); 1
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

physicians,

order to enable critical

personnel

such

as

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.

deems necessary and appropriate 2

C. ADMISSIBILITY OF THE APPLICATION

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-malawiafrican-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 de /'Homme, Les Temoins de Jehovah v Democratic
Republic of 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 334106 - 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 :1lwww. ach pr. orglpressl20 141051d2041
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:/lwww. univie. 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.)

of 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 of 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 of 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 of 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-assaultjustice; Amnesty International (412812014): http://www.amnesty.org/en/news/egypt-unfair-trialdeath-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/enlformedia/press-releaseslegypt-rampant-torture-arbitrary-arrests-and-detentions-signal-catastrophicSee, 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 id=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 COMMUNICATION

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 of 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. 10 I

10

11

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.

BACKGROUND

AND

ESSENTIAL

FACTS

TO

SUPPORT

THE

APPLICATION

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 for limited pedestrian movement
and one crossing for the movement of goods. As a result, over 80 per cent
of 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. 12
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. 13

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 of the population, including free movement, will only be enhanced.
11
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
of the European Court for Human Rights. See, Rule 39 of the Rules of Court that allow for "Interim
Measures." Likewise, under Article 25 of the Rules of 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".
12
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
13
Ibid.

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.
33.

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.

34.

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

35.

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. icrc. 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/officialstatements/unrwa-strongly-condemns-israeli-shelling-its-school-gazaserious#.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 Casualties

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. 15

38.

There are approximately 10,000 additional refugees either wounded or

injured, many of whom are in resinous or life threatening condition. 16
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. 17

40.

It is estimated that thousands of homes have been totally destroyed and

tens of thousands have been severely damaged. 18 Up to 30 July, at least 76
families have lost three or more family members in the same incident, for a

15

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_ 20 14. pdf
16
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
17
UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
~ ttp:l/www. ochaopt. org/documents/ocha _opt_ sit rep_ 04_ 08 _ 2014. pdf
8 5,510 Gaza homes destroyed by Israel: Minister Anadolu Agency,
http://www. a a. com. tr/en/gaza/367 908--551 0-gaza-homes-destroyed-by-israel-m in ister

total of 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 of 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." 20

On 13 July, 18 family members of 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. 21

"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 of

Mohammed Ayyad Abu Taha, which is located in the AI Shabura
refugee camp in Rafah. The house was destroyed and four of 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
20
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
21
CBS News, Israel widens air 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." 22
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. 23
Displacement

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 24

45.

22

Across the Gaza Strip, nearly 270,000 refugees are crowded into 90

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
23
----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
24
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. unrwa. org/newsroom/emergency-reports/gaza-situation-report -25

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.
46.

The Ministry of Social Affairs (MoSA) estimates that the number of persons
staying with host families throughout the Gaza Strip could be as many as
200,000.

47.

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 of
Gaza. 26
Health Services

48.

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.

49.

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.

25

27

UN Office for the Coordination of Humanitarian Affairs (OCHA), Gaza Emergency Situation
Report, 3 August 2014; 1500hrs. Available at
04 08 2014.pdf
http://www.ochaopt.org/documents/ochaoptsitrep
26
--Ibid.
27
UN Office for the Coordination of 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.

The psychological impact of the ongoing hostilities is of grave concern 28

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

51.

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
Infrastructure

52.

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 11 per cent of Gaza's electricity requirements are currently being
met.31

53.

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/pressreleases/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 lor 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. pdf
31
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

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.
Water, Sanitation and Hygiene (WASH)

55.

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

56.

Water is also urgently needed for personal hygiene systems to reduce the
risk of the spread of disease, especially in overcrowded shelters 34 The lack
of electricity to pump water is a compounding factor. 35

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

32

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
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-east19391809. Quoting the UN Country Team (UNCT) in the occupied Palestinian territory report
available at http://www.unrwa.org/userfiles/file/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 iddleeasUraw-sewage-a nd-a nger-floods-gazasstreets-as-electricity-runs-low. html?pagewanted=a II &_r= 1&
35
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

among children.
58.

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
Food
60.

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

61.

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 nonfood 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 at
https://docs.unocha.org/sites/dms/Documents/USG%20Amos%20SecCo%20statement%20on%2
OGaza%20-%2031 %20J u ly%2020 14%20-%20As%20del ivered. pdf
38
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
39
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.unrwa.org/newsroom/emergency-reports/gaza-situation-report-25

such as non-refrigerated meat 40

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 41

F. PALESTINIANS WHO RESIDE IN GAZA ARE 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

of Palestinian refugees by denying them access to critically needed, indeed

lifesaving, goods, materials and services.
66.

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.

67.

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 42

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 prima facie case
of complicity in war crimes.

69.
42

Thus other than a few isolated instances over the last month in which Egypt

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 of Civilian Persons in Time of War establishes explicitly that
States have the duty to provide humanitarian aid to the civilian population under their control (nonnationals, whether free or detained, and the population of 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 treatment43 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 jus
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 of 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

43

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.
44
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." 45

G. SCOPE OF APPLICATION

73.

Before this Commission is an application which seeks an order compelling

Egypt to open the border crossing at Rafah to permit the delivery of
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

45

Of course, " ... Military considerations are often put forward to justify starvation, on the ground
that only such rigorous measures can bring the hostilities to a speedy close. The civilian nature of
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 of Egypt's obligations under
it as a member state of the African Union. In this regard Article 60 of 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 of
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) 46 and (e) 47 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.

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.

80.

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
1n 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 of 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 4

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 of 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,

to

contributing

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 of 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 12

92.

According to article 12 - (1) Every individual shall have the right to freedom
of 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.
50
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.

international conventions.
93.

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 12 of the Charter.

94.

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 representatives51 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

51

Representatives of 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 of attacks because
of the current security situation. United Nations Office for the Coordination of Humanitarian Affairs

95.

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

96.

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 of
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 20

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 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 %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/2014/080 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 20 of the Charter.
Violations of Customary International Law

100. There is an erga 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. PERMANENT 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 of 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 of 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.") 56
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.

56

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.

Date:

Stanley L. Cohen
Georges-Henri Beauthier
Sarah Kay

Of counsel

Sarah K Hogarth

On brief