[R-G] All Eyes on Rafah

[Yoshie Furuhashi]

<http://weekly.ahram.org.eg/2009/929/eg12.htm>
All eyes on Rafah
Egypt is under pressure to open the only exit from Gaza not under
Israeli control. Amira Howeidy examines the legalities and symbolism
of the Rafah border crossing

The Egyptian government has adopted a defensive posture since its
decision to keep the Rafah border crossing closed came under attack as
Israel's war on Gaza, begun on 27 December, escalated. In the course
of a week President Hosni Mubarak addressed the issue twice. He said
that Egypt will not open the border because Gaza is an occupied
territory and remains, therefore, the responsibility of Israel, the
occupying force. A few days later he said that Egypt would not open
the border "in the absence of the Palestinian Authority and European
monitors", a reference to the 2005 border agreement formulated between
the Palestinian Authority (PA) and Israel a year before the 2006
Palestinian parliamentary elections brought Hamas to power. The
agreement expired a year after it went into effect and has not been
renewed since.

The Rafah border crossing on the 14km Egypt-Gaza border has come to
epitomise the geopolitical realities between Egypt and the occupied
Palestinian territories -- with all their security and legal
complexities -- as never before. Since Hamas took control of Gaza in
June 2007 the Egyptian-Gaza borders have been free of any Israeli
presence for the first time since 1967. This immediately posed a
complex problem for the Egyptian regime. It was exacerbated when
Israel imposed a strict economic siege on Gaza both as a punishment
for Gazans having elected Hamas in free and fair elections, and as a
tactic to remove it from power. The Rafah border crossing, the Gazans'
only gateway to the world that isn't controlled by their occupier,
inevitably emerged as a symbol for the latest stage of the 60-year-old
conflict, serving as a litmus test of Egypt's relations with the three
parties on the other side of the border, Hamas, the PA and Israel.

As Egypt's critics began to call on the regime to consider
international humanitarian law when approaching the border issue,
Cairo's decision to keep the crossing closed has remained in essence a
political one however many legal arguments are adopted to defend it.

The Fourth Geneva Convention is constantly being waved before Egyptian
officials. As a signatory, Egypt is obliged to protect civilians
during times of war and foreign occupation. Since the convention
considers "collective punishment" -- which clearly applies to Israel's
brutal 18-month- old siege and the humanitarian crisis it has provoked
-- a war crime, Egypt is doubly obliged, under the convention, to keep
the border with Gaza open to provide protection for its civilians. By
keeping the Rafah border crossing closed as the war ensues Egypt is
"contributing to a war crime", says Ahmed Mekki, deputy chief of the
Court of Cassation.

"By insisting to coordinate border movements and traffic with the
occupier, which is Israel," argues Mekki, "[Egypt] is effectively
recognising an occupation that is, by default, illegal and
illegitimate." From a strictly legal viewpoint he says that "the
Egyptian side of the Rafah border is under Egypt's full sovereignty"
and "anyone who disputes that is undermining Egypt's sovereignty over
its borders".

Israel's onslaught against Gaza has placed the Rafah border, and by
default Egypt, at the centre of the conflict. For one thing, if Egypt
opens the crossing while Hamas controls Gaza, it automatically
translates into a new political reality, a de facto recognition of
Hamas's legitimacy. If Egypt opens the crossing while Israel continues
its siege of Gaza Cairo will be practically rendering the siege
futile. In other words, the political decision to open or close the
Rafah border crossing will to some extent determine the balance
between Israel's project of occupation and Hamas's resistance to that
occupation.

The legal debates over the crossing are hardly new. Last November a
group of lawyers, activists and members of parliament filed a
complaint with the Court of Administrative Justice when the
authorities blocked two Egyptian relief convoys from travelling to
Rafah. The court upheld the plaintiffs complaint. A judgement
delivered on 11 November 2008 upheld the plaintiffs' free movement
within Egypt to Rafah and their right to "deliver humanitarian
assistance to Gaza's besieged people". The government immediately
appealed the ruling.

Judges, and not political activists, have emerged at the forefront of
popular efforts to end the boycott of Gaza. The Campaign to Break the
Siege on Gaza, formed last year, is headed by Mahmoud El-Khodeiri,
ex-president of Alexandria's Judges Club. Egypt's Judges Club issued
its own statement in February 2008 declaring the closure of the Rafah
crossing "a crime against humanity".

According to the independent Al-Zaytouna Research Centre, based in the
occupied territories, Egypt opens the crossing for an average of six
out of every 128 days. It predicted in a paper issued on 30 December
that "it is a matter of time" before the Palestinian people make their
way through the Rafah border crossing, a reminder of the events of 24
January 2008 when thousands of hungry Palestinians breached the border
with Egypt and stormed into the city of Arish to buy food and medical
supplies.

As Israel's carnage continues and the death toll among civilians
grows, human rights and international humanitarian groups are
increasingly speaking out against the situation.

On Monday António Guterres, the UN High Commissioner for Refugees
(UNHCR), reminded Gaza's "neighbouring states" of their
"responsibility to provide access to safety for those civilians
fleeing violence". According to diplomatic sources, the UNHCR brought
up the issue verbally -- though not in writing -- with the Egyptian
diplomatic mission in Geneva where the UN agency is based.

On Monday Egypt's chief of General Intelligence officer began talks
with Hamas representatives for the first time since the Israeli war on
Gaza. A crucial point in the talks, Al-Ahram Weekly has learned, is a
slightly modified border arrangement of the expired 2005 agreement
that could include representatives of the Hamas government together
with the PA and foreign observers at the crossing.