The Erection of Steel Barrier Wall along the Borders with

Gaza and the Cosure of Rafah’s Border Crossing Case

(A Tentive Translation by M. A. Sharaf)

Ibrahim Youssri Sayed Hassan

Telephone: +20 12 310 1965

Counsel for Plaintiffs

ARAB REPUBLIC OF EGYPT

STATE COUNCIL
JUDICIAL ADMINISTRATIVE COURT

1. Ibrahim Youssri Sayed Hussein, on behalf of himself and counsel for the plaintiffs.
Mahmoud Reda Al Khodeiry
2. George Ishaq
3. Abdel-Galil Mostafa
4. Hamdeen Sabahi, MP
5. Saad Abboud, MP
6. Hamdy Kandil
7. Ibrhim Mostafa Zahran
……………………………….
and a class of nearly 300 plaintiffs, and ……………………….
1. Abbas Ali UK
2. David Paul Sowder US
3. Dennis DuVall US
4. Elfi Padovan German
5. Ellen Anne Rosser US
6. Ellen M Graves US
7. Gael Ruth Murphy US
8. Gehan Fahima Abdel-Hafiz US
9. Gunter Wimmer German
10. Hedy Epstein US
11. John Porter UK
12. Judethe Ann Allen US
13. Kenneth Robert Imrie UK
14. Louana Bourke Irish
15. Marie Ponchelet France
16. Medea Susan Benjami US
17. Michael Joseph Napier UK
18. Omair Manzour UK
19. Patricia Paki Wieland US
20. Priscilla Lynch US
21. Ruth Fergusson Hooke US
22. Thomas Gerrard McVitte UK
23. Tighe Dennis Barry US
24. Warren Allan Biggs UK
25. Yvonne Anne Ridley UK

Plaintiffs,

V.

The President of the Arab Republic of Egypt

The Minister of Foreign Affairs of the Republic of Egypt
The Minister of Defense of the Arab Republic of Egypt
The Minister of Interiors of the Arab Republic of Egypt
Commander of the Rafah’s Border Crossing, Rafah, Governorate of North Sinai.

Case No. ……….

 NATURE OF THE CASE AND STATEMENT OF FACTUAL
ALLEGATIONS
It is unfortunate to witness an uncalled for motion by the Egyptian government that is
lacking, in all the sense of the word, any justification that is categorically,
comprehensively, and completely rejected by a spectrum of all political forces and civil
society organizations and individual citizens. The Egyptian government mandated a
decree to construct a steel barrier wall separating Egypt and Gaza Strip, reaching a
depth of 30 meters under the ground and 20 meters high above, and extending more
than 10 kilometers along the border. The irony, the wall does not extend along the
whole eastern Egyptian borders including a 200 km stretch with Israel. Beyond any
doubt, the act unequivocally and strangely enough, reveals that Egypt’s fears and its
proclaimed heightened anxieties of national security are limited only to its 13 kilometers
borders with Gaza rather than the whole border stretch including the longest section
with Israel.
Since the Gaza Holocaust, the Egyptian government as represented in this suit by its
declared defendants, in their respective executive capacities, have been the subject of
indignation by the by the Egyptian and the Arab people and all the free people of the
world for its decision on the nearly permanent closure of the Rafah’s border crossing
between Egypt and Palestinian Gaza Strip. This flagrant act is viewed as complete
succumbing in to Israel’s and the United States of America’s scheme and agenda in
imposing a total blockade on the people in Gaza. In addition, the decisions of opening of
the crossing are rather irregular, abrupt, and arbitrary in manner and goes under
pretexts of national security priorities and on several occasions they cite Egyptian
sovereignty rights.
This categorical and precarious ostensibility in dealing with the Rafah’s crossing has
resulted in catastrophic consequences and flagrant violations of international law and
the Constitution and laws of Egypt, among them and the least to mention:

FIRST CAUSE OF ACTION

Erection of the Separating Barrier Wall is a Violation of the Profound Principles of
International Law

The construction of the barrier steel wall along the Egyptian-Gaza border stretch
represents a violation of international humanitarian law and human rights (that is not
only limited to the people of Gaza, but also to Egyptians and to all human beings
regardless of their nationalities, including non conformity with:

The den Hague Rules of 1907 and the Fourth Geneva Convention of 1949 and
precedents serving as standards in the international law that had been endorsed by the
precedents in the International Court of Justice in den Hague regarding the separation
wall erected by Israel to separate their forced predesignated borders from the occupied
Palestinian areas, particularly as regards the following rights:

The right to food: Israel is committed to providing the occupied territories with food,
water, medicines, and means of medical treatment, in accordance with Article 55 of the
Fourth Geneva Convention. None the less, Gaza is it perpetually continues to keep
Gaza under-siege and bars the entry of such aid, even the aid sent from foreign
countries.

This right is also stated unambiguously in Articles 11, 24, and 27 of the UN International
Covenant on Economic, Social, and Cultural Rights and Articles 12 and 25 of the
Universal Declaration of Human Rights.

The right for ownership: The construction of the Egyptian Wall violates the right to
property ownership, as enshrined in Article 46 of the Fourth Geneva Convention and
Article 17 of the Universal Declaration of Human Rights. Agricultural land adjacent to
the Wall will be harmed, where and groundwater reservoir used for irrigation will be
polluted. The International Court of Justice ruled that the erection of the Israeli Barrier
wall could not justified under pretexts of security or military necessities

There are apparent there signs of landslides that started to show on the course of
drilling (digging) of the steel wall on the Egyptian side of the borders with the besieged
Gaza Strip.

In this connection, we refer to what eye witnesses reported about a virtual collapse of
the drainage wells in the area north of Salah Elddin Gate after the drilling equipment
has reached that section. A preliminary trench had been dug to continue the
construction work of the barrier wall to stop activities in the underground tunnels across
the border, but work came to an abrupt stand still in that region, according to local
eyewitnesses report.

The locals also pointed to the existence of a marked landslide in an area few meters
away from a housing block. Northern Sinai local government bodies had surveyed the
block to have an initial inventory of existing buildings just a week before.

Water experts on the other hand have warned of a humanitarian catastrophe to be

incurred on the Gazan populace emanating from Egypt’s construction of the steel wall
on the borders with Gaza Strip. Experts claim that such a construction constitutes a
strategic threat to the underground water reservoir engulfing Gaza. Inadvertently, the
wall will result in economic and water resources blockades against Gaza.

It has been reported by the Palestinian “Alquds” (Jerusalem) newspaper that the
construction of the wall is, in effect, a resemblance of the water traps dug underground
by Israeli occupation on the eastern and northern Gaza borders, and thus constitutes an
additional blockade of water resources on the Gaza Strip. It had been also reported that
the underground reservoir on the southern border of the Gaza Strip is a common and
overlaps, and mitigates across the border with the Egyptian neighboring one. In
consequence, the wall is in essence an artificial barrier that had been politically
motivated and would have grave environmental impact on the constant and
unhampered flow of water. Noteworthy here is the fact that the steel wall will reach a
depth of 30 meters underground.

Experts also note that the underground reservoir (aquifer) will also be vulnerable to
seepage of saline sea water as a direct result of the erosions and dislocations in the
rocks at the bottom of the aquifer resulting from deep intrusion of iron sheathings.

Experts emphasized that projects implemented in this manner are not advisable and
certainly have significantly adverse environmental impact. In addition, Palestinians will
resort to deeper digging. In practice, this would be impossible in most of the border’s
areas owing to the presence of ground water at such depths. Beyond any doubt,
establishment of such a wall would affect the quality of ground water, in both medium
and long foreseen terms. Contamination becomes omnipotent because of the ease of
transport of pollutants into the aquifer as a result of the disturbance in the soil and the
inadvertent lack of its cohesion. Noteworthy here, the corrosion of the wall is eminent,
specifically, owing to the wet and damp environment and that will lead to diffusion of
heavy metal ions and pollution of the underground aquifer.

Environmental experts, all around, have vocally called for an immediate intervention to
protect the aquifer in Gaza from further deterioration and additional pollution.

It is also worth mentioning here that the Israeli occupation, few years ago, announced a
public tender for the construction of a canal (channel) or a ditch along the border
between occupied Rafah and the Egyptian section of Rafah that would has been
supposedly filled with seawater and ranging between 50 meters and 100 meters width,
and a 10 meters to 15 meters depth. However, this project had been shelved at the time
on grounds of practical obstacles and handicaps, as well as the strong Egyptian
objections.

The right to freedom of movement. This barrier wall violates the right of the
Palestinians, the Egyptians, and citizens of other nationalities in movement that has
been provided for in Article 13-1 of the Universal Declaration of Human Rights and
Article 12-3 of the UN International Covenant on Civil and Political Rights.

The right to asylum: The right to asylum is regulated by the framework of the United
Nations conventions on refugees, including:

1. Convention Relating to the Status of Refugees, adopted on July 28, 1951.

2. Protocol Relating to the Status of Refugees, adopted on January 31, 1967.
 3. United Nations Declaration on Territorial Asylum of December 14, 1967.

4. Convention Relating to the Status of Stateless Persons adopted in September

28, 1954 and in August 30, 1961.

5. Geneva Convention IV Relative to the Protection of Civilian Persons in Time of

War, adopted on August 12, 1949.

6. Additional Protocol II to the Geneva Convention IV Relating to the Protection of

Victims of Non-International Armed Conflicts, of June 8, 1977.

SECOND CAUSE OF ACTION

The Steel Wall Barrier and the Closure of the Rafah’s Border Crossing Represent
a Violation of Egyptian Commitments and Obligations Ratified and Enacted by its
Arabic Conventions and Treaties

The current Egyptian actions represent:

1. A flagrant violation of Egypt's obligations as had been ratified in the Charter of the
League of Arab States and the joint defense agreement and economic cooperation,
and other treaties ratified by Egypt and once ratified became binding and an integral
part of Egyptian legislation in force, and
2. A clear violation of the rules of international law and principles of the Charter of the
United Nations and international conventions, covenants, and treaties that are
ratified and took force by all States. Such violations calls for an international
responsibility and accountability; for such conventions mandate the establishment of
peaceful relations between nations and prohibits economic sanctions, unless only
enacted by the United Nations, after the exhaustion of all negotiating and
reconciliation steps, provided in the Charter. Just a reminder, the United Nations
Charter is an integral part of the Egyptian home legislation. The ostensible
enforcement of a blockade on the Gaza Strip is in violation of the rules of
international law and UN Charter. Relevant here is the fact that the governing
authority in Gaza did not commit any act of hostility that would aggravate and call on
Egypt to impose sanctions that are to be governed by statutes of limitations that are
largely indoctrinated in the specific rules and procedures clearly defined in
international relations.
3. It is unfortunate that Egypt has abrogated its leading Arabic role in defending Arabic
rights and the legitimate rights of the people of Palestine for which it went to war for
it in 1956, 1967 and 1973. In complete reversal, and without remorse, Egypt is now
 ostensibly involved and willful partner in the implementation of Israel's policy of
blockading and isolating Gaza from the rest of the world.
4. It is both ironic and regrettable that the timing of such acts coincides with the
anniversary of the Gaza holocaust that devastated the Gaza Strip, and resulted in
grave killings of thousands of its children and women and left them homeless,
starving, and they were denied all basic human rights including the right to medical
treatment, access to medication, and infants formulae. Israel mounted reprehensible
war of aggression on Gaza, without any justifications. In its war pitch, Israel staged a
perpetual war employing its sophisticated range of armory, fighter bombers, tanks, a
barrage of missiles, and incinerating white phosphorous bombs to the dismay of
human conscience worldwide. The South African, albeit Jewish, judge Goldstone
could not condone or conceive what transpired and scathingly condemned Israel’s
war crimes in Gaza in his report.
5. The Egyptian legal system and the international agreements between Egypt, Israel,
the United States, the European Union and the International Quartet are all devoid of
any justification or grounds for the ostensible imposition of such stifling and deadly
blockade against our brethren in Gaza. Above all, Egypt is not bound or adherent to
any agreements on the Rafah’s Crossing, on the Egyptian side of the border, and
were not a party in it, an incongruity with its Arabic and religious commitments and
obligations.
6. With a deep heartfelt sorrow, Egypt sided with the Israeli and American positions to
punish Gaza Strip for the sake of placating a the fictitious Palestinian Authority that
is a nonexistent or represents a sovereign international body in international law.
The PA operates on profiteering and squandering millions of dollars that are
outpouring, from the United States and Europe, and end in the pockets of members
of that alleged authority. The fictitious authority receives significant support of arms
cache and police training and whose security forces are commandeered by General
Dayton whose forces categorically torture resistance fighters merely to appease
Israel.
7. The Egyptian government acts on a hollow presumption in imposing its blockade thst
assumes that Gaza Strip is a renegade province rebelling against the so-called
Palestenian Authority. Such presumptions are seriously flawed and need a carefull
thorough reexamination in view of recent developments and established realities.
The fact of the matter is that Gaza meet all the criteria required to be recognized as
a sovereign state. The criteria is summarized as the existence of a specific territory,
inhabiting people, and a managing government. Thus, arbitrary perceptions that
Gaza is renegade province rebelling against the central authority are unwarranted
and would not be upheld under as many international and legal considerations.
8. The Egyptian stance towards Gaza Strip is founded on the flawed presumption that
the so-called Palestinian Authority in Ramallah, is regarded by international law as
sovereign state. In fact, it is no more than administrative units to whom the
occupation relegated managing the affairs of the occupied territory; and thus does
not have any sort of independence or sovereignty over its territory, for it is fully
subservient to the occupation authority. According to this scheme, the alleged
Palestenian Authority is not mandated to enact any sovereign decisions and cannot
prevent frequent incursions by Israeli troops in the occupied territories targeting and
killing Palestinian citizens, razing homes and dwellings, and establishing settlements
while the so-called PA remains passively witnessing and unable to utter a single
word of objections to those grave highly handed Israeli practices and violations, and
9. Beyond any reasonable doubt, Egypt is joining forces in the blockade of Gaza with
Israel, the United States, and the European Union, in an attempt to help impose
implementation of the Zionist project of a settlement to the conflict that ultimately
comprises a flawed Palestinian entity on the remnants of the land of Palestine
occupied since June 5, 1967. Such a model is in close resemblance of the abolished
apartheid rule in South Africa. The sought after entity will have no army, no
independent foreign policy, and even no sovereignty over its airspace. This
designated scheme is incongruent to the Security Council and General Assembly of
the United Nations, and Arab summit resolutions as well as the Arab Peace Initiative
adopted in Beirut’s Arab Summit, that has been proposed by Saudi Arabia. Last but
not least, the main aim of this apartheid model eyes the eradication and annulations
of all the Palestinian Arab entity and presence in Jerusalem, the preeminent
demolition of the holy shrine Alaqsa mosque, and the establishment of an ethnically
pure Jewish state on the Palestinian soil, and
In addition to the fact that the siege of Gaza is in violation of the principles of
international law and the provisions of the United Nations Charter that stipulated the
right to self-determination, and the provisions of the Geneva IV Convention that
clearly define the authorities of the occupation and their obligations safeguard the
occupied territories entities, prohibits any squander of its wealth, the forced
deportation and killing of its inhabitants, and torture. The International Covenant on
Civil and Political Rights states in its first article that:
1. All people are entitled to the right of self-determination. By this virtue people
are free to determine their political system and are free to pursue their
economic, social, and cultural development, as they deem fit.
2. All people, in their pursuance of their own goals, are free to dispose of their
own natural wealth and resources without infringing on any obligations arising
out of considerations for international economic cooperation based on the
principle of mutual benefit and international law. Under no circumstances,
people cannot be deprived of their means of subsistence.
 THIRD CAUSE OF ACTION
Violation of the Steel Barrier Wall and the Closure of the Rafah’s Border Crossing
to the Egyptian Constitution and Egyptian Laws in Force

1. The ostensible Egyptian blockade of Gaza and the closure of the Rafah’s crossing is
contrary to profound principles affirmed in the preamble to our Constitution of the
land, which states in its first article that: “Peace based on justice and that political
and social progress for all people cannot be carried out unless those people are free
and at its own independent will, and that any civilization cannot be worthy of its
name unless it is free from exploitation whatever its form.''
2. The siege of Gaza is also contrary to our Arabic commitments and obligations that
had been affirmed in paragraph II of the preamble to the Constitution that stipulate:
“With certitude, our Arab nation recognizes that the Arab unity is a call emanating
from our history and a call to our future, a necessity to our fate, and can only be
achieved in the protection of an Arab nation that is capable of warding off any threat,
whatever its source and whatever its proclaimed allegations”.
3. It is enshrined in the Preamble to our Constitution, in its fourth article, the
significance of Egyptian people entitlement to freedom and pride and how that is
paramount to development and commensurate with the high ideals to be espoused.
So, the restrictions ostensibly imposed and the Closure of the Rafah’s Border
Crossing represents a derogatory assault on the freedom and pride of the Egyptian
citizenry.
4. The decisions to close the Rafah’s Crossing are at variance with stipulations of
Article I of the Constitution that: “Egyptian people are part of the Arab nation and
they work for the realization of aspirations for its comprehensive unity. Hereby are
the resolutions of the closure of the Rafah’s Crossing are at clear and candid odds
with our Arabic commitments encompassing efforts to realize comprehensive Arab
unity”
5. Article 50 of the Constitution states that: “It is reprehensive to prohibit or deny any
citizen entitlement to reside in any specific location or be mandated to reside in a
particular place, except in cases specifically stipulated in the law.”
According to Article 51 of the Constitution, Such rights and entitlements are
breached by decisions of closure of the Rafah’s Crossing that are, in consequence,
resulting in the deprivation of an Egyptian citizen, who happens to be visiting the
Gaza Strip, from his return to Egypt for indefinite prolonged durations and subject
him to bureaucratic banning restrictions denying him of his constitutional right for
return, and leave him subjected to consequential material and moral losses
6. The closure of the crossing and the persistent siege of Gaza breach the explicit
commitments set forth in the Covenant on Civil and Political Rights to which Egypt is
a signatory and had already after being ratified become an integral part of the
national legislation, according to Article 151 of the Egyptian Constitution.
a. Article 2 of the Covenant provides that “the State shall respect the rights of all
individuals residing on its land, without any discrimination as to race, color,
sex, language, religion, political or nonpolitical opinions, national or social
origin, wealth, social background, or any other reasons.''
b. Article 12 of the Covenant prohibits imposition of restrictions on the right to
liberty of movement and freedom for choice of residence, or the freedom to
leave any country including his own. No one shall be deprived arbitrarily of
the right to enter his own country. Such obligations apply to the State of Egypt
in the case of an Egyptian who wishes to enter the Gaza Strip or return from.
By the same token, it also applies in the case of the Palestinians stranded at
the Egyptian borders and deprived entry to Gaza.
7. The law provides rules of entry and exit to Egyptians and other nationals, whereby
such regulations apply uniformly to all air and seaports. The law does not justify
arbitrary application of the rules. Whatever applies to the Cairo Airport, Sharm El
Sheikh Airport, Salloum Border Crossing, and several border crossings with Sudan
should also apply to the Rafah’s Crossing. It is not justifiable to invoke arguments
and pretexts citing security consideration to single out a certain border crossing for
arbitrary and precarious aggravations, for the security system is one and indivisible
one, and certainly this is a universally acknowledged security rule.
8. Israel, on previous occasions, has tried before to change the name of its rigorous
network of barrier walls in the West Bank from a security wall to an anti-terror wall. In
this connection, the Egyptian authorities resort to name of the steel wall as
engineering constructions is inconceivable. Whatever the alleged name given, it
does not change the fact that a steel barrier is being erected between Egypt and
Gaza

CNCLUDING REMARKS

For all the Preceding Causations and Allegations, and

With all the admissible details we will show concerning annulations of the void
administrative decisions issued as regards the erection of the steel barrier wall and
those that impose severe restrictions on entry and exit at Rafah’s Border Crossing.
These administrative orders and decrees violate the Constitution and law and are
inherently arbitrary selectivity and implies uncalled for bias. These administrative
 orders represent a flagrant denial and deviation to Egypt's national and Arab
commitment. Also, it inflicts gross damage to Egypt’s foreign and Arabic relations
and interests. The security allegation or invocations of sovereign rights as alibis of
such violations have been flatly rejected by the International Court of Justice. In
consequence, Egypt has to conform to international obligations that prohibit erection
of such a steel barrier wall and the closure the Rafah’s border citing security
concerns or sovereign rights

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs, on behalf of themselves, pray for the following relief:
1. Accept and certify this case as a class action.
2. Enter a permanent injunctive relief;
a. Restrain the implementation of the administrative decision of the steel barrier
wall along the borders with Gaza
b. Restrain resolutions that required the closure of the Rafah’s border crossing
and the precarious and ostensible application of restrictions and the
imposition of exceptional measures. The plaintiffs request application of
measures at the Rafah’s crossing that are in conformity with those applied at
other Egyptian land, air, and sea ports, and
3. The plaintiffs ask this court to enter relief declaring annulations of those
administrative orders mandating erection of the steel barrier wall and closure the
Rafah border crossing and an injunction for equal treated in the same manner
applicable at all other ports of the country, with whatever consequential effects
that follows.
4. Award plaintiffs the full costs and attorneys’ fees arising out of this action, and
5. Such other and further relief as this Court may deem just and appropriate.

Dated: January 4, 2010

Ibrahim Youssri

By: _________________________
Ibrahim Youssri Sayed Hussein
Attorney for Plaintiffs