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OPT: Rafah Crossing - Who holds the keys?

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Introduction

The Gaza Strip has been sealed almost hermetically for nearly two years, isolating its 1.5 million residents and violating their right to freedom of movement. Israel closed the Gaza Strip in a gradual process over a period of years, which included instituting an exit regime based on permits, building a fence, imposing an increasingly tight closure on the land crossings and preventing travel by air or sea.

As a result, Rafah Crossing between Gaza and Egypt has become a vital window for Gaza residents seeking to enter or leave and a crossing point connecting the Gaza Strip not only with Egypt but with the outside world in general, and even with the West Bank. During the times that regular traffic through Rafah Crossing was possible, tens of thousands of people traveled through it in both directions every month.

However, in the year between the capture of Israeli soldier Gilad Shalit (June 2006) and the Hamas takeover of the internal government in Gaza (June 2007), Israel kept Rafah Crossing closed 85% of the time; since June 2007, Rafah Crossing has been closed permanently, except for random and limited openings by Egypt, which meet only 3% of the needs of the residents of the Gaza Strip to enter and leave.

The closure of Rafah has severe implications for the residents of the Gaza Strip, including preventing access to health care services that are not available in Gaza, preventing access to opportunities for academic studies or employment abroad or in the West Bank, forcing long separations of family members on either side of the border, causing fatal damage to commerce and business, and creating a growing feeling among residents of the Gaza Strip that they are enclosed, isolated and trapped. The closure, of course, means a real inability to leave the Gaza Strip, even under circumstances of mortal danger.

It is the closure of Rafah Crossing that is causing these severe violations of the rights of residents of the Gaza Strip, and therefore those responsible for closing it bear responsibility for those violations. Since Israel withdrew from the Gaza Strip in 2005, including from the Gaza-Egypt border, it is hard to point to a single party that is exclusively responsible for the closure of Rafah Crossing. Several parties are involved in control of the crossing to various extents: Israel, Egypt, the Hamas regime in the Gaza Strip and the Palestinian Authority (PA). Each one of those parties is shirking its responsibility and pointing an accusatory finger at the others for closing the crossing. The result is that 1.5 million residents of the Gaza Strip are denied access to the outside world, apparently without anyone bearing responsibility.

The purpose of this report is to dispel the haze and lack of transparency, and to answer the question: who is closing Rafah Crossing, and who is therefore responsible for the resulting violation of the rights of the residents of the Gaza Strip?

In order to answer that question, the report begins with a factual section, including a comprehensive review of the policy regarding Rafah Crossing and the other Gaza Strip crossings over the years, the various arrangements under which Rafah Crossing operated, data on the passengers who crossed through it until the end of December 2008, and then the heart of the matter -the severe implications of the closure of Rafah for the residents of the Gaza Strip, and primarily their access to adequate health care services. In this respect, the spotlight is aimed primarily at the implications of the restrictions on the freedom of movement of people, but to a certain degree it also sheds light on the grave impact of the restrictions on the passage of goods into the Gaza Strip. Likewise, the report presents a detailed description of the positions of the various parties regarding Rafah Crossing, the extent to which the various parties control the crossing, the merging of interests behind its closure and the political conflicts that are undermining attempts to re-open it. The report is based on field research, information from Israeli authorities, including information presented to the Israeli Supreme Court, information from Palestinian and international organizations, and meetings and correspondence with relevant officials in Israel, Egypt, Gaza and the West Bank.

On the basis of the facts, presented as is and without interpretation, we offer an analysis of the legal responsibility of the various parties. The analysis is based on the obligations of each party under international law and on the principle that the extent of control exerted by each party dictates the extent of its responsibility for the crossing and for the implications of its closure.

The analysis focuses mainly on Israel's responsibility for the freedom of movement of the residents of Gaza, for two reasons: first, control of Rafah Crossing must be seen in the context of Israel's control of all the other crossing points of the Gaza Strip - land, air and sea - which make Gaza a "land-locked" territory, dependent on Rafah Crossing for contact with the outside world. That control has significant implications for Israel's responsibility for Rafah Crossing. Gisha - Legal Center for Freedom of Movement (Gisha) and Physicians for Human Rights-Israel (PHR-Israel) take the position that Israel continues to constitute an occupying power in the Gaza Strip, because it controls significant aspects of life in Gaza, including its borders, the Palestinian population registry, the tax system and the funding of public services; therefore, we ascribe to it increased responsibility for the freedom of movement of the residents of the Gaza Strip. Second, as Israeli organizations, we see it as our primary responsibility to make recommendations and demands of the authorities of the state in which we are acting and to whose institutions we have access. Simultaneously, we analyze the responsibility of the other parties - mainly Egypt, the Palestinian Authority (PA) and Hamas - for blocking access of Gaza residents to the outside world, and we make demands on them accordingly. We invite readers of the report to offer their own analysis and conclusions, on the basis of the facts detailed in the report, and, on the basis of their conclusions, to address the appropriate authorities with their own recommendations and demands. To that end, we present our analysis separately from the historic and factual background (chapters 1 and 2), and the presentation of the parties' positions (chapter 5). A copy of this report was sent to the relevant authorities. A response from the Palestinian Authority is included as Appendix 2 to this report. The other parties chose not to send a response for purposes of publication in this report.

Israeli authorities and other parties tend to treat the closure of Gaza as a political issue; Gisha and PHR-Israel stress that the right of the residents of the Gaza Strip to leave and enter the territory in which they live is not a political issue but a basic right, which the parties who exert control over Rafah Crossing are obligated to respect and safeguard. The various parties - mainly Israel, Egypt, the PA and Hamas - should be held accountable for the violation of the rights of the residents of the Gaza Strip and are asked to take concrete action to bring about the opening of the crossing, placing the rights of the residents of the Gaza Strip at the top of their priorities and transcending the political interests or conflicts that are presently perpetuating the closure of the crossing. They may choose the arrangements under which they discharge their obligation to allow traffic between Gaza and the outside world, but the very obligation to do so is not subject to political discretion.

This report focuses on Rafah, in order to clarify and shed light on the complicated and unique circumstances of the control over that crossing, in contrast with the other Gaza Strip crossings, which are directly and exclusively controlled by Israel. However, our main concern in issuing this report is the freedom of movement of the residents of the Gaza Strip and their access to and from the outside world. Those rights can be realized through Rafah Crossing, but they can and should also be realized through the other Gaza Strip crossings, including via the sea and air space and the land crossings with Israel.

In that spirit the report also addresses local and foreign policymakers as they set out to make future arrangements for Rafah Crossing and the other Gaza Strip crossings: the previous arrangements allowed the frequent closure of Rafah Crossing and led to an ongoing violation of the rights of the residents of the Gaza Strip, and therefore-they should not be reinstated. Any future arrangement must first and foremost ensure respect for the rights of the residents of Gaza, including the right to freedom of movement, and give residents regular, easy and convenient access to other countries and to the West Bank.