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Egyptians and Internationals joined as plaintiffs v/s Egyptian government

28.02.2010

Egyptians and Internationals joined as plaintiffs in The Erection of Steel Barrier Wall along the Borders with Gaza and the Closure of Rafah`s Border Crossing Case.

Ibrahim Youssri Sayed Hussein, former Egyptian Ambassador to Israel and lawyer is leading lawsuit against the State of Egypt to Halt the Erection of Steel Barrier Wall along the Borders with Gaza and to Open the Rafah`s Border Crossing. Counsel Ibrahim Youssri is also the counsel for the plaintiffs. There are two MPs amongst the seven Egyptian plaintiffs. Ragini Kistnasamy, LALIT member and Gaza Freedom Marcher has joined as plaintiff together with 300 international plaintiffs to the lawsuit against the State of Egypt.
Lawsuit was to be filed on 16 February 2010.
Ms Hedy Epstein, holocaust survivor and Gaza Freedom Marcher is amongst the 300 international plaintiffs.
Below is a tentative translation of the lawsuit from Arabic into English by Professor Mohammed A. Sharaf who works at the Helwan University in Cairo, Egypt

The Erection of Steel Barrier Wall along the Borders with Gaza and the Closure of Rafah`s Border Crossing Case
(A Tentative 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 that assumes that Gaza Strip is a renegade province rebelling against the so-called Palestenian Authority. Such resumptions 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