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.
