Resurfacing Issues of the Arab League in Light of the Gaza War

Written by

In the complexities of the international fora and UN resolutions, regional organizations can fill in and complement the international organizations in preserving global peace and security. Article 52 of the UN Charter (1945) states that UN member states “shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council”. It is therefore noticeable that the role of regional organizations in the settlement of international disputes and in the application of international law at a regional scale is vital. Nevertheless, there is an overall decline in the Arab League as a regional organization. The Arab League consists of 22 member states, including Palestine, represented by the Palestinian Liberation Organization (“PLO”), making it the only regional organization in the Arab world. The Gaza war resurfaced the question of the League’s failure to adopt effective mechanisms for conflict resolution in particular. Despite the devastations of the Syrian civil war and other regional conflicts, the League did not seek to evolve its collective framework, which can be critical to achieving peace and security in the Middle East and North Africa region.

The success of joint diplomatic efforts in the Gaza war (2023) by Qatar, Egypt and the United States, which led to the truce agreement and the cessation of hostilities between Israel and the Islamic Resistance Movement (Hamas) on November 22, 2023 raises the issue of whether the Arab League can provide a similar and more optimizing role in resolving conflicts. Why has the Arab League failed to take influential resolutions to stop the war in Gaza? To answer this question, it is necessary to review the text of Article 5 of the Charter of the Arab League. It limits the role of the Council of the Arab League (hereafter as “the Council”) to mediation and arbitration of disputes between its member states only. However, in review of charters of other organizations, such as the United Nations, their relevant texts do not limit their mandates to member states. For instance, Article 33 of the UN Charter stipulates that “the parties to any dispute that is likely to endanger the maintenance of international peace and security should first be addressed through negotiation, mediation or other peaceful means, and states that the Council can call on the parties to use such means to settle their dispute”. Here, it is noticeable that Article 33 extended the mandate of the Security Council to conflicts that threaten international security regardless of their parties’ membership to the UN. Therefore, the Charter of the Arab League requires amendments to imply the authority of the Council to provide diplomatic means to resolve conflicts that threaten the peace and security of the Arab region without necessarily requiring the reference by member states. Although treaties are binding on state parties only, an international law principle known as pacta sunt servanda, the role of an organization in peaceful settlements is neither a right nor an obligation for the state parties. Thus, regional organizations are governed by a constitutive treaty enabling them to fulfil the objectives for which they were established. Consequently, extension of the League authority onto conflicts that involve non-member states does not breach the law of treaties. In fact, there were practices where regional organizations acted as mediators in a conflict between nonmember states. The EU, for example, mediated in the Israeli Operation Cast Lead in 2008 and Operation Protective Edge in 2014.

In addition, with regard to armed conflicts between member states, Article 6 of the Arab League Charter provides for the Council’s authority in relation to taking “necessary measures” by a two-thirds majority voting. The ambiguous term “necessary measures” may lead to paralysis in the inter-Arab decision-making system. A definition of the term is necessary. Reference can be made here to Article 41 of the UN Charter, which provides examples of “necessary measures” of the Security Council. Among the non-military measures provided under Article 41 are the “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”.  In addition, there is clearly a lack of procedural rules for such a role of the Council. In 1990, the Council made a resolution by simple majority on the Iraqi invasion of Kuwait in violation of Article 6 of the Arab League Charter, which required at the time a consensus on a resolution regarding an armed conflict (or aggression) between its member states. In 2005, the Charter was amended to request a two-third majority for a resolution of such a conflict. Yet, the procedures to take resolutions are not specified, making it technically unavailable most of the time.

More relevant to what is going on in Gaza, the Arab Charter stipulates in Article 2 the principle of preserving the sovereignty and independence of Arab States. Pursuant to this principle, the Arab Joint Defense Agreement was adopted in 1950. According to the First Additional Protocol to the Agreement on Joint Defence and Economic Cooperation: “any aggression against any signatory to the Protocol shall be considered aggression against other States”. It was in this light that the Joint Arab Defense Council (“JADC”) was established, which has not been functional since the 1974 war between Arab states and Israel. In legal theory and practice, the activation of collective defense act requires a call by the member state that is under aggression. Still, the mandate of the JADC or the Council should be extended to take action “as may be necessary” to maintain or restore regional peace and security – similar to the authority of the UN Security Council under Article 42 of the UN Charter.

A judicial organ of the League, the Arab Court of Justice (known hereafter as “ACJ” or “the Court”) was created in 1996 to settle legal disputes among member states. The Statute and rules for the ACJ were established by the Council, but the Court was never established on the ground. According to Article 11 of the ACJ Statute and rules, “only states may be parties in cases before the Court”. So, does the text of Article 11 imply admissibility of a case between a member state and a non-member state? It is unclear from textual interpretations and neither from precedents since the Court did not function yet. In all cases, the establishment of ACJ is necessary for the future of disputes between member states of the League, especially since there are several ongoing legal disputes between Arab countries.

There must also be means of punishment for international crimes, especially if in violation of jus cogens, such as war crimes, crimes against humanity and genocide. International crimes can entail the individual criminal responsibility of state representatives for involvement in such serious crimes that threaten the safety of international security. In addition to the jurisdiction of the International Criminal Court and the UN Security Council, under the rise of the universal jurisdiction principle, states can claim jurisdiction over any of jus cogens crimes. Jus cogens constitute the erga omnes obligation, which means they are non-derogable. Regardless of the perpetrators, victims or place where the crime took place, universal jurisdiction can be claimed by a state for prosecuting a jus cogens crime. Most recently, a local court, Koblenz Higher Regional Court, in Germany, has sentenced Syrian officials for crimes against humanity under the principle of universal jurisdiction. Although, the principle has yet to be widely implemented, especially in the judiciary systems of the Arab States, the principle could be a viable pathway to respect fundamental international norms and prevent impunity for their violations. That would enhance the application of international law and would deter governments, their officials, and militias from committing international crimes.

In summary, the protracted conflict in Gaza threatens sustainable peace and security in the Arab World. The need to activate regional mechanisms under the Arab League requires a fundamental revision of the Charter of the Arab League. Most notably, Article 6 of the Council of the League of Arab States is concerned. The Arab League must create a platform for inter-state dispute resolution methods, including the mechanisms for diplomatic means. In addition, the League must provide collective punitive measures as an effective means of deterring and punishing States in contravention of international law. Such measures should be limited to diplomatic and economic (non-military) measures, given the importance of avoiding regional armed conflicts in the Arab region. The reform of the Arab League must start with the establishment of methods for a peaceful resolution of disputes in the region, and this can be made through three bodies: the Council, the AJC, and the JADC.

Print Friendly, PDF & Email

Tags

Leave a Comment

Comments for this post are closed

Comments

Nicolas Boeglin says

December 6, 2023

Dear Professor Al-Hababi

Many thanks for this extremely interestinf post.

In a recent Summit between Arab League and the OIC held in Riyadh, last Nov 12, the final declaration adopted indicated that:

"Call on the Prosecutor of the International Criminal Court to complete the investigation into war crimes and crimes against humanity being committed by Israel against the Palestinian people in all the occupied Palestinian territories, including East Al-Quds. We assign the General Secretariats of the OIC and the Arab League to follow up on the implementation of this investigation and establish two specialized legal monitoring units to document Israeli crimes committed in the Gaza Strip since October 7, 2023. The units will then prepare legal proceedings on all violations of international law and international humanitarian law committed by Israel, the occupying power, against the Palestinian people in the Gaza Strip and the rest of the occupied Palestinian territories, including East Al-Quds. Each unit shall submit its report 15 days after its formation to be presented to the Arab League Council at the level of foreign ministers and to the Council of Foreign Ministers of the OIC. Subsequently, monthly reports should be submitted thereafter".

Source: full text available at of the final Declaration at:

https://derechointernacionalcr.blogspot.com/2023/11/gaza-israel-final-resolution-adopted-by.html

In your view, is there a possibility for Arab League and State Members to join this recent South Africa initiative of a collective referral to ICC Prosecutor ?

The ICC Prosecutor Office published this declaration last Nov 17:

https://www.icc-cpi.int/news/statement-prosecutor-international-criminal-court-karim-aa-khan-kc-situation-state-palestine

It is extremeley interesting to see if this Southafrican initiative will be supported by others States.

Sincerely yours

Nicolas Boeglin

Nicolas Boeglin says

December 8, 2023

Dear Professor Al-Hababi

In addition to my previous comment, may I add a short note on recent initiative of UN Secretary General (article 99 of UN Charter) used only 10 times since 1945:

https://derechointernacionalcr.blogspot.com/2023/12/gaza-israel-secretario-general-de.html

I would be interesting to see the Arab League supporting this initiative too.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

December 8, 2023

Dear Professor Al-Hababi

In addition to my previous comment, may I add a short note on recent initiative of UN Secretary General (article 99 of UN Charter) used only 10 times since 1945:

https://derechointernacionalcr.blogspot.com/2023/12/gaza-israel-secretario-general-de.html

It would be extremely interesting to see the Arab League supporting this initiative too.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

December 24, 2023

Dear Professor Al Hababi

May I share with you and our EJIl Talk colleagues a short note on the resolution S/2720(2023) adopted by UNSC on Dec.22, after long days of pressures and manoeuvres of United States ´delegates in order to guarantee to Israel no mention in the operative paragraphs to UN Charter, to "Occupying Power", and of course, allowing Israel full leeway in its military campaign in Gaza:

https://derechointernacionalcr.blogspot.com/2023/12/gaza-israel-nueva-resolucion-del.html

Sincerely yours

Nicolas Boeglin

Nicolas Boeglin says

January 21, 2024

Dear Professor Al-Hababi

In addition to my previous comment, may I add a short note on recent initiative of Mexico and Chile to ICC (joint referral):

https://derechointernacionalcr.blogspot.com/2024/01/gaza-israel-mexico-y-chile-anuncian.html

It would be extremely interesting to see the Arab League supporting this initiative too.

Yours sincerely

Nicolas Boeglin