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Can Conflicts be Solved Without Religion? Limitation of Secular Pathways of Conflict Resolution in the Middle East

Yisrael Meir Lau, the Chief Ashkenazi Rabbi of Israel Rabbi, in Cairo. In 1998, the United
Nations General Assembly announced 2001 as the “year of the United Nations for the
Dialogue of Civilisations”. Similarly, instead of traditional narration of ‘peace through
religion alone’ and secular narration of ‘peace without religion’, Funk and Woolner argued
for a flexible approach for making ‘peace with religion’459. Funk and Woolner recognised the
potentiality of religions in bringing world peace and argued for the active involvement of
religious actors and institutions in peacebuilding.

The literature on the potentiality of religion in the conflict resolution identifies its
various advantages. One is the moral superiority of religious leaders and institutions in
society. Former UN Secretary-General Kofi Annan affirmed in his report on prevention of
armed conflicts that, “religious organisations can play a role in preventing armed conflict
because of the moral authority that they carry in many communities”460. David Little and
Scott Appleby461 identify various advantages of religious actors and institutions in a conflict
resolution. They include reputation among masses which was achieved through direct and
constant relationship and charitable work. The independence of religion from the state
provides moral superiority to religious actors even when state institutions are viewed by
people as illegitimate. Religious actors also have experience of living among people. Above
all, even when central authority is failed and broken down, religion may remain as a powerful
entity. Little462 also analyses advantage of religious-based actors in peace-making such as the
influence of local religious leaders, the role of religion in shaping personal identity, peace
education and foundation for ending conflict and sustaining peace, use of religion in debate
and finding common ground, use of religious and cultural rituals and traditions, use of
religious texts, creating philosophies of non-violence and zone of peace, awakening the
global community. Bouta, Kadayifci-Orellana and Abu-Nimer also figure out various
advantages of faith-based actors in peacebuilding463.

Johnston identifies many attributes of religious actors and institutions, which will be
helpful in peacebuilding and reconciliation. They include

credibility as a trusted institution; a respected set of values; moral warrants for
opposing injustice on the part of governments; unique leverage for promoting reconciliation
among conflicting parties, including an ability to rehumanise situations that have become
dehumanised over the course of protracted conflict; a capability to mobilise community,
nation, and international support for a peace process; an ability to follow through locally in
the wake of a political settlement; and a sense of calling that often inspires perseverance in
the face of major, otherwise debilitating, obstacles464.

Another advantage of religion is the role of religion in shaping the cultural atmosphere
for conflict resolution. According to Bridget Moix, religion has a significant role in shaping

459 Nathan C. Funk and Christina J. Woolner, "Religion and peace and conflict studies," in Critical Issues in
Peace and Conflict Studies: Theory, Practice, and Pedagogy Critical Issues in Peace and Conflict Studies:
Theory, Practice, Pedagogy , eds. T. Matyók, J. Senehi, and S. Byrne (Plymouth: Lexington Books, 2011): 349-
370.
460 David Little, ed., Peacemakers in Action: Profiles of Religion in Conflict Resolution, (Cambridge and New
York: Cambridge University Press, 2007), 4.
461 David Little and Scott Appleby. "A moment of opportunity: The Promise of Religious Peacebuilding in an
Era of Religious and Ethnic Conflict”," in Religion and Peacebuilding, eds. H. Coward and G. Smith (New
York: State University of New York Press, 2004): 3.
462 Little, ed., Peacemakers in Action.
463 Tsjeard Bouta, S. Ayse Kadayifci-Orellana, and Mohammed Abu-Nimer, Faith-based peace-building:
Mapping and analysis of Christian, Muslim and multi-faith actors, (The Hague: Netherlands institute of
international relations', 2005), 36.
464 Cited in David R. Smock, ed. Religious contributions to peacemaking: When religion brings peace, not war
(Washington, DC: United States Institute of Peace, 2006), 2.

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the surroundings of conflict and creating a social and cultural atmosphere465. According to
Moix, while religion does not play a direct role in conflict nor conflict resolution, it plays the
role of ‘third side’ party. Moix quotes William Ury to define ‘third side’ as “the surrounding
community, which serves as a container for any escalating conflict”466. Dragovic pointed out
that religion can contribute to public security since it builds social ties, establishes and
socialises values and adjudicates and mediates disputes467. Silvestri and Mayall468 also have
explained the role of religious beliefs, practices, leaders and organisations in the
peacebuilding process.

Religious values and principles can contribute to conflict resolution. Judy Carter and
Gordon S. Smith argue that “The world’s religions all preach peace. They all advocate a
social code resembling the golden rule: Do unto others as you would have them do unto you.
They all regard as virtues kindness, charity, compassion, honesty, fairness, justice, equality,
tolerance, respect, non-violence, humility, forbearance, self-discipline, moderation, and
forgiveness”469. Stempel470, Smock471472473, Bercovitch and Kadayifci-Orellana474 and Said
and Funk475 are also supporters of the idea that world religions contain many principles those
are helpful in the conflict resolution process. Similarly, David Steele figured out various
religious values that will be helpful in reconciliation processes such as grief and trauma
healing, hospitality, confession/apology, justice and forgiveness476. He also has identified the
role of religious actors in observation and witness, education and formation, advocacy and
empowerment, conciliation and mediation. The challenge is, as Carter and Smith contended,
“to integrate the wisdom, spirit, and techniques of the world’s religious traditions into the
politics and practice of contemporary conflict management, resolution, and prevention”477. In
short, even though religion is often used by different actors for both violence and peace, it is
also true that all religions propose some basic principles of peace and different ways of
achieving it. Additionally, religion also can provide legitimacy for the provisions in the peace
treaties. Dragovic has pointed out the potentiality of religion to provide legitimisation,
security and basic needs478. According to Dragovic, religion influences three aspects of
legitimacy: the justifiability of rules, the legal validity and expressed consent. So, the

465 Bridget Moix, "Matters of faith: religion, conflict, and conflict resolution," in The Handbook of Conflict
Resolution. Theory and Practice, eds. M. Deutsch, P.T. Coleman, and E.C. Marcus (San Francisco: Jossey-Bass,
2006), 582-601.
466 Moix, "Matters of faith,” 586.
467 Denis Dragovic,. Religion and post-conflict statebuilding: Roman Catholic and Sunni Islamic perspectives
(London: Springer, 2015), 31.
468 Silvestri and Mayall, The role of religion in conflict and peacebuilding.
469 Judy Carter and Gordon S. Smith, "Religious peacebuilding: From potential to action," in Religion and
peacebuilding, eds. H. Coward, and G. S. Smith, (New York: State University of New York Press: 2004), 281..
470 John Stempel, “Faith and Diplomacy in the International System”, 2000,
https://ciaotest.cc.columbia.edu/isa/stj01/,
471 Smock, ed. Religious contributions to peacemaking
472 David R. Smock, Interfaith dialogue and peacebuilding (Washington, DC: United States Institute of Peace
Press, 2002)
473 David R. Smock, Religion in World Affairs: Its Role in Conflict and Peace (Washington, DC: United States
Institute of Peace, 2008).
474 Jacob Bercovitch and S. Ayse Kadayifci-Orellana, "Religion and mediation: The role of faith-based actors in
international conflict resolution," International Negotiation 14, no. 1 (2009): 175-204.
475 Abdul Aziz Said and Nathan C. Funk, "The role of faith in cross-cultural conflict resolution," Peace and
Conflict Studies 9, no. 1 (2002): 37-50.
476 David Steele, "An introductory overview to faith-based peacebuilding." Pursuing just peace: An overview
and case studies for faith-based peacebuilders, eds. M.M. Rogers, T. Bamat, and J. Ideh (Baltimore: Catholic
Relief Services, 2008): 5-42..
477 Carter and Smith, "Religious peacebuilding,” 280.
478 Dragovic,. Religion and post-conflict statebuilding,

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potentiality of religion in the international conflict resolution and in bringing world peace
cannot be ignored. Nevertheless, due to the dominance of the Western nation-state system,
the practice of international conflict resolution in the Middle East also has been largely on the
secular line.

II. RELIGION IN THE MIDDLE EASTERN CONFLICT RESOLUTION
Compared to the Western Europe, Middle Eastern societies, including Israel and Palestine,
give more role for religion in their public life. Underlining the centrality of religion in the
Middle Eastern culture, Ben Mollov noted that religion underlies the collective ways of life in
both Israel and Palestine, even for those who do not follow religious rules and regulations in
their personal life479. Similarly, the role of religion in the conflict between Israel- Palestine,
either as identity, nationality, historical narrations, institutions, organisations, ideology or
principles, cannot be denied. However, despite clear evidences of religion in the politics and
society of both Israel and Palestine, religion was ignored in the peace process. Due to the
prejudice against religion, there have been minimal attempts to incorporate religious values
and influential religious leaders in resolving the Israel-Palestine conflict480. The major
initiatives for peace agreement, whether it is at Camp David or Oslo, were between secular
political leaders. Canon Andrew White contends that none of the negotiators of both sides has
given serious attention to the religious dimensions of the conflict481. Such ignorance of
religions cause lack of mass legitimacy for the peace treaties like Camp David Accords and
Oslo Accords. Due to the “secular reductionism”, state power lacks the tool to deal with the
intractable religious forces and so, either ignore or repress them482. Consequently, the conflict
continues for more than seven decades without reaching a solution.

Ayse Kadayifci-Orellana argues that the reason for the failure of the liberal peace-
framework in the Muslim world is its secular, rational problem-solving approach483. Since
this empirical and positive framework cannot address the religious issues, such an approach
either views religion as an instigator of the conflict or ignores it altogether484. Similarly, Irani
and Funk argue that the Camp David agreement (1978) and the Oslo accords (1991) were not
accepted by a large number of Egyptian or Israel485. Irani and Funk cite the low level of flow
tourist from Egypt to Israel as evidence of this argument. According to Landau, one reason
for the failure of the Oslo accord was that it was a secular plan imposed on a religious
society486. Abu-Nimer, after explaining the potential role of religious-based peacebuilding
actors in the Israel- Palestine conflict, complaints that since the peace processes between
Israel and Palestine have not included and integrated religious dimension, a large segments of

479 Ben Mollov, "Interreligious Dialogue and the Israeli-Palestinian Conflict: An Empirical View," Divergence
of Judaism and Islam: Interdependence, Modernity, and Political Turmoil, eds. M.M. Laskier, and Y.
Lev (Gainesville: University Press of Florida, 2011), 289.
480 Rosen, “The Importance of Interfaith Cooperation,” 443.
481 Canon Andrew White, "Bringing religious leaders together in Israel/Palestine,” in Religious Contributions to
Peacemaking, When Religion Brings Peace, Not war, ed. David R. Smock (Washington, DC: United States
Institute of Peace, 2006), 9.
482 Rosen, “The Importance of Interfaith Cooperation,” 443-444
483 S. Ayse Kadayifci-Orellana, "Peacebuilding in the Muslim world," in The Oxford handbook of religion,
conflict, and peacebuilding, eds. A. Omer, R.S. Appleby, and D. Little (New York: Oxford University Press,
2015), 430-469.
484 Kadayifci-Orellana, "Peacebuilding in the Muslim world," 431.
485 George E. Irani and Nathan C. Funk, “Rituals of Reconciliation: Arab-Islamic Perspectives,” Arab studies
quarterly 2, no. 4, (1998): 53-54.
486 Yehezkel Landau, "The Religious Dimension of Israeli-Palestinian Peacemaking," in Resolving the Israeli-
Palestinian Conflict: Perspectives on the Peace Process, eds. M.F. Salinas, and H.A. Rabi, (New York:
Cambria Press, 2010), 266.

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both countries have been alienated from these processes487. He quotes Landau, arguing that
“incorporating religious dimensions in the Israeli Palestinian peace process can provide the
lacking mass legitimacy for elite agreements”488. Irani and Funk note the importance of
rituals such as sulh (settlement) and musalaha (reconciliation) to ensure the legitimacy of
treaties among common people rather than just political and diplomatic elite489.

It indicates the necessity of utilising religious resources for solving the Israel-Palestine
conflict. Rabbi Marc Gopin490 also emphasises the need for tapping the resources of both
Islam ad Judaism for resolving the conflict. Gellman and Vuinovich suggest that the practice
of sulha has the potentiality to be incorporated into international dialogue491. The
incorporation of sulha practice in the Israel-Palestine conflict resolution can recreate an
emotional sense of honour to both sides throughout the negotiation process. In addition to
governments, non-governmental organisations like the International Association for
Religious Freedom and the World Conference on Religion and Peace (WCRP) also can
contribute to the conflict resolution process. The Alexandria Process of religious leaders,
which was held in 2002, was an initiative to use the influence of religious leaders for
resolving the conflict. Landau calls the Alexandria summit as a “historic occasion”, because
it was the first such kinds of the meeting of the leaders of three Abrahamic religions492.
Nevertheless, there was no such effort after that.

Landau correctly points out that even though the Israeli-Palestinian conflict is primarily
a political dispute between two nations over a common homeland, it has religious aspects that
need to be addressed in any effective peacemaking strategy. The peace agenda cannot be the
monopoly of secular nationalist leaders, for such an approach guarantees that fervent
religious believers on all sides will feel excluded and threatened by the diplomatic process.
Religious militants need to be addressed in their own symbolic language; otherwise, they will
continue to sabotage any peacebuilding efforts493.

Landau warns that restricting religions into churches, mosques and synagogues will
forfeit the opportunity to “inject a spiritual dimension” to the peace process. A political peace
without considering people’s feelings, attitudes and symbolic images will not be long-
lasting494. According to Landau, the Oslo accord partially failed because it was a secular plan
by secular leaders imposed on Holy Land, where the majority of people are religious
followers. Since the peace process is considered as an arena of the secular left, religious
people in Israel link it to the sphere of secularism and feel even threatened by the peace
process495. Accordingly, political peace conferences and discussion have to be strengthened
by “by symbolic or ritualised gestures of rectification and reconciliation, grounded in the
wisdom of the different religious traditions”496. Landau writes it with experience of twenty-
five years living in Jerusalem as a peacemaker and co-director of the Open House Center for
Jewish-Arab Coexistence Ramle, Israel from 1991 to 2003.

487 Mohammed Abu-Nimer, "Religion, dialogue, and non-violent actions in Palestinian-Israeli
conflict," International Journal of Politics, Culture, and Society 17, no. 3 (2004): 492.
488 Abu-Nimer, "Religion, dialogue, and non-violent actions in Palestinian-Israeli conflict,” 493.
489 Irani and Funk, “Rituals of Reconciliation”
490 Marc Gopin, Holy war, holy peace: How religion can bring peace to the Middle East (New York: Oxford
University Press, 2002).
491 Mneesha Gellman and Mandi Vuinovich. "From Sulha to Salaam: Connecting local knowledge with
international negotiations for lasting peace in Palestine/Israel," Conflict Resolution Quarterly 26, no. 2 (2008):
135.
492 Landau, "The Religious Dimension of Israeli-Palestinian Peacemaking," 269.
493 Yehezkel Landau, Healing the Holy Land: Interreligious Peacebuilding in Israel/Palestine. Vol. 31. (United
States Institute of Peace, 2003), 5.
494 Ibid,14.
495 Ibid, 21
496 Ibid, 47.

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Mollov also emphasises the potentiality of religion to facilitate constructive mutual
accommodations497. Given the centrality of religion in the region, Mollov underlines its
potentiality “to serve as an exacerbating as well as a moderating influence on the attitudes of
parties involved in intense inter-ethnic conflict”498. Since political agreements do not
integrate the religious dimension, a large segment of both Israeli and Palestinian population
has been alienated.499500 According to Mollov, interreligious dialogue can bring together
those peoples from both sides who were missing from and resistant to ongoing political
dialogue501. Gopin502 also has argued for including religious actors in the Israel-Palestine
peace process. According to Gopin, peacemakers have to “tap the resources of both Judaism
and Islam” to achieve a successful resolution.

Religion is a central part of the culture and history of Israel and Palestine. The
boundary between religion and society is very vague. While the biblical narration of the land
and divine promise are the inspirations for Jewish movements, the narration of the Qur’an
and hadith about Masjid al-Aqsa is a source of pride for Palestinian Muslims. Even the
“secular” parties mobilise people and justify their positions based on religious texts and
tradition. Another reason is that interfaith dialogue can provide equal status to both parties.
Mollov cites social psychologist Yehuda Amir to argue that inter-religious dialogue can
provide equal status to both parties, which is missing at the political level, but essential for a
successful negotiation503. At interreligious dialogues, Jews and Muslims can negotiate as
equals despite political asymmetry.

Many scholars have advocated for the more active involvement of religion in the peace
process because of its central role in the conflict. Their logic is “If religion is involved in the
conflict, then it might also be fundamental for peace”504. The very word ‘Holy Land’ itself
indicates the involvement of religion in the conflict. Any agreement on the future of
Jerusalem and Temple Mount/Haram Al-Sharif obviously requires religious legitimacy and
support of the religious authority of all sides. During the Camp David Talk in 2000, Yasser
Arafat rejected Clinton’s suggestion to divide the site on Al-Haram Al-Sharif/Temple Mount
vertically. He stressed that the issue of Al-Haram Al-Sharif is an Islamic issue, not just
Palestinian one. So, Palestinian political leaders cannot give up any part of it without
religious legitimacy. It illustrates the need for involving religious leaders in any negotiation
on Jerusalem505. Based on demographic data of increasing religious-oriented population and
the growth rate of religious groups and their influence on politics, Reiter concludes that as
long as the conflict resolution is postponed, the potential of religion to influence the peace
process also will increase506.

Landau cites the opinion of Rabbi Michael Melchior saying that “Religious leaders still
have more credibility with the public than do the politicians”507. Supporting this argument,
Landau cites an incident in which religious leaders could control an outrage, where even the
Prime Minister failed to do so, against an act of Russian immigrant Jew depicting the Prophet

497 Mollov, "Interreligious Dialogue and the Israeli-Palestinian Conflict.”
498 Mollov, "Interreligious Dialogue and the Israeli-Palestinian Conflict,” 289.
499 Landau, Healing the Holy Land
500 Abu-Nimer, "Religion, dialogue, and non-violent actions in Palestinian-Israeli conflict,” 492
501 Mollov, "Interreligious Dialogue and the Israeli-Palestinian Conflict,” 297.
502 Gopin, Holy war, holy peace.
503 Mollov, "Interreligious Dialogue and the Israeli-Palestinian Conflict,” 295.
504 David G. Kibble, "Religion and peacemaking in Palestine,” Peace review 15, no. 3 (2003): 331.
505 Rosen, “The Importance of Interfaith Cooperation,” 447.
506 Yitzhak Reiter, "Religion as a Barrier to Compromise in the Israeli-Palestinian Conflict,” in Barriers to
Peace in the Israeli-Palestinian Conflict, ed. Y. Bar-Siman-Tov (Jerusalem: Konrad-Adenauer-Stiftung Israel,
2010), 257.
507 Landau, Healing the Holy Land, 21.

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Muhammad as a pig. In the interview, Abahra508 observed that Palestinian religious leaders
are closer to people than political leaders. So, their involvement is necessary for conflict
resolution. In the opinion of Abu-Nimer509, religion has a very significant influence in
society. At the same time, Abu-Nimer warned about the manipulation of religious leaders by
political leaders. Despite this political manipulation, Imams still influence within society.

Moreover, all Abrahamic religions, Christianity, Islam and Judaism, propose and share
many fundamental values encouraging for conflict resolution. Sanctity of human life and the
inalienability of human dignity are fundamental values of all these three religions510. In the
words of Abahra511, “the language of religion is a unifying language, more than the English
language”. The second chapter has analysed in detail the Islamic principles for conflict
resolution. Howard Kaminsky512 has identified fundamental principles and aspects of
traditional Jewish interpersonal conflict resolution. He outlines those commandments which
are relevant in conflict resolution, like to love one’s neighbour, the prohibition against hatred,
the prohibition against physical violence, and prohibition of verbal abuses, including saying
hurtful things, embarrassing and cursing others. Similarly, the Jewish tradition of conflict
resolution also teaches values like (1) judging other people towards the scale of merit and
avoid negative interpersonal biases; (2) Tokhahah (reproof) which requires a person who
feels another person has committed an improper action against him to go to that person and to
discuss the issue with him (here the burden of reproof is upon the victim); (3) prohibition of
taking revenge (Nekamah) and bearing a grudge (Netirah); and (4) the obligation upon an
offender for asking forgiveness and upon the victim for granting it.

Ophir Yarden figured out three Jewish universalistic values which are at the heart of
religious-based conflict resolution. They are: “(1) the common humanity of all descendants of
Adam and Eve; (2) the responsibility to behave as those created in God’s image; (3) the
commonality of all who worship the same, one, God – albeit in different ways”513.

Yarden adds two more values particularly in the context of Israel as: “(1) the notion that
one is commanded to be sensitive to neighbours who are unlike oneself ‘for you were
strangers in the Land of Egypt’, and (2) the obligation to care for one’s non-Jewish
neighbours in the same way as one cares for one’s Jewish neighbours, mipnei darkei shalom,
for the sake of the paths of peace”514.

Talking about commonality among Christianity, Islam and Judaism, David G. Kibble
states that: “Whether one is a Jew living in Jerusalem or Jacksonville, a Christian living in
Bethlehem or Birmingham or a Muslim living in Ramallah or Riyadh, all worship the same
God. One may call him Adonai, or God, or Allah, but all worship the one God. The God
whom each worships is the God who created the universe, as taught by the Torah, the New
Testament, and the Qur’an. Some find it difficult to accept that each religion worships the
same God”515.

The challenge is to overcome the insecurity and recurring trauma that “triumph over
universal values of commonality and mutual dignity leading to the demonisation of the other
and to the conflict”.516 While for Jews, this trauma is the outcome of the experience of

508 Personal interview with the author (2020)
509 Personal interview with the author (2020)
510 Rosen, “The Importance of Interfaith Cooperation,” 448.
511 Personal interview with the author (2020)
512 Howard Kaminsky, Fundamentals of Jewish conflict resolution: Traditional Jewish perspectives on resolving
interpersonal conflicts, (Brighton, MA: Academic Studies Press, 2018).
513 Ophir Yarden, “No Dialogue without Religion, without Dialogue no Peace: A Jewish Perspective on the
Israeli-Palestine Context,” New Routes 16, no. 1, (2011): 22.
514 Ibid
515 Kibble, "Religion and peacemaking in Palestine,” 331
516 Rosen, “The Importance of Interfaith Cooperation,” 448.

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persecution, anti-Semitism and Holocaust, Muslims are traumatised by Al-Nakba, the
catastrophe of 1948, which resulted in millions of refugees. According to Landau, these
wounds and traumas need spiritual, not just political, remedies517.

In short, religion becomes a must-considered institution due to various reasons like
religion is part of culture and tradition of these countries; religion and religious sites are part
of conflict; religion and politics are interrelated in Israel and Palestine; religious legitimacy is
crucial for getting public support for conflict resolution in both Israel and Palestine, and all
three Abrahamic religions teach moral values that helpful for conflict resolution.

Nevertheless, religious institutions and leaders were often ignored from the peace
process. There was very little attempt to make these influential leaders and religious values
part of the solution rather than the problem. Despite clear evidence of the role of religion in
society, politics and conflict, the peace process continued as a secular process and religion
dimensions were neglected in both formal and informal dialogues. None of the agreements
between Israel-Palestine leaders refers to the religious dimension of the conflict518. In an
interview with Abu-Nimer, he observed that although the influence of religious groups has
been growing, they are still ignored and have no significant role in the formal conflict
resolution process. Kadayifci-Orellana519 also shared similar concerns and noted that even
though religious leaders have an influence on society, political leaders still tend to ignore
their role. So, the peace process is still at the political level. Regarding the Alexandria process
of religious leaders, Kadayifci-Orellana observed that although political leaders of both Israel
and Palestine did not oppose it, they did not promote it.

This ignorance can be the outcome of various reasons like prejudice about religion as a
source of conflict and intention to keep it away from the public sphere. Rosen narrates an
experience of Rabbi David Rosen in a meeting with President Hosni Mubarak in 1997. When
it was suggested to bring religious leaders together to bring peace in the region, Mubarak’s
immediate response was “religious leaders; you should keep far away from them! That is a
very dangerous idea!”.520 However, after the Second Intifada, religious leaders and groups
have been actively involved in the peace process. The discourse after the 9/11 attack also has
underlined the necessity of considering religion seriously.

One issue in interfaith dialogue is to determine who has the legitimate right and
authority to talk. Although the chief rabbis of Israel are state-appointed authorities, their
power as the spiritual authority is contested521. Similarly, the Minister of Waqf and the Chief
Mufti in Palestine are also can be identified as state officials. Therefore, Breger, Reiter and
Hammer doubt a kind of obligation from these religious leaders to ‘check-in’ with political
leaders before taking a political stance. The influence of religious leaders over political
leaders is also a matter of concern. Additionally, support of political leaders is necessary to
coordinate the meeting and agendas of religious leaders. The Alexandria process of religious
leaders was hosted by Egypt’s president Mubarak. Moreover, if Israel denies, for example,
entry of religious leaders to Israel, it also will make the meeting and further actions of
religious leaders difficult. In short, religious leaders operate under numerous constraints.

Another issue is to face challenges of right-wing extremist groups in both Israel and
Palestine. For example, some religious Zionists reject any agreement with Palestine
considering there is divine order to settle in the entire Palestine land. So, even when the
Israeli government removes settlers from OPT, such right-wing Rabbis ask soldiers to

517 Landau, Healing the Holy Land, 13.
518 Abu-Nimer, "Religion, dialogue, and non-violent actions in Palestinian-Israeli conflict,” 492.
519 Personal interview with the author (2020)
520 Rosen, “The Importance of Interfaith Cooperation,” 444.
521 Marshall J. Breger, Leonard M. Hammer, and Yitzhak Reiter, Sacred Space in Israel and Palestine: Religion
and Politics, (Oxon and New York: Routledge, 2012), 35.

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disobey the evacuation order522. Rabin, who was a critic of religious settlers and signed the
Oslo agreement and agreed to withdraw Israeli force from Gaza and Jericho, had to pay with
his life for it. Rabin was assassinated on 4th November 1995, just after one week of signing
the agreement, by a sympathiser of the religious settlement movement. The settlers who are
not ready to withdraw from the OPT are the major obstacle to reach a solution. The
assassination of Rabin and massacre of Arab worshippers at the Mosque of Abraham in
Hebron by a settler in Qiryat Arba demonstrate the willingness of religious Zionist settlers to
go any extend to prevent an agreement. The victory of right-wing Likud party, which
opposed Oslo and led by Netanyahu, shows the acceptance of right-wing religious Zionist’s
narration in the Israeli society.

Similarly, Hamas faces challenges from people who consider military jihad as the only
option to save Palestine. Although Hamas also was against treaties in its initial stage, it had
no support of the majority of Palestinians in the 1990s. So, in first elections to the Palestinian
National Authority after the Oslo agreement, the supremacy of Arafat was assured.
Additionally, comparing positions of Hamas and Gush Emunim about Oslo, Shafir states that,

the role played by Gush Emunim and Hamas are vastly different: the former set up the
major roadblock to peacemaking through its colonisation project, while the latter reacted to
the Israeli refusal to remove Gosh Emunim’s colonies523.

Since there is a clash between moderates and extremists in both Israel and Palestine, the
popularisation of moderate interpretations of rabbis and sheikhs can contribute to getting
religious legitimacy among the public for conflict resolution. Yarden524 points out that the
clash is often between extremists and moderates rather than between religious groups.
Moderate religious leaders have the potential to challenge the extremist interpretation by
removing the emotionally charged elements from religious values. Moderate religious
narration, rather than secular narration, is the best way to counter extremist perspectives.

III. CONCLUSION
Since religion is treated as a source of conflict, it has been neglected from the conflict
resolution process. Despite clear evidence of the role of religion in the politics and society of
Israel and Palestine, the peace process among them was largely at the secular diplomatic
level. So, treaties like the Camp David Accords and Oslo Accords failed to get mass
legitimacy. The incorporation of religious leaders, groups, norms and terminologies in the
peace process can help increase the acceptance of treaties among religious communities of
both Israel and Palestine.

522 Gershon Shafir, A Half Century of Occupation: Israel, Palestine, and the World's Most Intractable Conflict.
(California: University of California Press, 2017), 117.
523 Shafir, A Half Century of Occupation, 121.
524 Yarden, “No Dialogue without Religion, without Dialogue no Peace,” 23.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 133-162

12. REGULATING INTERNATIONAL ARMS
TRADE: THE APERTURE BETWEEN LAW
AND PRACTICE

Basoz Mohammed Ahmed
Master of Comparative Laws Candidate, Ahmad Ibrahim Kulliyyah of Law,

International Islamic University of Malaysia
Email: [email protected]

ABSTRACT
It is commonly accepted that the Middle East is awash in conventional arms.
Patterns of large military build-ups followed by conflict and the collapse of
government control have led to significant increases in the volume of illicit
conventional arms. Stockpile leakage and diversion whether due to corruption,
weak stockpile management or the loss of government control after the collapse
of a state have fed illicit markets, upended existing trading patterns and
contributed to instabilities by arming populations and non-state groups. This
paper will highlight the availability of conventional arms in the Middle East by
focusing on conflict areas in the region to better understand why the Middle East
is a region where strengthened arms transfer and controls are particularly needed.
The region is cur-rently suffering under the weight of a range of armed conflicts
that are fed by licit and illicit arms flows. In particular, the proliferation and
diversion of illicit arms have fuelled civil wars and other conflicts, such as those
in Syria and Iraq. Meanwhile, trafficked, and diverted weapons arm terrorist
organisations that threaten local populations, destabilise States, conquer territory,
divert resources and commit acts of international terrorism. The ways in which
these weapon flows reach these groups underscore the need for better standards in
both conventional arms transfer and control. This paper will also illustrate the
demands for arms in the Middle East and its consequences as the irresponsible
transfers of arms and failure to control are a major cause of untold human
suffering in some countries such as Iraq and Syria. The aim of this paper is to
accommodate viable solutions for shortcomings suffered by contemporary
international legal regimes in relation to controlling unlawful transferring of
conventional arms and reducing the likelihood of war, as also explores the
practice of conventional arms transfer under the international law and the gap that
subsists between the duty to ensure respect for international laws in arms control,
and the actual transfer practices of States, especially in the Middle East.
Accordingly, the researcher will examine the international regulatory frameworks
and analyse whether they are effective enough to encounter violence against
human rights.

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International Peace and Security: The Achievement of the United Nations and the Way Forward

Keywords: Conventional Arms, International Law, International Arms Transfer,
Arms Trade Treaty, Middle East.

I. INTRODUCTION
The Middle East is a region in acute need of enhanced arms transfer and SALW regulations.
Despite the fact that states in the region are unable or reluctant to accept aid or participate in
activities due to a variety of causes, tremendous progress has been made in the Middle East
and North Africa. What has been absent thus far is a complete review of the breadth of
operations conducted. Historically, the primary objective of weapons control efforts has been
to lessen the likelihood of war, whether by purpose or by necessity.

Therefore, properly conceived arms control measures do not seek to limit or eliminate
weaponry per se, but rather to enhance deterrence and establish a stable balance of power that
reduces the likelihood of war.

In addition to limiting and reducing the costs of war preparation, secondary benefits of
arms control may include a reduction in the scope, destructiveness, or duration of the war,
should it break out, as well as a reduction in the costs of war preparation. Another potential
advantage is the prevention of arms races that could complicate peace discussions and
exacerbate regional tensions. As a result, the researcher critically examines preventive and
punitive measures under international regulatory frameworks and assesses their effectiveness
in dealing with human rights violations. Also emphasised the complicity in inter-state
relations that prevents states from licensing weapons transfers to human rights and IHL
violators. The primary rules of international law, on the other hand, are taken into account. It
does, however, discuss the main reasons for violations of international law and the protection
of individuals and communities, as well as the issues of ATT commitment and non-
commitment by States. To comprehend, this study will significantly aid in the process of
controlling, eliminating, and eradicating conventional arms transfer on a global scale.

This research begins to fill the void by providing a preliminary conceptual analysis of
the subject, beginning with a general overview of the arms trade or transfer and an analysis of
the international law that regulates and governs this trade, as well as the inconsistency
between practise and law in the transfer of conventional arms between states, the potential of
an international arms trade treaty, and how states or international organisations are working
to bridge the gap between practise and law in the transfer of conventional arms. This research
will determine the historical context of arms trading in general and conventional arms
transfer in particular. In order to gain a deeper understanding of the contradiction between
practical application and law, as well as irresponsible arms transactions, this paper will
examine the current method and regulations in this field.

In addition, it will provide the first comprehensive analysis of the range of arms
transfer- and SALW control-related cooperation and support actions carried out involving
Middle Eastern states by focusing on the crises in Iraq and Syria. On this basis, the article
identifies potential gaps in the forms of support offered to date, which could be applied
elsewhere, and recommends procedures for improving the coordination of this type of
cooperation. It also gives a brief history of the region's engagement with various international
and regional instruments in the field of arms transfer and controls, in addition to a brief
overview of the unique challenges that the Middle East region faces in terms of combating
illicit trade in conventional arms and implementing effective arms transfer and control
instruments. In particular, it provides additional details on arms transfer and control-related
activities.

The researcher also presents case studies on conflict areas to demonstrate how it can
contribute to a more detailed analysis of States' needs and the lessons that can be learned

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from assistance provided to date, as well as analysis the possible solutions for regulating arms
flows to Iraqi and Syrian regions by identifying the important roles of UN's all member
States, the role of neighbouring States of Iraq and Syria, along with the local governments of
each State, in order to emphasise the responsibilities of each party in controlling and using
conventional weapons. The research concludes with a summary of the important findings and
recommendations for enhancing the effectiveness of the existing ATT and rules for restricting
the transfer of conventional armaments and avoiding past mistakes in order to prevent further
human suffering in any state in the globe.

II. THE AVAILABILITY OF THE CONVENTIONAL WEAPON IN THE MIDDLE
EAST
It is widely assumed that the Middle East is awash in conventional weapons. External shocks,
such as the outbreak of a new conflict, frequently have a significant impact on patterns of
arms trafficking in the Middle East and North Africa.525 A pattern of large military build-ups
followed by conflict and the breakdown of government control, in particular, has resulted in
significant increases in the volume of illicit Conventional Arms and SALW. According to the
Small Arms Survey, the 2003 Iraq war resulted in the transfer of at least 4.2 million
conventional and SALW weapons from the military to armed non-state actors or the general
civilian population as a result of either the government's pre-invasion arming of militia forces
or post-invasion stockpile looting.526 These weapons, along with transfers from surrounding
states and battlefield captures, formed the foundation of the arsenals that fueled the anti-
coalition insurgency and internal conflicts in Iraq that began in 2003.527 The fall of the
Gaddafi regime in Libya in 2011 allowed for the looting of poorly guarded stockpiles. Libya
saw the rapid emergence of illicit weapons markets, while increased and unrestricted internet
access facilitated their illicit sale online.528 The loss of arms in both Iraq and Libya impacted
not only neighbouring countries but also the wider region.529 During the revolution, for
example, refugee flows from Libya to Tunisia included the transfer of significant amounts of
civilian-held small arms that were not controlled at the border.530 Weapons from Libya
stockpiles also spread to most of West Africa.531

Stockpile leakage and diversion, whether caused by corruption, poor stockpile
management, or the loss of government control following a state's collapse, have fed illicit
markets, disrupted existing trading patterns, and contributed to instabilities by arming
populations and non-state groups. In order to reduce proliferation-related instability and
security challenges, national and regional measures to improve stockpile management of
SALW and ammunition, strengthen border controls, and ensure accountable destruction of

525 Ally Karp, and Mark Schroeder, ‘‘Global trends in small arms trafficking’’, World Policy Blog, (2016).
526 Small Arms Survey, ‘‘From chaos to coherence? Global firearms stockpiles’, Small Arms Survey,: Rights at
Risk (Oxford, Oxford University Press:2004),47,49.
Note:This added to an estimated pre-war civilian arsenal of at least 3.2 million firearms. In addition, hundreds of
thousands of former police and intelligence service weapons also passed into civilian hands.
527 John Ismay, ‘‘Insight into how insurgents fought in Iraq’’, New York Times,
<https://archive.nytimes.com/atwar.blogs.nytimes.com/2013/10/17/insight-into-how-insurgents-fought-in-iraq/>
(accessed 02 January 2022).
528 Jenzen Jones, N. R. and McCollum, I., ‘’Web trafficking: Analysing the online trade of small arms and light
weapons in Libya’’, SANA Working Paper, no. 26 (Geneva: Small Arms Survey, 2017), 26.31.
529 The Panel of Experts established pursuant to resolution 1973, concerning Libya, addressed to the President
of the Security Council, (2011).
530 Moncef Kartas, ‘‘On the edge? Trafficking and insecurity at the Tunisian–Libyan border’’, Small Arms
Survey Working Paper no. 17 (2013), 23. <https://www.smallarmssurvey.org/sites/default/files/resources/SAS-
WP17-Tunisia-On-the-Edge.pdf>.
531 United Nations Office on Drugs and Crime, ‘’Transnational Organised Crime in West Africa: A Threat
Assessment’’, (UNODC: Vienna, Feb. 2013).

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surplus weapons after a war are required. The collapse of state institutions in Iraq and Libya
would have resulted in the loss of weapons from state stockpiles regardless of the type of
standards in place at the time.

The region is currently burdened by a variety of armed conflicts fueled by licit and
illicit arms flows. The proliferation and diversion of illicit arms, in particular, has fueled civil
wars and other conflicts such as those in Syria and Yemen. Meanwhile, weapons trafficked
and diverted arm terrorist organisations like the Islamic State group (IS) and al- Qaeda, which
threaten local populations, destabilise states, conquer territory, divert resources, and commit
international terrorism.

The methods by which these weapons reach these groups highlight the need for
improved standards in both conventional arms transfer and control. At the same time, many
of the region's states are undertaking ambitious military buildups that have the potential to
further erode the region's often-limited levels of inter-state trust and confidence. These
buildups highlight the importance of effective arms procurement and import controls to
ensure that any arms acquired are in line with national needs and reach their intended end-
users. They also emphasise the importance of effective transparency and reporting measures
as a key component of any effective arms transfer control system, so that states' true
intentions are not misconstrued.532

2.1 The Demand for Arms in the Middle East
The Middle East is one of the world's most heavily armed regions, with numerous conflicts or
standoffs involving many of the region's states. Israeli leaders, referencing a number of
perceived threats, argue that a large and technologically advanced military is still required.
Iran is viewed as a threat not only by the US and Israel, but by nearly every country in the
Persian Gulf (the Gulf); Iran, in turn, views the US, Israel, and others as adversaries. Ongoing
conflicts and instability in Yemen, Syria, and Libya demonstrate the extent to which foreign
states seek to influence outcomes through the use of their own military forces and arms
transfers to local partners. Several other factors have contributed to the region's massive
demand for arms. Several countries face transnational terrorist threats as well as domestic
insurgencies in some cases. Furthermore, because of their prominent role in domestic and
foreign policy, some states have large, well-equipped militaries that can influence national
arms sales decisions. Military technology and capabilities advancements have rendered some
legacy systems obsolete, necessitating new acquisitions. Some argue that the significance that
Middle Eastern governments clearly place on large weapons purchases stems from the role
that arms can play in establishing international credibility as well as national pride and
identity. These are powerful incentives in a region where political legitimacy is widely
contested and some states gained independence in the early 1970s.533A more competitive and
volatile global environment may also play a role, as regional states seek to diversify their
arms providers. By almost any standard, the Middle East is a major participant in the global
arms trade. According to sales data, the Middle East accounted for approximately 35% of
global arms imports from 2015 to 2019.534 According to these data, between 2000 and 2019,
the US. supplied nearly 45% of the arms imported by the Middle Eastern States, far
outpacing those from the next largest suppliers (Russia and France supplied 19.3% and

532 Jonathan M. Cuney, ‘’Insurgent arsenal of Fallujah, in Small Arms Review’’, Vol. 15, No. 1, (2011),3.
533 Emma Soubrier, “Mirages of Power? From Sparkly Appearance to Empowered Apparatus, Evolving Trends
and Implications of Arms Trade in Qatar and UAE,” in The Arms Trade, Military Services and the Security
Market in the Gulf States: Trends and Implications, eds, Gerlach Press, (2016).
534 Pieter Wezeman, et al., “Trends in International Arms Transfers, 2019,” Stockholm International Peace
Research Institute, (2020).

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11.4% of the Middle East’s arms imports, respectively).535 Recent sales follow established
patterns: the Middle East has historically been of particular importance for the US as an arms
market. US. arms sales data shows that between 1950 and 2017, the Middle East accounted
for over $379 billion in US. Foreign Military Sales (FMS) agreements (in current, non-
inflation adjusted dollars), representing 51.5% of FMS agreements worldwide, and over $234
billion in FMS deliveries, representing 45.8% of FMS deliveries worldwide.536

2.2 Providing Arms to Governments Suspected of Violation of Human Rights
The US has maintained a naval command in Bahrain for decades, even before the country's
1971 declaration of independence. In 1991, the two countries signed a Defense Cooperation
Agreement (DCA), and in March 2002, President George W. Bush identified Bahrain as a
"major non-NATO ally."537 Concerns regarding the Bahraini government's reaction to a
protest movement that began in February 2011 have affected the relationship. Against the
Shiite majority, Bahrain's ruling class (ruled by minority Sunnis and led by the ruling Al
Khalifa family) is accused of numerous cases of abuse of human rights.538 Bahrain presented
a request in early 2016 to purchase a number of F-16s and to modify its existing aircraft as
part of a $4 billion transaction. However, when the Obama administration pre-notified
Congress of the sale, it explained that the transaction would not proceed unless Bahrain took
steps to improve its human rights record.539 The Trump Administration eliminated those
conditions in March 2017, despite U.N. Bahrain's human rights have experienced a "severe
deterioration" during the past year, according to investigators.540 In September 2017,
Congress was formally notified of the sale. In his aforementioned March 2017 speech before
a committee, General Votel specifically cited Bahrain. According to him, "the poor progress
on major FMS issues, specifically additional F-16 aircraft and modifications to Bahrain's
current F-16 fleet, due to fears of potential human rights violations in the country, continues
to strain our relationship."541 Critics of the deal contend that the Bahrain Defense Force
(which predominantly rejects Shiites in favor of non-Bahraini Sunnis) itself contributes to
instability in the country and that the unconditional distribution of US. weapons exacerbates
the problem.542 In the 114th Congress, legislation (H.R. 3445 and S. 2009) was presented to
restrict the supply of weapons that may be used for crowd control, such as small guns,
ammunition, and Humvees, until the State Department could certify that the government had

535 CRS (Congressional Research Service) analysis of arms transfers data from the (SIPRI). SIPRI’s arms
transfers data are derived from a variety of publicly available sources, some of which are unofficial, and
attempts to capture DCS data in addition to official FMS data. For this reason, there are slight differences in
SIPRI’s figures and those from official US. documents. For more on SIPRI’s sources and methods see,
https://www.sipri.org/databases/armstransfers/sources-and-methods.
536 CRS analysis of FMS data from the Defense Security Cooperation Agency’s (DSCA) Fiscal Year Series
(updated September 30, 2017). It should be noted that these dollar values for US. arms agreements and
deliveries to the Middle East states are significantly undercounted because it excludes US. arms delivered under
Direct Commercial Sales (DCS). For more details see CRS In Focus IF11441, Transfer of Defense Articles:
Direct Commercial Sales (DCS), by Nathan J. Lucas and Michael J. Vassalotti.
537 Alan Platt, ‘’Previous Arms Transfer Restraint Efforts in the Middle East’’, Stimson Center, 1992.
538 See, for example, “Bahrain 2016 Human Rights Report,” State Department Country Reports on Human
Rights Practices for 2016, at https://www.state.gov/documents/organization/265704.pdf.
539 Anthony Capaccio, “Bahrain’s Lockheed F-16 Buy Said to Come with US. Strings,” Bloomberg, September
30, 2016. The concerns included imprisoned activists and shuttered political parties.
540 “Bahrain must end worsening human rights clampdown, UN experts say,” Office of the High Commissioner
for Human Rights, June 16, 2017.
541 Statement of General Joseph L. Votel. March 9, 2017.
542 Elliott Abrams, “The Non-Existent Progress in Bahrain,” Council on Foreign Relations, June 30, 2015.

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adopted all recommendations made in the report of the government-established Bahrain
Independent Commission of Inquiry (BICI).543

Egypt is another illustration of the complex dynamics surrounding human rights. The
Congress has sought to condition arms supplies on Egypt's compliance with certain
democratic and human rights principles. Since FY2012, adopted appropriations legislation
has contained language withholding portions of Egypt's FMF allocation unless the executive
branch certifies Egypt's progress on human rights-related indicators.544 These provisions
have, with the exception of the 2014 fiscal year, authorised the executive branch to waive
such limits on national security grounds, and consecutive Secretaries of State have frequently
invoked these waiver rights. Egypt's continuous ties with the Democratic People's Republic
of Korea and its implementation of a law restricting non-governmental organisations
prompted President Trump to reduce Egypt's FY2017 FMF obligation by $65.7 million
(NGOs). Members of Congress may reconsider existing limits on the transfer of US. arms to
certain security force units and persons who have violated human rights, as well as the
effectiveness of these efforts.545

III. ARMS TRADES AND TRANSFERS TO THE REPUBLIC OF IRAQ
Iraq has a substantial military force of varying quality. It comprises just under a million
soldiers; 5,500 tanks, 10% of which are modern T-72s; and 500 combat aircraft, including 33
MiG-25 fighter and reconnaissance planes, 70 MiG-23 fighter-ground attack planes, and 64
Mirage F-1 planes, some of which are equipped with Exocet anti-ship missiles. It also has a
large stockpile of artillery, rocket launchers, armoured vehicles, and air defence systems.
According to the Congressional Research Service, Iraq imported $45.7 billion in weapons
during its war with Iran.546

Iraq's armed forces are among the most formidable in the Third World, making it the
Middle East's dominant military power. Almost all of Iraq's major military equipment was
obtained through arms trade with the Soviet Union, France, and China, with the approval of
the West, including the US.

The rise of the IS in Iraq Following the US-led invasion of Iraq in 2003 and the
subsequent demise of President Saddam Hussein, several insurgent armed groups comprised
primarily of Sunni men emerged to oppose the occupying forces and the Shi'a-dominated
Iraqi government. After declaring allegiance to al-Qa'ida and establishing al-Qa'ida in Iraq,
the Al-Tawhid wa al-Jihad group, founded in 2002 by Jordanian national Abu Musaab al-
Zarqawi, became a major force in the insurgency. The US' support for the more moderate
Sunni al-Sahwa (Awakening) Councils gradually weakened al-Qa'ida in Iraq. Following the
death of Abu Mussab al Zarqawi in a US air strike in 2006, al-Qa'ida in Iraq renamed itself
the Islamic State in Iraq (ISI).547

When the Syrian uprising began in 2011, ISI, led by Abu Bakr al-Baghdadi, joined the
rebellion against Syria's President, Bashar al-Assad. Jabhat al-Nusra (al-Nusra Front - ANF)
and al-Qaeda rejected Baghdadi's attempts to establish a single organisation operating across
Iraq and Syria, but the resulting Islamic State of Iraq and the Levant (ISIL) consolidated and

543 For more, see CRS Report 95-1013, Bahrain: Unrest, Security, and US. Policy, by Kenneth Katzman.
544 For a table of these democracy-based conditions on US. military aid to Egypt, see the CRS report referenced
in the footnote above.
545 For more information, see CRS In Focus IF10575, Human Rights Issues: Security Forces Vetting (“Leahy
Laws”), by Liana W. Rosen.
546 Christopher Chivers, The Gun: The Story of the AK-47, (New York: Penguin Groups, 2010),46.
547 UN Security Council, ’Security Council Adopts Resolution 2170 (2014) Condemning Gross, Widespread
Abuse of Human Rights by Extremist Groups in Iraq, Syria’, available at
www.un.org/press/en/2014/sc11520.doc.htm ; text of resolution can be found here:
www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2170 (2014).

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began recruiting fighters. Al-Raqqa became the first governorate capital in Syria to fall to
non-state armed groups led by ANF and Ahrar al-Sham in March 2013. However, in the
following weeks, ISIL forced these groups out of the city and took control of the majority of
the governorate.548

In Iraq, ISIL exploited the government forces' violent dispersal of largely peaceful,
year-long protests in Ramadi and Fallujah, Anbar province, in December 2013, joining
disgruntled Sunni tribesmen and former Baathists in the fight against government forces. In
January 2014, ISIL took control of Fallujah and parts of Ramadi. Iraqi government forces
made an attempt to retake Fallujah and parts of Ramadi from ISIL. As a result, their
indiscriminate shelling resulted in multiple civilian deaths and damage to civilian
infrastructure. For months, Anbar province was at conflict, with allegations that Iraqi Prime
Minister Nuri al-Maliki undermined tribal leaders' efforts to reach an agreement. The failure
of the Iraqi government to resolve the crisis, among other factors, left Anbar unable to stop
the rapid military advance of the group now known as IS, whose fighters seized control of
Mosul, Iraq's second-largest city, in June 2014.

Following their takeover of Mosul, Iraq's second-largest city, IS fighters received a
slew of internationally manufactured arms from Iraqi stockpiles. They included weapons and
military vehicles made in the US, which they used to seize control of other parts of the
country, with disastrous consequences for the civilian population in those areas. The vast
array of weapon types captured and illegally obtained has enabled IS to carry out a heinous
abuse campaign. Summary executions, rape, torture, abduction, and hostage-taking have
forced hundreds of thousands to flee and become internally displaced persons (IDPs) or
refugees. Following the capture of Mosul, much of Anbar, Diyala, Kirkuk, Nineveh, and
Salah al-Din provinces were captured. As a result of IS's gains, the US resumed an active
military role in Iraq in mid-2014. By late 2015, the IS had significantly advanced its
operations in Syria, gaining effective control over large parts of al-Raqqa, eastern Aleppo,
Deyr al-Zur, Hasakah, Homs, and Hama governorates, as well as half of Yarmouk, a
neighbourhood less than 10 kilometres from Damascus.549

IS possesses an extensive arsenal of weapons and ammunition invented or produced in
more than 25 countries. IS has committed a horrifying array of human rights abuses and
violations of IHL with this Arms, some of which constitute war crimes and crimes against
humanity. IS has consistently and deliberately targeted civilians, notably through suicide
bombings of mosques and markets, since its foundation in Iraq in 2006. IS fighters have
kidnapped citizens, including nonviolent activists and media professionals, and perpetrated
acts of torture and ill-treatment, including rape and other sexual and gender-based abuse.
They have brutally executed captured government soldiers and members of other non-state
armed groups, and they have used child soldiers.550

IS fighters used ammunition produced in a wide range of countries. In July and August
2014, Conflict Armament Research examined 1,775 cartridges collected from Kurdish
regions of northern Iraq and northern Syria and discovered ammunition from 21 countries,

548 Conflict Armament Research, Islamic State Weapons in Iraq and Syria (2014), available at
http://conflictarm.com/wp-content/uploads/2014/09/Dispatch_IS_Iraq_Syria_Weapons.pdf.
549 UN Commission of Inquiry, Rule of Terror: Living under ISIS in Syria, (2014), available at
www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/Documentation.aspx; Human Rights Watch, Syria:
Deliberate Killing of Civilians by ISIS, (3 July 2015), available at www.hrw.org/news/2015/07/03/syria-
deliberate-killing-civilians-isis
550 Amnesty International, Released schoolboys reveal torture, fear and anxiety in IS captivity in Syria (7
November 2014), available at www.amnesty.org/en/latest/campaigns/2014/11/released-schoolboys-reveal-
torture-fear-and-anxiety-in-is-captivity-in-syria/

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primarily China, Russia/the former Soviet Union, the US, and Serbia.551 While more than half
of the sample originated in China or Russia/the former Soviet Union, the remaining 20% was
manufactured in the US. The US-made ammunition was most likely seized from Iraqi
military stocks. Researchers on the ground discovered seven-month-old Russian ammunition
as well as recently manufactured Iranian ammunition. Given Iran's and Russia's roles in
supplying the Syrian military,552 this ammunition was most likely looted or captured from
Syrian military stocks. A small amount of Sudanese ammunition was also discovered, which
is consistent with previous discoveries of similar ammunition among Syrian armed groups.553

All parties to the conflicts in Iraq and Syria, including IS, are using variants of the
Russian Dash Second World War design heavy machine gun. Russian-style automatic
cannons, such as the 2A14, are the most common and have been seen in use by Peshmerga
and Kurdish People's Protection Units forces in Iraq, as well as by IS in both Iraq and Syria.
According to an Iraqi source, IS has also used the ZU-23-2 former Soviet Union anti-aircraft
gun to execute large groups of prisoners.554All parties to the conflict also use the pre-Second
World War former Soviet Union M1939 (61-K) and China's twin-barreled Type 65. IS'
arsenal contains examples of the Russian GP-25 and GP30M, as well as the Bulgarian
UBGL-M7 grenade launchers.555

The perils of legacy weapons and proliferation IS presently employs a vast arsenal of
weapons and ammunition that were conceived or manufactured in at least countries.556 Small
arms can stay serviceable for decades if properly maintained; AK-variant rifles, which are the
most widespread in the current conflict, are extremely durable, with 50-year-old rifles still in
use in various parts of the world.557 The majority of IS's present arsenal was created at least a
quarter of a century ago; certain weapons are virtual museum piceses. IS's arsenal consists
primarily of post-World War II Warsaw Pact standard stock, primarily from the 1970s to the
1990s, and more recent NATO-standard equipment, reflecting Iraqi military procurement
decisions since the 1960s, domestic production in Iraq, and massive proliferation of Iraqi
military stocks after 2003.

According to the UN panel of experts, other experts, and media sources, the IS has also
acquired weapons and ammunition through illegal transactions and transfers. The UN
Security Council arms embargo monitoring team highlighted that "an vast informal economy
in the region has evolved to smuggle arms," which is facilitated by the existence of large
government stockpiles and a long-standing tradition of private gun ownership in Syria and

551 Human Rights Watch, ‘Syria: Evidence of Islamic State Cluster Munition Use’, 1 September 2014, available
at www.hrw.org/news/2014/09/01/syria-evidence-islamic-state-cluster-munition-use
552 New York Times, ‘What an ISIS Chemical Strike Did to One Syrian Family’, 6 October 2015, available at
www.nytimes.com/2015/10/07/world/middleeast/syrian-familys-agony-raises-specter-of-chemical-warfare.html
553 N.R. Jenzen-Jones, ‘Following the Headstamp Trail: An Assessment of Small-calibre Ammunition
Documented in Syria’, in Small Arms Survey, April 2014.
554 BBC, ‘Chemical agent’ traced in IS mortar fire, says US general’, 21 August 2015, available at
www.bbc.co.uk/news/world-middle-east34020268
555 Associated Press, ‘Kurds probe 2 possible Islamic State chemical weapon attacks’, 16 March 2015, available
at www.business-standard.com/article/pti-stories/kurds-probe-2-possible-islamic-state-chemical-weapon-
attacks-115031600931_1.html ; UN Security Council, ‘Letter dated 13 November 2014’, para. 45, available at
‘www.un.org/en/ga/search/view_doc.asp?symbol=S/2014/815 ; New York Times, ‘ISIS Has Fired Chemical
Mortar Shells, Evidence Indicates’, 17 July 2015, available at
www.nytimes.com/2015/07/18/world/middleeast/islamic-stateisis-chemical-weapons-iraq-syria.html?smid=tw-
share&_r=0
556 ARES, ‘‘US produced TOW 2A ATGWs in Syria, available at http://armamentresearch.com/us-produced-
tow-2a-atgws-in-syria/; ‘Captured TOW 2A missiles employed in Syria’, available at
http://armamentresearch.com/captured-tow-2a-missiles-employed-in-syria/
557 ARES, ‘Durability & Longevity of Self-Loading Rifles Research, Note 8’, January 2014, available at
www.armame

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Iraq.558 IS is believed to have obtained arms from the Free Syrian Army and private traders,
in addition to utilising well-established smuggling channels and illegal arms markets. It is
also possible that some of the small arms in IS' hands, such as an American-made M4-style
carbine Bushmaster X15E2S documented in IS' arsenal, entered Iraq through private security
companies during the US occupation and made their way to Iraqi arms markets.

IS' atrocities are fueled by decades of the irresponsible arms trade. Decades of poorly
regulated arms transfer into Iraq and insufficient controls on the ground have given the armed
group (IS) a vast and lethal arsenal, which is being utilised to conduct massive war crimes
and crimes against humanity in Iraq and Syria.559

Decades of inadequate regulation and oversight of the illegal arms transfers into Iraq
have provided IS and other armed groups with unprecedented access to ammunition.

The range and scope of IS’s arsenal reflect decades of irresponsible arms transfers to
Iraq. Multiple failures to control arms shipments and implement supervision systems to
prevent improper end uses during the US-led occupation after 2003 have exacerbated the
situation. Similarly, loose supervision over military stockpiles and pervasive corruption on
the part of successive Iraqi governments have worsened the problem.560

IS fighters and other armed groups have also turned to crude workshops to forge their
own improvised weaponry. Mortars and rockets, improvised hand grenades, explosive
devices (IEDs) such as car bombs and booby traps, and even repurposed cluster munitions, an
internationally prohibited weapon, are examples. In some cases, IEDs are classified as
landmines under the Mine Ban Treaty.561

The majority of the conventional weapons used by IS militants date from the 1970s to
the 1990s, and include pistols, handguns, anti-tank weapons, mortars, and artillery. Rifles
resembling the Soviet-era Kalashnikov are widely available, primarily from Russian and
Chinese producers. This again demonstrates that arms export risk assessments and mitigation
actions in unstable countries require a root-cause investigation over the long term. This must
involve determining whether military and security units can successfully handle stockpiles
and adhere to international human rights and humanitarian standards.

IV. ARMS TRADES AND TRANSFERS TO THE REPUBLIC OF SYRIA
Early in 2011 Syria fell under the spell of the Arab Revolution. In February and March 2011,
the Syrian people stepped into the streets and claimed more political, social and economic
rights. The Syrian regime announced several political and legal reforms, but part of the
population experienced them as unsatisfactory.562 The demonstrations became more vicious
and the regime of President Bashar Hafez al-Assad broke up the crowds with military action.
The State’s suppression of dissent was followed by defections and the formation of armed
opposition groups.563 Violence soon escalated and transformed into a still-ongoing civil
war,564 in which the parties’ conduct has become increasingly radicalised and militarised,565

558 Oryx blog, ‘The spoils of Tadmur (Palmyra) airbase, captured by the Islamic State’, 1 June 2015, available at
http://spioenkop.blogspot.co.uk/2015/06/the-spoils-of-tadmur-palmyra-
airbase.html?_sm_au_=iVV1Djf4rZRc4N7q
559 UN Security Council, ‘Letter dated 13 November 2014’, para.38.
560 Conflict Armament Research, Islamic State Weapons in Iraq and Syria, September 2014, p. 14, available at
www.conflictarm.com/wpcontent/uploads/2014/09/Dispatch_IS_Iraq_Syria_Weapons.pdf
561 As documented by Armament Research Services (ARES) unpublished study, commissioned by Amnesty
International.
562 See UN Report of the Secretary-General on the implementation of Security Council Resolution 2043,
S/2012/523, 6 July 2012, at p.1.
563 UN Report Commission of Inquiry, A/HRC/19/69, 22 February 2012, §17.
564 In July 2012, the ICRC for the first time labeled the Syrian conflict as a ‘non-international armed conflict’. In
August 2012, the UN Commission of Inquiry reported that during the reporting period (February 2012-August

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at the expense of both the Syrian people and both regional and international peace and
security. Recent figures are revelatory of the growing cycle of violence: according to reports
released in September 2013 over 110,000 people have been killed;566 many thousands have
been wounded during the armed hostilities; there are more than 2.4 million refugees; 4
million have been displaced internally (IDPs);567 and more than one-third of Syrians urgently
need humanitarian aid.568

Since the chemical attack in the Ghouta area on 21 August 2013, which killed an
estimated 1,400 men, women and children, high level diplomatic negotiations have resumed.
But still, the prospects for peace and stability on the ground seem remote. While the
immediate threat of an international military intervention has been lifted, the fighting
between the forces of Assad and the rebel groups, as well as the combats between the dozens
of armed opposition groups, continues unabated. It is estimated that several thousands of
Syrians have been killed by conventional weapons since the Ghouta chemical attack.569

After more than two years of internal conflict in Syria, a pressing question relates to the
legality of arms transfers to both the groups opposing the regime of Assad and the Assad
regime itself. Since the beginning of the conflict, regional and international players are
arming one side or the other, which brought the UN Secretary-General to qualify the conflict
as a ‘proxy war’.570 The latest report of the UN Independent International Commission of
Inquiry on the Syrian Arab Republic (hereafter: UN Commission of Inquiry) unambiguously
observed that ‘[m]ore regional actors were sponsoring flows of fighters and equipment,
increasingly along sectarian lines, leading to a rise in corresponding violence’.571 In light of
the lift of the EU arms embargo earlier this year, and the growing tensions at the regional and
international level on the Syria question, there is no likelihood of decreasing arms transfers in
the near future, which triggers the discussion on the permissibility of such arms transfers.

The Syrian Civil War is one of the world's deadliest ongoing conflicts. To sustain the
conflict for more than five years, all parties have used a variety of conventional and
unconventional weapons, such as the chemical weapons primarily used by the Assad regime.
Syria is awash in weapons, raising concerns about the long-term consequences of a steady
supply of arms in the midst of the country's civil war.

The diversity of weapons suppliers and the availability of weapons in Syria pose a
number of long-term challenges and risks. One effect of the constant supply of weapons has
been to keep the conflict going. Transfers of arms to all parties involved in the Syrian Civil
War have helped to replenish depleted stocks, expand military capabilities, and contribute to
escalatory exchanges throughout the conflict. Civilians have borne the brunt of this dynamic,
with an estimated 500,000 people killed and millions more displaced as a direct result of the
ongoing conflict.572

2012) ‘the intensity and duration of the conflict, combined with the increased organizational capabilities of anti-
Government armed groups, had met the legal threshold of a non-international armed conflict’. See also BBC
(2012), ‘Syria in civil war, Red Cross says’, 15 July 2012; Aljazeera (2012), ‘Red Cross declares Syria conflict
a civil war’, 16 July 2012.
565 UN Report Commission of Inquiry, A/HRC/22/59, 5 February 2013, at p.1.
566 SeeUN Under-Secretary-General Valerie Amos remarks to the press, Beirut/New York, 6 September 2013;
The Economist (2013), ‘Syria’s war. An unlikely band of brothers’, 21 September 2013.
567 Ibid; Reliefweb (2013), ‘Syria: Humanitarian Snapshot’, 17 September 2013.
568 Ibid; See also WFP, Syria-overview, last consulted on 31 October 2013.
569 See The Economist (2013), ‘Syria’s war. An unlikely band of brothers’, 21 September 2013.
570 UN Secretary-General Remarks to the General Assembly, 3 August 2012.
571 UN Report Commission of Inquiry, A/HRC/24/46, 16 August 2013, p.23; UN Report Commission of
Inquiry, A/HRC/23/58, 18 July 2013, p.27; The Economist (2013), ‘Hit him hard’, 31 August 2013.
572 For an overview of the reforms announced by the Syrian Government, and the results thereof, see UN Report
of the Independent International Commission of Inquiry on the Syrian Arab Republic (hereafter: ‘UN Report
Commission of Inquiry’), A/HRC/S-17/2/Add.1, 23 November 2011, p. 31-34 ; UN Report Commission of

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Indeed, conventional weapons have devastated the lives and livelihoods of Syrian
civilians. The Syrian government's indiscriminate use of heavy weaponry and artillery, as
well as its broader use of explosive weapons in residential areas, has caused unfathomable
human suffering and will leave a deadly legacy of explosive weapons for decades.
Furthermore, years of aerial bombs and the widespread use of mines and improvised
explosive devices have rendered certain regions of the country inhabitable, which could
impede post-conflict development.

Where did all these weapons originate? Prior to the outbreak of conflicts, the Syrian
government made a concerted attempt to modernise its military by spending extensively in
advanced technology and geometrically increasing its arms purchases over a five-year period.
Russia was mainly responsible for supplying the Syrian regime with arms, while Iran and, to
a lesser extent, Belarus, China, and North Korea have also historically supplied Syria with
arms. According to the SIPRI, Russia contributed 71 percent of Syria's shipments of
significant conventional weapons between 2008 and 2012, and continued to do so following
the outbreak of war.573

In contrast, armed opposition groups have obtained their weaponry from a number of
sources, including foreign governments, illegal arms marketplaces, Syrian national
stockpiles, and combat captures. Qatar and Saudi Arabia are thought to be among the most
active foreign nations sponsoring and supplying weaponry to Syrian opposition forces in an
effort to bolster their capabilities and enable them to continue battling the Assad regime. In
addition to the US and its coalition partners, other nations such as Croatia, Israel, Jordan,
Turkey, and the United Arab Emirates, have provided and transported weaponry to Syrian
opposition forces. In addition, illicit arms transfers from uncontrolled Libyan stockpiles were
a significant supply of weapons for armed groups during the onset of the Syrian Civil War,
with reports indicating that such transfers comprised some of the most important military
support available to opposition groups. Throughout the conflict, opposition groups have
captured weapons from government forces and government depots, making the Syrian army
the primary supply of arms for the armed opposition.574

The continuation of the Syrian conflict has also fueled arms trafficking, with illicit
networks operating in the region profiting from the chaos and availability of weapons. The
increase in grey and black market arms sales may have long-term consequences for access to
and availability of weapons, as well as contribute to destabilising proliferation across the
region. Indeed, the diversion of arms to illicit markets makes it nearly impossible to trace
weapons and can improve the arsenals of armed groups, criminal organisations, and terrorist
groups. For example, IS fighters obtained advanced weaponry from Syrian opposition groups
and Iraqi security forces, increasing the threat to national, regional, and multilateral forces
fighting the terrorist organisation.575

4.1 Arms Transfer to Parties to the Conflict in Syria
The arms transfers to Syria reflect the international community's deep divide over how to
respond to the Syrian crisis. Since the beginning of the crisis, some countries have funnelled
significant amounts of weapons to the Assad regime, while others have supplied arms to the
armed opposition forces, and still others have imposed (and then lifted) an arms embargo
against Syria.

Inquiry, A/HRC/19/69, 22 February 2012, p. 14; UN Report Commission of Inquiry, A/HRC/21/50, 16 August
2012, p. 15-16.
573 UN Report Commission of Inquiry, A/HRC/19/69, 22 February 2012, p.17.
574 UN Report Commission of Inquiry, A/HRC/22/59, 5 February 2013, p.119.
575 UN Report Commission of Inquiry, A/HRC/21/50, 16 August 2012, at p.2.

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4.2 How Did the Plethora of Weapons Arrive in Insurgent Hands?
Since the beginning of the conflict, the Syrian insurgency has also received contraband
weaponry from neighbouring states. Initially, weapons trafficking organisations operated on a
limited scale and were largely apolitical. Individuals and local smuggling networks obtained
weapons from commercial and civilian sources in Lebanon, Iraq, and Turkey. The irony of
weaponry being brought back into Syria that its government had previously trafficked to
insurgent groups in neighbouring countries.576

The beginning of the conflict caused a surge in regional weapon prices, with prices for
Ak-47s, sniper rifles, and handguns in Iraq nearly quadrupling. Regional sources were able to
provide a variety of weapons, including AK-47s, M-16s, shotguns, sniper rifles, rocket
propelled grenade launchers, anti-tank missiles, and Katyusha rockets, despite the high cost.
Once obtained, the weapons were transported by vehicle, donkey, or foot across Syria's
frequently unguarded border with its neighbours before being sold within the country. As the
conflict progressed and the potential for profit grew, ad hoc smuggling efforts were
supplanted by established arms trafficking and professional criminal groups.577

In 2012, a more centralised effort to acquire weaponry was initiated. Representatives of
the Free Syrian Army made contact with arms dealers in Eastern Europe and the Black Sea
region in an effort to acquire firearms for smuggling across the Turkish-Syrian border. The
Syrian rebels also sought out to Libyan armed groups for aid. The Libyan factions have
proven to be an especially vital supplier of arms for the Syrian rebels. Brokers in Libya
acquire weapons that have been provided by sympathetic groups or purchased on Libya's
thriving underground market. Once sufficient amounts have been amassed, the weapons are
transported to Syria's neighbours by water or air.578

After the Lebanese government captured 60,000 rounds of ammunition being supplied
through the northern port of Tripoli, Libyan factions have transferred the majority of their
weapons through Turkey, and in a few cases Jordan. Some smugglers have alleged that over
28 metric tonnes of weapons had been delivered through air alone, though the exact amount
is unclear.579

The attempts of Libyan brokers to arm the rebels have coincided with and possibly
been coordinated with those of Turkey, Qatar, Saudi Arabia, and Jordan. In early 2012, Qatar
and Saudi Arabia took the lead in providing active support for the insurgency. Currently, the
majority of the weapons come from Eastern Europe, Croatia, Libya, and Sudan, with Qatar
and Saudi Arabia acquiring and transferring them to Turkey and Jordan. A rough division of
labour has developed, with Qatar mostly supplying groups in the north and Saudi Arabia
supplying those in the south. The official pipeline is an order of magnitude larger than
unauthorised operations, sending an estimated 3,500 tonnes of weapons, and it is also
supplying weapons that are becoming increasingly sophisticated. At least twice in recent
years, Qatar is reported to have supplied portable anti-aircraft systems to rebels. Although it
is believed that the US has not contributed huge quantities of arms, it has played a role in
building the arms pipeline and screening the Syrian groups that receive the arms.580

576 United Nations, Security Council, Final Report of the Panel of Experts established pursuant to resolution
1929 (2010), S/2012/395, 12 June 2012, pp. 26, 64-65.
577 New York Times, ‘A Path to ISIS, Through a Porous Turkish Border’, 9 March 2015, available at
www.nytimes.com/2015/03/10/world/europe/despite-crackdown-path-to-join-isis-often-winds-through-porous-
turkish-border.html
578 Reuters, ‘Video purports to show Turkish intelligence shipping arms to Syria’, 29 May 2015, available at
www.reuters.com/article/2015/05/29/us-mideast-crisis-turkey-arms-idUSKBN0OE28T20150529
579 See Le Monde (2013), ‘Syrie : Hollande pour une livraison d’armes ‘contrôlée’ pour les rebelles’, 20
September 2013; Fox News (2013), ‘Hollande in favour of ‘controlled’ arms shipments to Free Syrian Army’,
19 September 2013.
580 See for example, L’Express (2013), ‘La France livre déjà des armes à l’opposition syrienne’, 21 March 2013

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On 29 May 2015, the Turkish newspaper Cumhuriyet published photos and video
footage of what it alleged was a convoy of trucks, leased by the Turkish National Intelligence
Organisation (MIT), carrying arms for rebel groups in Syria in January 2015.581 According to
the report, the convoy was stopped and inspected by Turkish officials and was said to be
carrying 1,000 mortars, 1,000 shells, 50,000 machine gun cartridges and 30,000 heavy
machine gun cartridges, hidden under medical supplies. Turkish President Erdoğan and Prime
Minister Davutoğlu denied that the trucks contained arms, claiming that they were carrying
aid for people of Turkish descent in Syria. In July, four prosecutors and a commander of the
local gendarmerie who stopped the trucks and ordered their search were indicted on charges
of obtaining/disclosing secret information, and “attempting to overthrow the government of
the Turkish Republic through use of violence and coercion”. In November 2015 a court in
Istanbul charged Cumhuriyet’s editor-in-chief and Ankara bureau-in-chief with “divulging
State secrets”.582 In May 2015, the New York Times reported a flourishing trade in the
fertiliser ammonium nitrate from the Turkish border town of Akcakale into IS-held territory
in Syria. Ammonium nitrate is explosive and is often used in the manufacture of IEDs.583

The weapons supply channels for Syria's insurgents are a complex, overlapping web of
State, Non-State, and criminal actors. As the war continues, these smuggling networks will
become more entrenched and vulnerable to exploitation by organised crime groups. For a
glimpse of the organised crime challenges that the Middle East may face in the coming
decade, look no further than the Balkans, where officially sanctioned smuggling routes were
quickly appropriated by crime groups after the conflicts ended.

V. THE EXISTING INTERNATIONAL LAWS AND REGULATION IN
TRANSFERRING ARMS

5.1 International Humanitarian Law
First and most importantly, IHL establishes the rights and obligations of the combatants.
Consequently, if a state becomes actively involved in an armed conflict, it is required by
definition to adhere to all applicable IHL standards. Moreover, this is crucial for the real
question of the legality of arms transfers, IHL imposes obligations on non-parties to the
armed conflict. This means that a State, even if it is not directly involved in the armed
conflict, is obligated to adhere to IHL in its contacts with the actors involved and/or impacted
by an armed conflict. This commitment of Non-State parties to the conflict is expressed
clearly in Article 1 Common to all Four Geneva Conventions, which states that "the High
Contracting Parties undertake to uphold and ensure respect for the present Convention in all
situations." This dual commitment indicates that a state has:

(a) the negative duty to refrain from itself, i.e. through its State organs or State
agents, from breaking the law of war,

581 Reuters, ‘Video purports to show Turkish intelligence shipping arms to Syria’, 29 May 2015, available at
www.reuters.com/article/2015/05/29/us-mideast-crisis-turkey-arms-idUSKBN0OE28T20150529
582 Guardian, Turkish journalists charged over claim that secret services armed Syrian rebels, 27 November
2015, available at http://www.theguardian.com/world/2015/nov/27/turkish-journalists-charged-over-claim-that-
secret-services-armed-syrian-rebels; Al Jazeera, ‘MİT tırları iddianamesi hazır’, 3 July 2015, available at
www.aljazeera.com.tr/haber/mit-tirlari-iddianamesi-hazir; BGN News, ‘Turkey’s Erdoğan threatens editor who
exposed arms to Syria’, 1 June 2015, available at http://national.bgnnews.com/turkeys-erdogan-threatens-editor-
who-exposedarms-to-syria-haberi/644; Reporters Without Borders, ‘RSF Backs Newspaper Under Attack From
President Erdogan’, available at http://en.rsf.org/turkey-rsf-backs-newspaper-under-attack-01-06-
2015,47953.html
583 New York Times, ‘Fertilizer, Also Suited for Bombs, Flows to ISIS Territory From Turkey’, 4 May 2015,
available at www.nytimes.com/2015/05/05/world/europe/fertilizer-also-suited-for-bombs-flows-to-isis-territory-
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(b) as well as the positive obligation to refrain from helping and assisting in the
commission of violations of IHL.

In light of this, the International Court of Justice has determined that a state has an
obligation not to encourage conflicting parties or groups to violate IHL.584 The International
Court of Justice also declared that every state, regardless of whether or not it is a party to a
particular dispute, is obligated not to aid or assist in sustaining an unconstitutional
situation.585The International Court of Justice also declared that every state, regardless of
whether or not it is a party to a particular dispute, is obligated not to aid or assist in sustaining
an unconstitutional situation. Thus, any states that provide or contemplate providing military
support to one of the parties in a state's armed conflict must ensure that this support is not
used to commit violations of IHL.586

Both State and non-State armed organisations infamous for committing war crimes and
other violations of the law of war are barred under IHL from receiving arms or related
materials. If not, the state commits a violation of international law, which may entail its
international responsibility.

5.2 International Human Rights Law
In regards to international HRL, the first question that arises is; does international HRL
impose similar restrictions on the permissibility of arms transfers to actors involved in an
armed conflict? The answer here is less straightforward and requires the consideration of
first, the theory of the extraterritorial application of human rights treaties, and second, the
distinction between positive and negative human rights obligations.587

The obligation to respect human rights on State Responsibility – The tripartite typology
of human rights obligations distinguishes between the obligation to respect, protect and fulfil
human rights.588 The obligation to respect human rights means that States must abstain from
destroying human rights and freedoms.589 This negative duty not to interfere with rights and
freedoms exists both in a State’s own territory and outside the State’s territory. To illustrate,
in an extraterritorial context the obligation to guarantee the right to liberty prohibits a State to
send a State agent abroad to kidnap a person. Today, the prohibition of a State to itself
perpetuate abuses abroad is widely acknowledged by both international practice and legal
doctrine.590 Several States have been criticised for intentionally killing people in other States
or for violating other human rights overseas. In this actual context, the more important
concern is whether HRL also forbids the facilitation, contribution, or support of human rights
breaches overseas, such as the transfer of arms and other military equipment to the various
parties on the ground.

584 ICJ, Wall Advisory Opinion, 9 July 2004, p.158.
585 Ibid. p.159.
586 Contrary to for example Article 16 ILC’s Articles on State Responsibility, Common Article 1 prohibits third
States to support, aid or assist in the violations of international humanitarian law irrespective whether they are
perpetrated by State or non-State actors. See also B. Kessler (2001), ‘The duty to ‘ensure respect’ under
Common Article 1 of the Geneva Conventions: its implications on international and non-international armed
conflicts’, GYIL, at pp.49-56.
587 Note: This section only analyses the legality of aid and assistance to armed groups in light of civil and
political rights. It leaves out of consideration the economic, social and cultural rights.
588 For an overview of the tripartite typology, see O. De Schutter (2010), International Human Rights Law,
Cambridge University Press, at pp.264-256.
589 M. Gondek (2008), The Reach of Human Rights in a Globalising World: Extraterritorial Application of
Human Rights Trea-ties, Intersentia, Antwerp, at p.60; S. Skogly (2006), Beyond national borders: States’
human rights obligations in international cooperation, Intersentia, Antwerp/Oxford, at p.67.
590 For an in-depth analysis, see M. De Groof, State collapse. Searching for legal protection for persons living in
a collapsed State. Somalia and beyond, book to be published at Intersentia, Antwerp, in 2014.

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5.3 International Law Commission’s Articles on State Responsibility in Arms Transfer
Since Article 16 of the ILC's Articles primarily addresses relations between States
(government to government), a more complex and contentious subject is whether a similar
obligation applies when aid or assistance is offered to armed opposition groups. In that case,
on what legal grounds may a state be held liable for transferring military equipment and
technology to irregular armed groups? In light of the legality of arms shipments to Non-State
Armed Groups, such as the situation in Syria, the State's obligation to protect human rights
and the principle of non-use of force and non-intervention are examined progressively. States
are not only obligated to'respect' human rights, but also to 'ensure' and'secure' human rights
recognised in international human rights treaties. This means that, in addition to being
required to refrain from specific conduct, states must also ensure the respect of human rights
and act accordingly.591 For instance, the need to respect the right to life precludes a state from
assassinating its own citizens and binds states to apprehend, prosecute, and punish murderers.
This commitment also necessitates that the state cannot provide a weapon to an individual
who would likely use it to kill someone. It is indisputable that the State is responsible for
facilitating or contributing to such violations if they occur within the territory or jurisdiction
of a State party to human rights treaties. It is controversial, however, whether a state may be
penalised purely on the basis of substantive HRL if it only encourages, influences, or enables
human rights violations by non-state actors in an extraterritorial environment.

Most significant civil and political rights treaties make explicit references to the
territory and/or jurisdiction of the State party in their jurisdictional clauses.592 In light of these
jurisdictional provisions, the territorial application of these treaties has frequently been
interpreted as preventing the expansive interpretation according to which a state would be
required to refrain from facilitating human rights violations by other actors abroad even in
situations where it lacks jurisdiction or control.

Some legal authors have taken a more expansive stance, arguing that 'any state activity
that interferes with or deprives people in other states of their human rights will constitute
violations of the requirement to respect,'’593 although this is not the generally recognised
view. States like as Saudi Arabia, Qatar, France, and the UK, if they send arms to Syrian
rebels, are unlikely to incur international responsibility under IHRL in the current state of the
law.

When determining whether the transfer of arms and other forms of support to armed
organisations in foreign states constitutes illegal activity, international courts typically rely on
other duties under international law. In evaluating the legality of arms transfers abroad, the
principles of non-intervention and non-use of force are of particular importance.594

5.4 The European Union Law
When a state in the EU is considering the possibility of supplying arms to formal
governments or irregular armed groups located outside of the EU, there are a number of
documents that must be taken into consideration. When it comes to controlling the export of
weaponry, both in a regional and an international context, the EU has been playing a pivotal
role for several years now. As an illustration, we will look at the two important tools held by

591 Article 16 ILC’s Articles.
592 Article 16 ILC’s Articles only concerns relations between States and is not applicable in as much as the aid
or assistance concerns entities that have no international status. See for example ICJ, Case Concerning
theApplication of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007, par. 420.
593 Article 16 ILC’s Articles.
594 See L. Zegveld (2002), The accountability of Armed Opposition Groups in International Law, Cambridge
University Press, at p.166.

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the EU, both of which have the potential to restrict the legality of the transfer of arms to
Syria.

5.4.1 Council Joint Action on Small Arms and Light Weapons
The Council Joint Action on the EU’s contribution to combating the destabilising
accumulation and spread of SALW595 is a first important instrument which recognises the
devastating effects of uncontrolled proliferation of SALW. It must be stressed that this EU
instrument only considers the export of SALW (which are listed and defined in the Council
Joint Action’s Annex), and thus it excludes from its scope of application the export of other
types of weapons. In essence, one of the important principles articulated in this Council Joint
Action is that EU Member States are committed ‘to supply small arms only to
governments’.596

The Joint Action of the Council consequently asks EU Member States to refrain from
exporting SALW to non-state actors. Since this Joint Action binds EU Member States in their
positions and actions, EU Member States should not transfer SALW to the armed opposition
groups in Syria, unless they recognise the opposition as the new legitimate government of
Syria (and thus officially rejecting the Assad regime as the organ representing the Syrian
State). Nonetheless, if an EU Member State is contemplating equipping the (recently
recognised) Syrian government, it must also consider additional European and international
norms that may justify or delegitimise such arms transfers, as outlined in the following
sections.597

5.4.2 Council Common Position on Exports of Military Technology and Equipment
The 2008 Common Position Defining Common Rules Governing Control of Exports of
Military Technology and Equipment articulates the EU export control standards.598 In effect,
this binding document recognises the responsibility of each EU Member State that exports
military technology and equipment,599 and determines that States are to prevent the export
thereof which might be used for internal repression or international aggression or contribute
to regional instability.600 Therefore, each EU Member State is compelled to assess the export
licence applications for items on the EU Common Military list against eight criteria, which
can be summarised as follows:601

(a) Respect for the international duties and commitments of Member States, in
particular the sanctions enacted by the United Nations Security Council or the
European Union, agreements on non-proliferation and other topics, and other
international obligations.

(b) Respect for human rights in the final destination country, as well as respect for
IHL by that country.

(c) Internal situation in the final destination country, as a function of the presence of
tensions or armed conflicts.

595 This Joint Action was adopted in 1998 and renewed in 2002. In this regard, see the website at
https://ec.europa.eu/commission/presscorner/detail/en/PRES_98_454 .
596 Article 3 (b) 2002 Council Joint Action see at https://ec.europa.eu/commission/presscorner/
detail/en/PRES_98_454 .
597 Preamble EU Council Joint Action 2002/589/CFSP in combination with Article 14 Treaty of Maastricht.
598 EU Common Position 2008/844/CFSP, 8 December 2008. The User’s Guide serves as a guidance to assist
Member States in implementing the Common Position.
599 EU Common Position 2008/844/CFSP, indent 3.
600 EU Common Position 2008/844/CFSP, indent 4. See in this regard also EUEA, ‘Arms Export Control’, last
consulted on 1 November 2013.
601 Article 2 EU Common Position 2008/844/CFSP, 8 December 2008. This summary is taken from the EU
External Action Service website, Op.cit.

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(d) Regional peace, security, and stability must be maintained.
(e) Buyer country behaviour in relation to the international community, particularly

its attitude toward terrorism, the nature of its alliances, and respect for
international law.
(f) National security of Member States and territories whose external relations are a
Member State's responsibility, as well as friendly and allied countries.
(g) The possibility that military technology or equipment will be diverted within the
buyer country or re-exported under unfavourable conditions.
(h) Compatibility of military technology or equipment exports with the recipient
country's technical and economic capacity, taking into account the desire of states
to meet their legitimate security and defence needs with the least diversion of
human and economic resources for armaments.
Moreover, States are required to evaluate not only applications for physical exports but
also applications for brokering licences, transit or transhipment licences, and applications for
licences for intangible transfers of software and technology against these eight criteria. A
careful reading of the Common Position leads to the conclusion that an EU Member State is
obligated not to export or deny export licences to Syria for military technology and
equipment:
(a) if this would be inconsistent with its international obligations and
commitments;602
(b) if there is a clear risk that this military technology and equipment might be used
for internal repression;603
(c) if there is a clear risk that this military technology and equipment might be used
for serious violations of IHL;
(d) if this would provoke or prolong armed conflicts or aggravate existing tensions or
conflicts;604
(e) if there is a clear risk that this would endanger regional peace, security, and
stability.605
Even though the language of the 2008 Common Position is not particularly precise, the
correct application of the rules of interpretation of the European Court of Justice permits the
conclusion that, in light of the above-described actual situation in Syria, EU Member States
are prohibited from exporting weapons to either side of the Syrian civil war. Text, context,
and intent dictate legal interpretation at the European Court of Justice: "these are the three
ways suggested early on in the Van Gend en Loos judgement by the reference to "the spirit,
the overall scheme, and the phrasing" of the legal provisions which the Court must
interpret."606
Exports to both the armed opposition and the Assad regime would immediately trigger
all five risks outlined above, which the EU sought to avoid by adopting the mandatory

602 Article 1.2 EU Common Position 2008/844/CFSP.
603 See Article 2.1 EU Common Position 2008/844/CFSP (‘shall be denied’).
604 Article 2.2(a) EU Common Position 2008/844/CFSP (‘deny’).
605Article 2.2(c) EU Common Position 2008/844/CFSP (‘deny’).345. Article 2.3 EU Common Position
2008/844/CFSP (‘shall deny’).346. Article 2.4 EU Common Position 2008/844/CFSP (‘shall deny’).
606 M.P. Maduro (2007), ‘Interpreting European Law: Judicial Adjudication in a Context of Constitutional
Pluralism’, European Journal of Legal Studies, at p.4; ECJ Case 26/62, Van Gend & Loos [1963], at p.1. On the
rules of treaty interpretation see also Articles 31 to 33 of the Vienna Convention on the Law of Treaties
(VCLT). According to Article 31 VCLT ‘[a] treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.
Article 31 of the Vi-enna Convention on the Law of Treaties forms part of the EU legal order (yet, the VCLT
only governs primary legislation of the EU) as a rule of customary international law (see, by analogy, Case C-
386/08 Brita [2010], par. 42 and Case C-466/11 Currà and Others [2012], par. 22).

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Common Position, and are thus prohibited. This is also supported by public international law
and the obligations it imposes on states.

5.5 The United Nations Actions
All UN members are bound by an obligation in Article 56 of the UN Charter “to take joint
and separate action in cooperation with the Organisation (the UN) for the achievement of the
purposes set forth in Article 55”.607 These purposes include “universal respect for, and
observance of, human rights and fundamental freedoms for all without distinction as to race,
sex, language, or religion”. 608

5.5.1 Program of Action or (POA)
In 1995 the UN launched a political process intended to combat the negative effects of small-
arms proliferation609 and misuse. POA to Prevent, Combat, and Eradicate the Illicit Trade in
SALW in All Its Aspects is the principal agreement emanating from the UN small arms
process.610 PoA, adopted at a UN conference in July 2001.611 Through a set of international
guidelines for small arms control, the PoA hopes to reduce human suffering and the
devastating consequences of gun violence.612

Given their enormous toll, particularly in Africa, one would expect tight international
control of small arms to be based on a stringent agreement with a compliance mechanism.
However, the PoA's control of small arms falls far short of such expectations. The PoA is a
shaky framework that is difficult to reconcile with the magnitude of the problem it addresses;
it also lacks key elements of arms control agreements. First and foremost, the PoA is not
legally binding. Whereas most arms control agreements take the form of treaties, the PoA is
simply a political declaration. Second, while monitoring and verification arrangements are
essential components of arms control treaties such as the Nuclear Non-Proliferation Treaty
(NPT), they are missing from the PoA. The PoA neither empowers states to monitor
compliance nor delegate verification authority to a third party. It simply requests that states
provide information on implementation on a voluntary basis.613

The PoA's weakness can also be seen in some glaring substantive omissions. Despite
the fact that non-state actors are largely to blame for armed violence, the PoA fails to prohibit
the supply of arms to unauthorised non-state actors. Guns cannot threaten, wound, or kill
without ammunition; however, the PoA does not explicitly address ammunition, dooming
efforts to combat gun violence to failure. In 2006, a UN Review Conference convened to
assess the implementation of the 2001 PoA and possibly make additional commitments.
However, the Review Conference negotiations fell through, and the Conference ended with
no outcome document.614

5.5.2 The Firearms Protocol
The 2001 Firearms Protocol was adopted on 31 May 2001 by UN General Assembly
Resolution 55/255 and entered into force on 3 June 2005. The Protocol is acknowledged in

607 Article 56 of the UN Charter, available at www.un.org/en/sections/un-charter/chapter-ix/index.html
608 Article 55(c) of the UN Charter, available at www.un.org/en/sections/un-charter/chapter-ix/index.html
609UN Document A/CONF.192/15.
610United Nations Conference on the Illicit Trade in Small Arms and Light Weapons in All Its Aspects,
New York, 9-20 July 2001.
611Program of Action, Section I, para. 2-7.
612Ibid., para.
613On the key role of state preferences in shaping international outcomes, see Morav
614Kinsella 2006, 100. The most significant source of information on small arms is a yearbook,
Small Arms Survey, published since 2001 by the Graduate Institute of International Studies in Geneva,
Switzerland.

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the 2001UN Programme of Action on Small Arms (PoA) for its ‘complementary’ nature to
the PoA. The Firearms Protocol and the PoA require implementation by States of many of the
same measures on small arms. States that implement the Firearms Protocol are therefore also
fulfilling many of the commitments under the PoA.

The UN General Assembly Resolution 55/255 adopted the 2001 Firearms Protocol on
May 31, 2001, and it entered into force on June 3, 2005. The Protocol's 'complementary'
nature to the PoA is acknowledged in the 2001 UN Programme of Action on Small Arms
(PoA). Many of the same measures on small arms are required by States under the Firearms
Protocol and the PoA. States that implement the Firearms Protocol are thus fulfilling many of
the PoA's commitments.

The Firearms Protocol was negotiated concurrently with the preparations for the July
2001 UN conference on small arms. The goal was to focus the new protocol on a narrow
crime and law enforcement approach rather than an arms control approach.615

States believed that more sensitive issues could be addressed more effectively during
the UN conference. With some significant changes, the 1997 Inter-American Convention
Against Illicit Manufacturing and Trafficking in Firearms, Ammunition, Explosives, and
Other Related Material became the model for the new Firearms Protocol. Originally intended
to be presented jointly by the governments of Canada, Mexico, and the US, Canada jumped
the gun and presented the proposal alone, with some changes, including the removal of the
reference to explosives.616

Other points of contention arose. The first was concerned whether the protocol would
apply to transfers between states, while the second was concerned with transfers to non-state
actors. States that supported regulating inter-state transfers argued that they were just as
vulnerable to diversion into the illicit market. However, strong opposition from China, Egypt,
Iran, Pakistan, and the US in particular to a broadening of the Protocol's scope, which would
limit States' latitude in responding to national security concerns, eventually prevailed.617

Language was eventually adopted to protect states' rights to transfer firearms "in the
interest of national security consistent with the UN Charter." However, because the Protocol
does not specify any conditions under which a State may or may not transfer firearms,
attempts to qualify the types of transfers to which it applies appear superfluous in
retrospect.618

In terms of marking and tracing, Canada, Mexico, and the US advocated for the use of
numeric and alphanumeric codes at points of manufacture, import, and decommissioning,
whereas other countries, including China and some former Soviet republics, preferred the use
of symbols. The negotiations resulted in language that allows both marking systems, with a
transition period in which symbols and other difficult-to-read markings will be gradually
phased out.619

Meanwhile, negotiations on the United Nations Transnational Organisation Crime
Convention and its accompanying protocols continued apace. States held what was supposed
to be a final negotiating session in October 2000. However, they were unable to reach an

615S. Parker and M. Wilson, A Diplomat's Guide to the UN Small Arms Process, Small Arms Survey, 2012, pp.
39–40.
616 L. A. De Alba Góngora, ‘Las negociaciones sobre armas pequeñas y ligeras: una visión multidimensional’,
Revista Mexicana de Política Exterior, No. 75, July–October 2005, p. 112.
617 G. McDonald, ‘Strengthening controls: Small arms measures’, in: Small Arms Survey 2002: Counting the
Human Cost, Cambridge University Press, 2002, p. 239; De Alba Góngora, ‘Las negociaciones sobre armas
pequeñas y ligeras: una visión multidimensional’, p. 112.
618 S. Parker and M. Wilson, A Diplomat's Guide to the UN Small Arms Process, Small Arms Survey, 2012, p.
36.
619 De Alba Góngora, ‘Las negociaciones sobre armas pequeñasy ligeras: una visión multidimensional’, pp.
112–3.

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agreement on the issue of firearms, and the negotiation mandate expired. The Transnational
Organised Crime Convention, along with its two other protocols on human trafficking and
migrant smuggling, was opened for signature in December 2000. The Firearms Protocol was
eventually adopted a few months later, in May 2001.620

At the point of manufacture, States commit to ensuring that firearms are marked with:
(a) “a unique marking providing the name of the manufacturer, the country or place

of manufacture, and the serial number, or
(b) an alternative marking using simple geometric symbols in combination with a

numeric and/or alphanumeric code, allowing quick identification of the country
of manufacture.”621
States also commit to maintaining for at least ten years records of information
pertaining to firearms, and, if possible, their parts and components, so as to allow their
tracing.622 Illicit manufacturing must be criminalised, as must be the deliberate obliteration,
removal or alteration of markings.623States commit to confiscating, seizing, and destroying
illicitly manufactured firearms, their parts and components, and ammunition, unless another
means of disposal is officially authorised.624In addition, States that do not include deactivated
firearms in the scope of the national firearms law must ensure that such firearms are not
illicitly reactivated, by inter alia criminalising illicit reactivation.625
When transferring weapons from government stockpiles to permanent civilian use,
firearms must again be marked.626In addition, many provisions relate to cross-border
movement of firearms. First, States must establish a system of licensing or authorisation of
import, export, and transit of weapons, to ensure that firearms do not cross their border
without their awareness and consent.627States are encouraged (but not obliged) to regulate
arms brokers, for example through registration, licensing or authorisation, and transparency
measures.628
Imported firearms must be marked so as to enable identification of the country of
import, and, if possible, the year of import.629Illicit trafficking must be established as a
criminal offence,630 and illicitly trafficked firearms must be confiscated, seized, and
destroyed, unless some other means of disposal is officially authorised and the firearms have
been marked accordingly.631

5.5.3 Blanket Arms Embargoes by the UN
The UNSC routinely employs arms embargoes as a tool to combat violent conflict. During
the cold war, the Security Council could only agree on two arms embargoes (on Rhodesia and
South Africa). However, between 1990 and 2013, the Council agreed on arms embargoes in
16 different conflict zones in an effort to either reinstate legitimate governments or prevent
arms supplies from fuelling ongoing conflicts.632

620 The Firearms Protocol and the Arms Trade Treaty: Divergence or Complementarity? United Nations Office
on Drugs and Crime. https://www.unodc.org/documents/firearms-protocol/SynergiesPaper.pdf
621 Firearms Protocol, 2001, Art. 8. https://www.unodc.org/documents/firearms-protocol/SynergiesPaper.pdf
622 Firearms Protocol, 2001, Art. 7. https://www.unodc.org/documents/firearms-protocol/SynergiesPaper.pdf
623 Firearms Protocol, 2001, Art. 5. https://www.unodc.org/documents/firearms-protocol/SynergiesPaper.pdf
624Firearms Protocol, 2001, Art. 6. https://www.unodc.org/documents/firearms-protocol/SynergiesPaper.pdf
625Firearms Protocol, 2001, Art. 9. https://www.unodc.org/documents/firearms-protocol/SynergiesPaper.pdf
626Ibid, Art. 8.
627Ibid, Art. 10.
628Ibid, Art. 15.
629Ibid, Art. 8.
630Ibid, Art. 5.
631Ibid, Art. 6.
632 SIPRI Arms Embargoes Database,. On the attention given by the UN Security Council to armed conflicts see
chapter 2, section II, in this volume.

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In eight cases of violent intrastate conflict, the Council opted to prohibit the supply of
arms to all parties by imposing blanket arms embargoes. For instance, in early 2011, just
prior to the outbreak of the Syrian conflict, the Security Council unanimously agreed to
impose an arms embargo on Libya as a result of the government's "gross and systematic
violation of human rights."633

The situation regarding Syria was markedly different. Disagreements within the UN
Security Council on whether to threaten or impose an embargo on Syria emerged soon after
the conflict started, in 2011.634 Russia and China vetoed a draft UN Security Council
resolution introduced by four European Union (EU) member States in October 2011 that
threatened (but did not impose) sanctions.635 In doing so, they stressed the principle of non-
interference in the internal affairs of States, highlighting the fact that the resolution focused
solely on exerting pressure on the Syrian Government and not the opposition, and expressed
the concern that threatening sanctions might ultimately result in military intervention, as in
the case of Libya.636 Statements by Russian officials suggested that Russia’s strong
disagreement with several other States’ interpretation of the UN arms embargo on Libya in
2011 as allowing arms supplies to rebel forces contributed to its opposition to an arms
embargo on Syria.637 After this experience, Russia had major doubts that an arms embargo on
Syria would be fully enforced.638

In the light of continuing opposition from Russia and China, no similar draft resolution
was presented in 2012 or 2013.639 Even the Security Council’s resolution adopted in response
to the use of chemical weapons in Syria did not include explicit threats to impose an arms
embargo on any party to the conflict.640

In May 2011, the EU imposed sanctions on Syria that included a total ban on the
transfer of arms and military equipment to Syria's territory. Since 1989, the EU has enforced
comprehensive arms embargoes in response to intrastate or interstate armed conflict, internal
repression, and human rights breaches.641 In other cases of armed conflict, however, no
agreement could be reached on an arms embargo, and a number of EU states, including those
of Afghanistan, Iraq, and Israel, continue to provide weapons to governments actively
engaged in armed conflict.

VI. THE ARMS TRADE TREATY

6.1 Introduction to the Treaty
The ATT sets standards for the worldwide transfer of conventional weapons and aims to
eliminate the illegal arms trade. It aims to decrease human suffering caused by illegal and
irresponsible arms transfers, enhance regional security and stability, and increase
accountability and transparency on the side of State parties in relation to transfers of

633 UN Security Council Resolution 1970, 26 Feb. 2011.
634 On the development of the conflict in Syria see Allansson, M. et al., ‘The first year of the Arab Spring’,
SIPRI Yearbook 2012; and Allansson, M., Sollenberg, M. and Themnér, L., ‘Armed conflict in the wake of the
Arab Spring’, SIPRI Yearbook 2013.
635 United Nations, Security Council, ‘France, Germany, Portugal and United Kingdom of Great Britain and
Northern Ireland: draft resolution’, S/2011/612, 4 Oct. 2011.
636 United Nations, Security Council, 6627th meeting, S/PV.6627, 4 Oct. 2011, pp. 3–5.
637 On the interpretation of the embargo see Wezeman, P. D. and Kelly, N., ‘Multilateral arms embargoes’,
SIPRI Yearbook 2012, pp. 432–34.
638 E.g. Joon, S., ‘UN chief confronts Syria impasse with arms embargo call’, Sydney Morning Herald, 21 June
2014.
639 UN Security Council Resolution 2118, 27 Sep. 2013. On the chemical weapon aspects of the conflict in Syria
see section III below and chapter 8, section I, in this volume.
640 SIPRI Arms Embargoes Database (note 3).
641 Council Common Position 2008/944/CFSP (note 2).

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conventional weapons. The ATT, which became available for signature on 3 June 2013, is the
world's first multilateral treaty on the international trade of conventional weapons. It aspires
to limit the illicit arms trade by establishing consistent criteria for the $40 billion legal
international trade in weapons.642

The text of the ATT was adopted by consensus at the UN General Assembly in April
2013 after years of negotiations. The ATT quickly received the required 50 ratifications to
become legally binding on all States parties on December 24, 2014. The treaty has 78 states
as parties, and another 52 states have signed it. States that have signed but have not yet
ratified the ATT, such as the US, are bound not to do anything that would undermine the
treaty's object and purpose.643As of August 2020, 109 states had ratified or acceded to the
ATT, including six of the top ten arms producers in the world (France, Germany, Spain,
China, the UK, and Italy). Twenty-one ratifying states had provisionally applied articles 6
and 7 of the treaty, pending its entry into force.644

6.2 Object and Purpose of the Treaty
The object of this Treaty is to:
(1) “Establish the highest possible common international standards for regulating or
improving the regulation of the international trade in conventional arms;
(2) Prevent and eradicate the illicit trade in conventional arms and prevent their
diversion; for the purpose of: Contributing to international and regional peace,
security and stability;
(3) Reducing human suffering; Promoting cooperation, transparency and responsible
action by States Parties in the international trade in conventional arms, thereby
building confidence among States Parties.”645
The ATT is the first worldwide treaty regulating the international transfer of arms, a

poorly regulated trade that has historically contributed to grave abuses of international human
rights and IHL around the world. It is also the first international treaty to combine
international HRL, IHL, and criminal law standards with other international norms to provide
benchmarks for evaluating the authorisation of exports and other transfers of conventional
weapons. As a norm of due diligence, the ATT requires State parties to carry out certain
responsibilities to verify that all feasible steps have been taken to prevent transfers that could
result in grave abuses of human rights. The centrepiece of the ATT is the obligation in
Articles 6 and 7 that countries refrain from selling arms where the weapons will be used to
undermine the Treaty's humanitarian purposes. Arms transfers that contribute to or fuel
atrocities, human rights violations, violations of the laws of armed conflict, terrorism, or
transnational organised crime will be stigmatised severely by these provisions. The Treaty
stigmatises such transfers by prohibiting arms exports under specific conditions, most notably
where the exporter is aware that the importer would use the weapons to commit genocide,
crimes against humanity, or war crimes. Under no circumstances may a State Party transfer
arms when it knows they will be used to commit these crimes.

642 Richard F. Grimmitt & Paul K. Kerr, Cong. Research Serv., R42678, Conventional Arms Transfers to
Developing Nations, 2004–2011 3–4 (2012) (“The value of all arms transfer agreements worldwide in 2011 was
$85.3 billion. This was an extraordinary increase in arms agreement values (91.7%) over the 2010 total of $44.5
billion. The value of all international arms deliveries in 2011 was nearly $44.3 billion.”).
643 Vienna Convention on the Law of Treaties, Article 18. This is recognized as customary international law.
644 "Arms Trade Treaty: Treaty Status". United Nations. 3 October 2016. Archived from the original on 23
September 2016. Retrieved 3 October 2016.
645 ATT, Article 1, available at https://unoda-web.s3.amazonaws.com/wp-content/uploads/2013/06/English7.pdf

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6.3 Provisions of the Treaty
A further important aspect of the ATT is its mandate that all States Parties construct and
enforce a national mechanism to control the flow of arms into and out of their territory. Prior
to the ATT, while many nations had sophisticated import and export control systems, the bulk
of the world either had drastically inadequate systems or none at all. If all countries adopt at
least a rudimentary import and export control system, illegal arms dealers will have difficulty
finding a safe haven to base their operations, will struggle to identify transit countries that
will allow the flow of illegal arms shipments, and their revenues will finally dry up.646

While the Treaty requires all Parties to adopt a basic control regime, States are free and
encouraged to impose further restrictions on the arms trade. Many treaty negotiators claimed
that it is illogical for countries that do not export weapons and import a modest quantity of
weapons to restrict arms transfers at the same level as large arms exporters. Similarly, states
who, due to their geographic location, do not serve as transit points for arms will not be
required to implement stringent controls on the transit and transshipment of arms. Thus, the
Treaty permits countries to develop a system that achieves the Treaty's objectives without
imposing a costly one-size-fits-all framework.

States Parties are obligated to "take adequate steps to implement and enforce national
laws and regulations that implement the provisions of this Treaty" at the national level. Due
to the absence of a supranational entity responsible for executing the treaty, the demand that
States Parties share information is a prerequisite for accountability. The Treaty mandates that
States Parties maintain records on transfers and provide statistics on transfers in annual
reports so that the appropriateness of transfers can be evaluated by other governments and
citizens.647

6.4 Scope of the Treaty
The ATT applies to the export, import, transit, trans-shipment, and brokering of conventional
weapons. While the Treaty lists specific weapons covered,648 it encourages States Parties to
“apply the provisions of this Treaty to the broadest range of conventional arms.”649 The
Treaty does not apply to weapons of mass destruction (such as chemical, biological, or
nuclear weapons), nor does it apply to the internal trade, manufacture, or use of firearms. In
fact, the Treaty explicitly States that it is “the sovereign right of any State to regulate and
control con- ventional arms exclusively within its territory, pursuant to its own legal or
constitutional system.”650

646Press Release, United Nations, New Round of Negotiations Gets Under Way to Reach Consensus on Binding
Treaty to Control Cross-Border Trade (Mar. 8, 2013), http://www.un.org/News/Press
/docs/2013/dc3420.doc.htm (“While the inter- national arms trade affected every country, more than 100 States
today did not have a system for control of international conventional arms transfers.”).
647 Arms Trade Treaty, supra note 17, at art. 14.
648The categories of arms listed include: battle tanks; armored combat vehicles; large-caliber artillery systems;
combat aircraft; attack helicopters; warships; missiles and missile launchers; small arms and light weapons;
ammunition fired, launched or delivered by the arms listed above; and asso- ciated parts and components. Arms
Trade Treaty, art. 2, Apr. 2, 2013, http://treaties.un.org/doc/Treaties/2013/04/20130410%2012-
01%20PM/Ch_XXVI_08.pdf.
649Arms Trade Treaty, art. 5.3, Apr. 2, 2013, http://treaties.un.org/doc/Treaties/2013/04/20130410%2012-
01%20PM/Ch_XXVI_08.pdf.
650Arms Trade Treaty, art. 5, Apr. 2, 2013, at Preamble. http://treaties.un.org/doc/Treaties/
2013/04/20130410%2012-01%20PM/Ch_XXVI_08.pdf.

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6.5 The Overlap between the ATT and Existing Instruments
The ATT overlaps with existing instruments in a number of important ways: it addresses the
same sorts of arms and transactions and activities. However, there are overlaps in terms of
implementation activities.

(a) Scope of Arms: While the PoA and ITI (Illicit Trade In SALW) only explicitly
cover SALW, and the Firearms Protocol only covers firearms, ammunition, parts
and components, the ATT encompasses the entire spectrum of conventional
weapons, as well as ammunition and parts and components. Thus, the ATT fills
one of the loopholes in the PoA, which does not include ammunition clearly.651

(b) Scope of Transactions: Although the PoA and the Firearms Protocol cover a
limited number of types of arms, they contain a wide range of control
mechanisms and activities. The ATT, on the other hand, encompasses a greater
variety of conventional weapons but only addresses one key part of the control
system: international transfers (including export, import, transit or transshipment,
and brokering). Notably, the Firearms Protocol does not apply to interstate or
intrastate transactions when national security interests would be compromised.
The ATT, on the other hand, contains no such exclusion and applies to all
transfers as defined by the treaty, so addressing one of the Firearms Protocol's
shortcomings.652

(c) Implementation: In addition to sharing features of scope, the instruments have
similar or complimentary obligations. Some ATT commitments closely resemble
current international transfer commitments. The Firearms Protocol, the PoA, and
the ATT, for instance, all include provisions for restricting the export, import,
transit or transshipment, and brokering of guns, as well as agreements to maintain
records of arms transactions. In many situations, ATT clauses also serve to
establish benchmarks and clarify ambiguous commitments. The PoA, for
instance, requires States to evaluate export authorisations in accordance with
existing responsibilities under applicable international law, but it does not specify
what factors should be applied beyond the risk of diversion into illegal trade.653
The ATT highlights several of these "existing responsibilities" and provides a list
of the factors that State parties must consider when evaluating export
authorisations.654

In certain instances, the ATT goes beyond existing documents, such as by establishing
express restrictions on the transfer of small arms, ammunition, and parts and components.

Nevertheless, while many ATT provisions complement and even build upon existing
obligations, some are inconsistent and others actually weaken previous commitments and
emerging standards in this area. For instance, the ATT rules on import and transit are littered
with qualifying language, in which States are only required to take measures to limit imports

651McDonald, Glenn. 2005. ‘Locking onto Target: Light Weapons Control Measures.’ In Small Arms Survey.
Small Arms Survey 2005: Weapons at War. Oxford: Oxford University Press, pp. 123–41.
652UNGA (United Nations General Assembly). 2001a. Programme of Action to Prevent, Combat and Eradicate
the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (‘PoA’). A/CONF.192/15 of 20 July. July.
<http://www.poa-iss.org/poa/poahtml.aspx>
653Protocol against the Illicit Manufacturing of and Trafficking in Firearms, Their Parts and Components and
Ammunition, Supplementing the United Nations Convention against Transnational Organized Crime (‘Firearms
Protocol’). 2001b. A/RES/55/255 of 8 June. <http://www.unodc.org/documents/treaties/UNTOC/Publications/
TOC%20Convention/TOCebook-e.pdf>
654 UNGA, 2013, art. 8.2. Available at, http://www.unodc.org/documents/treaties/UNTOC/Publications/
TOC%20Convention/TOCebook-e.pdf

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"where necessary" and to take measures to regulate transit "when necessary and possible."
The Firearms Protocol, which is similarly legally binding, does not contain such qualifiers.655

VII. REGULATING TRANSFER OF ARMS IN IRAQ AND SYRIA

7.1 The Important Role of the United Nations Security Council
One of the important roles of the UN is to immediately impose an immediate comprehensive
arms embargo on the Syrian government. Also to expand the mandate of the UN Assistance
Mission in Iraq (UNAMI) to include technical, institutional, or other advice, support, and
assistance to the Iraqi government in the following areas:

(a) establishing robust arms control systems based on international standards,
exercising greater due diligence in monitoring, managing, distributing, and using
conventional arms imported for the Iraqi armed forces and police;

(b) ensuring that arms stockpiles and holdings are secure, including the use of
chemical weapons; and ensuring that weapons stockpiles and holdings are
Combating corruption, illegal trade, and diversion of weapons and ammunition
within the military and police forces.

As a necessary consequence, while assisting the Iraqi government, UNAMI should
collaborate with and draw on the expertise of relevant UN specialised agencies, such as the
UN Office for Disarmament, the UN Institute for Disarmament Research, and the UN Office
on Drugs and Crime.656

China, France, Russia, the UK, and the US, which have been entrusted by the UN
Charter with a special responsibility to uphold and maintain international peace and security,
should take every step to ensure that the above implications are fully implemented.

7.2 The Role of States Supplying Arms in Iraq and Syria
Any state contemplating arms transfers to armed forces in contested areas must first invest
heavily in pre- and post-delivery controls, training, and monitoring that meet international
standards for the management and use of such weapons.

Preventing arms proliferation; States can draw lessons from previous failures and take
immediate steps to prevent future arms proliferation in Iraq, Syria, and other volatile
countries and regions. As a direct consequence, the Syrian crisis highlights the urgent need
for common-sense rules to prevent the international transfer of weapons, particularly when
there is a substantial risk of human rights abuses or the weapons are going to States under
international arms embargoes. Implementing effective strategies to prevent the excessive
accumulation of conventional weapons in unstable regions with dangerous arms circulation in
order to halt a persistent pattern of armed violence, including gender-based violence and
other serious violations of international human rights and IHL.

Developing strategies and measures for the collection and destruction of weapons,
environmental cleanup, and the stabilisation, demobilisation, disarmament, and reintegration
(DDR) of armed groups and unauthorised users in Iraq and Syria;

Promoting international cooperation and assistance, including information sharing, to
strengthen guiding principles for the marking and tracing of SALW in order to combat the
illicit trade and diversion of arms, as well as providing practical assistance and information,
as well as establishing criminal sanctions, to help combat violations of UN arms embargoes,
in particular, to prevent attempts by IS to rearm.

655 UNGA, 2013, art. 10. Available at, http://www.unodc.org/documents/treaties/UNTOC/Publications/
TOC%20Convention/TOCebook-e.pdf
656 Amnesty International Fact Sheet ‘’Timeline of Arms Trade Treaty Campaign Landmarks’’,
ACT/30/016/2013, March 4, (2013).

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Furthermore, neighbouring countries should strengthen border security to combat the
illicit flow of conventional weapons and ammunition, including SALW, while ensuring
unhindered humanitarian access to all areas of Iraq and Syria and safe passage for those
displaced by the conflict.

Promoting and supporting a new approach to security sector reform (SSR) in Iraq and
Syria that prioritises compliance with international human rights and IHL in institutional
practices and operational training in the use of force. Also supporting and encouraging
international dialogue to incorporate human rights respect into strategies to prevent potential
future armed conflicts in the region, as well as to ensure effective and long-term post-conflict
reconstruction in Iraq and Syria.

States must also support current global initiatives to prevent the proliferation and
misuse of SALW, including by implementing the provisions outlined in the UN POA to
Prevent, Combat, and Eliminate the Illicit Trade in SALW in all aspects and Related
Standards, and the UN Firearms Protocol supplementing the UN Convention Against
Transnational Organised Crime.657

Promoting international cooperation and assistance, including information sharing, to
reinforce best practice for the marking and tracing of SALW so as to combat the illicit trade
and the diversion of arms.

7.3 The Role of Corporations Supplying Arms in Iraq and Syria
Under international law and standards, corporations involved in military goods play an
important role in controlling the transfer of arms. Regardless of the responsibilities of states,
companies involved in the manufacture, financing, brokering, and transportation of military
goods must implement their own safeguards to ensure that they are not complicit in serious
violations of international humanitarian and HRL.

"The responsibility to adhere to human rights is a global standard of expected conduct
for all corporate entities wherever they operate," according to the UN Guiding Principles on
Business and Human Rights. It exists independently of a state's ability or willingness to
satisfy its own human rights obligations, and it has no bearing on those obligations, and it
exists in addition to national laws and regulations protecting human rights." These principles
require corporations to conduct a reasonable due diligence analysis of the potential human
rights impact of their operations, including operations throughout their entire supply chain.
Companies that manufacture and transfer military equipment and other military commodities
must assess the risk that their products will be used to commit or facilitate serious violations
of international human rights or IHL.658

Companies, in accordance with the UN Guiding Principles on Business and Human
Rights, should take action to mitigate any risks identified; such mitigation may include
refusing to supply or carry goods where there is a reasonable risk that the goods will be used
to commit or facilitate serious violations of international human rights or IHL.

7.4. Controlling Arms Transfer to Iraq
Decades of irresponsible arms transfers to Iraq fuelled ISIS's firepower and ability to commit
mass atrocities. It is time to demand stricter controls in order to halt the alarming fallout from

657 Amnesty International, ‘’taking stock: The Arming of Islamic State Eradicate the Illicit Trade in Small Arms
and Light Weapons in All Its Aspects and related standards on small arms and light weapons, and the UN
Firearms Protocol supplementing the UN Convention Against Transnational Organised Crime’’, MDE 14/2812,
(2015).
658 UN Guiding Principles on Business and Human Rights. The Human Rights Council endorsed the Guiding
Principles in its resolution 17/4 Principle 11, 16 June (2011), www.ohchr.org/Documents/Publications/
GuidingPrinciplesBusinessHR_EN.pdf

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the country's weapon proliferation. In order to avoid repeating this experience, several serious
actions should be taken.

The importance of post-delivery checks in controlling arms transfers to Iraq cannot be
overstated. In a region where armed groups have wreaked havoc and caused immense human
suffering, the US and all countries supplying arms to Iraq must urgently solidify checks and
controls. They must also adopt a "presumption of denial" rule on arms exports to Iraq, which
means transfers can only take place after strict risk assessments. Military or police units in
Iraq selected for exceptions must first demonstrate that they strictly and consistently respect
international human rights and IHL, as well as that they have the necessary control
mechanisms in place to ensure that weapons are not diverted to armed groups.

Any flaws in the transfer chain greatly increase the risks, therefore Iraq should fully
comply with the UNSC arms embargo on IS and cooperate fully and transparently with the
Monitoring Team assisting the Al-Qaida Sanctions Committee in evaluating the sanctions
regime's implementation.

7.5 The Role of Iraqi Government
The Iraqi government should adopt effective control systems that are based on international
standards and exercise greater due diligence when monitoring, managing, dispersing, and
using conventional weapons that are imported for the use of the Iraqi armed forces and
police.

The Iraqi government should also take more serious action to control the transfer and
use of arms in Iraq, by investing more resources to ensure that arms stockpiles and holdings
are secure, including for the marking, registration, and training of the Iraqi armed forces and
police. Take measures to combat corruption and the illicit trade and diversion of weapons and
ammunition from within the military and police forces. Additionally, the Iraqi government
should also accede to the ATT and take swift steps to implement the Treaty as soon as
possible.

7.6 Controlling Arms Transfer to Syrian Government and Opposition Groups
Syria is one of the regions with the greatest need for effective arms transfer and controls, as
well as targeted cooperation and assistance work. The region is currently burdened by a
variety of armed conflicts fuelled by licit and illicit arms flows.

The proliferation and diversion of illicit arms, in particular, has fuelled civil wars and
other conflicts. Meanwhile, weapons trafficked and diverted arm terrorist organisations,
which threaten local populations, destabilise states, conquer territory, divert resources, and
commit international terrorism. The methods by which these weapons reach these groups
highlight the need for stricter standards in both arms transfer and control.

The Syrian Civil War represents one of the world's deadliest ongoing conflicts. To
sustain the conflict for more than five years, all parties have used a diverse range of
conventional and unconventional weapons, such as the chemical weapons mainly used by the
Assad regime. Armed opposition groups, on the other hand, have obtained weapons from a
variety of sources, including foreign governments, illicit arms markets, Syrian national
stockpiles, and battlefield captures.

Syria is overflowing in weapons, raising concerns about the long-term consequences of
a steady supply of arms in the vicinity of the country's civil war. The diversity of weapons
suppliers and the availability of weapons in Syria pose a range of long-term challenges and
risks. One effect of the constant supply of weapons has been to keep the conflict going. Arms
transfers to all parties fighting in Syria's civil war have helped resupply depleted stocks,
expand military capabilities, and contribute to escalatory exchanges throughout the conflict,
with civilians bearing the brunt of this dynamic.

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To control arms transfers to Syria, all states should be urged to impose a cumulative
embargo on Syrian government forces as well as armed opposition groups implicated in war
crimes, crimes against humanity, and other serious human rights violations. They should also
stop any transfers of weapons, munitions, military technology, and other supplies to the
Syrian government, pro-government militias, and armed opposition groups that have been
linked to war crimes, crimes against humanity, other major human rights abuses, and
violations of international human rights and IHL; additionally, the UN should immediately
impose a comprehensive arms embargo on the Syrian government to stop further arms
proliferation.

VIII. CONCLUSION
Conventional weapons have killed more people in history than all nuclear, chemical, and
biological weapons ("NCB weapons") combined with all swords and spears. Nonetheless, in
the history of international law, the control of conventional weapons has been one of the
greatest shortcomings. Almost all mass violence in recent memory has involved conventional
weapons, and the vast majority of victims of conventional arms-fuelled violence are civilians.

The failure of the international community to regulate the transfers of major
conventional weapons also contributed to the Iraqi invasion of Kuwait, and during the
subsequent war, some members of the US-led coalition engaged in battle using their own
weaponry. Unfortunately, the world's most important arms producers have failed to learn the
important lessons of the Gulf War; rather than exercising greater caution in their international
arms sales, these countries have bowed to economic pressures, selling greater amounts of
ever-more-advanced weapons to unstable nations.

As demonstrated in this article, the transfer of conventional weapons is not a highly
regulated activity under international law. Surprisingly, even weapons whose use would
appear to violate IHL due to their inherent characteristics may be transferred, and HRL does
not restrict the transfer of conventional arms that are likely to be used to commit serious
human rights violations in times of peace.

This research addressed the inconsistency between practice and law in the transfer of
conventional arms between supplier and consumer States, as well as providing the first
overview of the range of arms transfer and control related cooperation and assistance
activities undertaken by Middle Eastern States. We emphasised the availability of
conventional weapons in the Middle East by focusing on conflict areas in the region to better
understand why the Middle East is a region where strengthened arms transfer and controls are
especially needed. While a variety of factors mean that States in the region are unable or
unwilling to request assistance or participate in activities, the Middle East is one of the
regions with the greatest need for effective arms transfer controls, as well as targeted
cooperation and assistance work, as the region is currently suffering under the weight of a
variety of armed conflicts that are fed by licit and illicit arms flows. The methods by which
these weapons reach these groups highlight the need for improved standards in both
conventional arms transfer and control. At the same time, many of the region's States are
undertaking ambitious military build-ups, which have the potential to further erode the
region's often-limited levels of interstate trust and confidence. These build-ups highlight the
importance of effective arms procurement and import controls to ensure that any arms
acquired are in line with national needs and reach their intended end-users. They also
emphasise the importance of effective transparency and reporting measures as a key
component of any effective arms transfer control system to ensure that States' true intentions
are not misconstrued.

This research has also confirmed that the irresponsible arms transfers and the failure to
control the resulting stockpiles are a major source of untold human suffering in many

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countries, including Iraq. All of the armed groups accused of serious human rights violations
and violations of IHL have used weapons and ammunition smuggled out of Iraqi military
stocks, often through illegal markets. IS has proven particularly adept at profiting from the
ongoing leakage of Iraqi military stocks, seizing arms and ammunition at every opportunity
and using them to commit atrocities across Iraq and Syria. At the time that IS emerged, Iraq
was awash with weapons and ammunition; for years the Iraqi government’s military stocks
were poorly managed and not secured, rendering them vulnerable to capture by armed groups
and private individuals. When IS began to expand the territory under its control in 2013 and
2014, mass desertion from Iraqi army units left huge quantities of military equipment
exposed to looting. Well equipped with these seized weapons, IS was able to capture further
territory and further weapons caches including from armed forces and opposition groups in
Syria. IS’ current arsenal includes equipment from irresponsible arms supplies to Iraq
organised by permanent members of the Security Council (the P5) and their allies during the
Iran-Iraq war, and arms supplied to Iraq by the US-led coalition and other States since the
invasion of Iraq in 2003. The Iraqi military’s poor management of arms was well known to
all States that transferred weapons to Iraq post 2003. Throughout the period from 2003 to
2008, armed groups operated in Iraq and were known to loot weapons that had been
transferred for use by the Iraqi security forces. Those armed groups carried out indiscriminate
attacks on civilian populations.

In particular, a pattern of large military build-ups followed by conflict and the collapse
of government control has led to significant increases in the volume of illicit conventional
arms and light weapons. Therefore the researcher illustrated the significant and ongoing
military build-ups by giving some examples of some of the continuing build-up of domestic
industries and building facilities for licensed arms production in the area, also the demands
for Arms in the Middle East and its consequences as the Irresponsible transfers of arms and
failure to control as the resulting stockpiles are a major cause of untold human suffering in
some countries such as Iraq and Syria, also showed how this resulted in opportunistically
seizing arms and ammunition, by Armed groups and using them to commit atrocities across
the two conflict areas in Iraq and Syria.

States must learn the lessons of the deadly legacy of arms proliferation and abuse in
Iraq and the surrounding region, which has destroyed the lives and livelihoods of millions of
people, and which now poses a dire threat to the people of Iraq, Syria and the wider
international community. This catastrophe is another wakeup call. All States must take a long
view and conduct much deeper institutional risk assessments for arms export decisions and
act with much greater precaution and restraint when transferring and managing arms.

At the two votes on the UN General Assembly resolutions in 2006 and 2008, over 150
countries said they wanted stronger international standards for the arms trade because there is
currently no international regulation of this trade. The widespread view that international
arms transfers need to be controlled to prevent such transfers from fuelling violence and
armed conflict were reaffirmed in 2013 when a large majority of States adopted the ATT, the
first international treaty aimed at regulating the arms trade. Among other things, the treaty
prohibits a State party from authorising the transfers of arms if that State has knowledge that
the transferred arms would be used in the commission of genocide, crimes against humanity
or war crimes. Moreover, the treaty requires that the exporting State, prior to authorising
exports of arms, must assess the potential for those arms to undermine peace and security or
be used to commit serious violations of IHL or international HRL.

The acceptance in 2013 of the ATT by most States, or support of at least the ATT’s
main principles by several others such as Russia and China, coincided with major
disagreements among States about how to deal with arms supplies to one of the deadliest
ongoing conflicts, which has been marred by gross violations of human rights and IHL. States

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had highly varied views on whether such arms supplies can or cannot contribute to
establishing peace and security in Syria. Even within the EU, with its long history of closely
restricting arms exports and harmonising arms exports policies and its strong support for the
ATT, States could not reach an agreement on the risks or utility of supplying arms to certain
armed groups in Syria.

The ATT was the product of diplomatic negotiation, the first elf at agreeing legal
restrictions on the transfer of conventional arms in the 1945 era. Its achievements and failings
are the result of the compromises inevitable in normal multilateral negotiations which require
unanimous approval to achieve a result. It would certainly have been possible to have
produced a much stronger Treaty which would have commanded a clear majority in the UN
General Assembly. Such a document, however, would probably have lost the support of
many of the more active proponents of the EU and also the USA, as was triggering outright
opposition from many of the abstainers, for the consensus principle exerts strong force in
international law and relations, particularly among smaller and relatively weak States.' What
emery would have had much reduced moral force, and even less practical value.

The price paid for consensus is the sacrifice of the best, or dilution of the desirable. The
ATT imposes binding obligations in international law upon those who ratify it, and lesser
ones on those who merely sign it. Yet international law is not the level at which an effective
Treaty will have its greatest impact. The baton has now been passed from international
lawyers and diplomats to administrative lawyers and public officials. What matters most is
how its provisions are translated into domestic policy and administrative law and practice.
That depends in part on a range of institutional and technical matters common to all
implementations of international agreements, such as the general quality of the national civil
service, including the legal support and advice it can draw upon. However, factors particular
to ATT implementation will enhance the difficulties. These concern the calibre and training
of the customs authorities and the police, especially with respect to techniques of detection of
contraband, their understanding of some of the aspects unique to arms sales such as end-user
certificates and above all, their immunity from corruption. International cooperation
measures, including training and other aspects of so-called capacity building, will certainly be
of value. These are specifically encouraged by the Treaty, with anti-corruption measures
singled out for special attention. Yet it would require an inordinate degree of optimism to
believe that corruption at this level will end anytime soon, especially because low-level
enforcement officials in countries of the South are generally very poorly paid, and those
profiting from illegal weapons shipments can offer comparatively vast sums.

In a nutshell, the popular "merchants of death" argument will continue. However,
continued monitoring of exports is necessary, and diplomatic efforts at exchanging
information among weapons-exporting States will continue to be useful, whatever their
limitations and the always dubious veracity of figures in this murky trade. The concern of
arms-control proponents and their appeal for undertaking massive studies on arms
proliferation will not visibly diminish, but, for all practical purposes, the export of
conventional weapons in the foreseeable future will continue to be governed by market forces
and not by political agreements. Therefore, a mechanism should be in place to start instituting
the underpinning international and national law that will allow the UN system to function
adequately. UNSC arms embargoes have declaratory power but have frequently failed to stop
the flow of arms, owing to a lack of enforcement mechanisms. To succeed, the US and other
major weapons exporters, including Russia and China, must prioritise people over profits in
upcoming negotiations to end this global catastrophe, because Although the ATT may have
alleviated some of these concerns, it ultimately provides States with a great deal of
interpretive leeway, and its implementation is still questionable.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 163-172

13. ARBITRATION: THE BEST-SUITED
PEACEFUL RESOLUTION MEACHANISM

FOR TRANSBOUNDARY DISPUTES

Seeni Mohamed Nafees
Assistant Professor, Faculty of Shariah & Law, Sultan Sharif Ali Islamic University,

Negara Brunei Darussalam
Email: [email protected]

Ahmad Masum
Senior Assistant Professor, Faculty of Shariah & Law, Sultan Sharif Ali Islamic University,

Negara Brunei Durussalam
Email: [email protected]

Muhamad Hassan Ahmad
Assistant Professor, Ahmad Ibrahim Kulliyyah of Laws,

International Islamic University Malaysia
Email: [email protected]

ABSTRACT
Although several international organisations work for world peace, recently not
like ever before, several disputes between states are emerging. Russian-Ukraine
war, the tension between China and Taiwan, the South China sea issues, the
tension between South Korea and North Korea, and the Conflict of Armenia-
Azerbaijan are a few to mention. Following the failure of the League of Nations,
the UN was established for restoring world peace and security. Despite there are
pros and cons with regard to the operation of the UN, it strives to play a material
role in convincing states to adopt peaceful means for finding solutions to the
issues they face. Negotiation, inquiry, fact-finding, conciliation, arbitration, and
mediation are considered better peaceful means of conflict resolution for
international disputes. According to the UN Charter, war is only allowed for just
cause and as the last resort. Therefore, inter-state arbitration or arbitration among
disputing states could be the ideal option for resolving international disputes.
Hence, this study strives to investigate it. For this purpose, a qualitative method of
research is adopted. If arbitration is promoted as the best means of dispute
resolution among states, most of the problems would be settled peacefully with
less damage to world peace and resources. Hence, this paper chooses selected
international disputes, and strives to propose arbitration as a dispute resolution
mechanism that can make the impossible possible.

Keywords: Arbitration, international disputes, peaceful means, Resolution.

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

I. INTRODUCTION
There are several conventions and bilateral treaties globally that have been ratified by
majority countries. However, they play a little role in resolving transboundary disputes. Not
like ever before, international disputes are rampant. A global organisation such as the UN
strives to find peaceful and prolonged solutions to such disputes. Consequently, world peace
is now becoming an attainable task. In a scientific era, still countries are embarking on war
for resolving disputes which eventually led to unnecessary casualties and damages. Although
war is taking place somewhere, the rest of the world is bound to face its consequences.
Because of this, world peace is imperative for the smooth running of this world.

As we discussed above, there are several ways and means to resolve international
conflicts between and among states such as bilateral negotiations, good offices, conciliation,
mediation, fact-finding, arbitration, etc.659 However, arbitration can be promoted as the best
option for resolving disputes between and among states. The Alabama Claims case of 1872660
gives the world a spark of new hope regarding adoption of arbitration for the resolution of
international disputes.

In fact, states are reluctant to submit their disputes to litigation by international courts
because they can provide limited solutions. In contrast, arbitration presents an effective and
flexible alternative for the resolution of transboundary disputes. International disputes may
involve territory issues like Taiwan- China or water resources like the Nile River in Africa,
situations involving formal declarations of war or military acts like Palestine-Israel, and
strong verbal expressions displaying hostility like China- America or any political-military
hostile actions.661

States are often interested to resolve issues by way of a bilateral negotiation which has
a long history. The 1911 Madrid Declaration is a good example. This provided for the
formation of permanent joint commissions for the resolution of water disputes and a similar
provision was incorporated in the 1923 Geneva Convention. The tendency of states to resort
to bilateral non-binding mechanisms such as joint commissions may in part be a result of the
“vague standards” of international water law, which may cause states to proceed with
negotiations until an agreement is reached, rather than enter litigation with unpredictable
results. Bilateral negotiation enables the parties to control the process and the outcome; offers
a generally simpler and less costly procedure and encourages a compromise. Additionally, the
parties, who are best placed to foster a workable solution, are themselves responsible for
resolving the dispute and any settlement devised by them is thus more likely to be agreed
upon than an enforced settlement.662 The bilateral negotiation could be a preliminary step
towards adoption of the most appropriate mechanism such as arbitration for finding a
permanent solution.

659 Abdul G.H.K.M Sein, Public International Law: A Practical Approach (Selangor: Person Malaysia Sdn.Bhd
2009), 405-409.
660 This case is related to Great Britain's responsibilities as a neutral during the American Civil War. The
Alabama was built in Birkenhead, England under the misleading name Enrica. The Enrica sailed from Liverpool
for the Azores where it received coal, guns, ammunition, uniforms and supplies. It changed its name to Alabama
and sailed to attack US vessels. She burned or sank sixty-four US vessels before she was herself sunk in June
1864 near Cherbourg. The United States complained that Great Britain had violated its neutrality by allowing
ships to be built and sold to the Confederate States. The British and American Governments established a five-
member Arbitral Tribunal, including two national members. The Arbitral Tribunal followed a strictly judicial
procedure and issued a reasoned award. The arbitration resulted in an award against Great Britain of
US$15,500,000 in gold. The award was duly honoured and the Alabama Claims dispute was successfully
resolved by the arbitration.
661 Tamar Meshel, The Evolution of Interstate Arbitration and The Peaceful Resolution of Transboundary

Freshwater Disputes, 2016 J. Disp. Resol. (2016).
Available at: https://scholarship.law.missouri.edu/jdr/vol2016/iss2/.
662 Ibid.

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II. DISPUTES THAT MAY PREJUDICE WORLD PEACE
Although there are many international organisations that strive for maintaining peace globally
the incidents that may prejudice world peace are about to occur frequently. If due peaceful
means of settlements are not put in place, they may become unavoidable military wars
between states that will have global impacts. Hence, it is imperative to encourage disputing
parties to adopt arbitration as a means of dispute resolution. In this sense, some international
disputes are discussed.

2.1 China -Taiwan Dispute
Taiwan is officially known as the Republic of China (ROC). It is an island detached from
China by the Taiwan Strait. It has been governed independently of mainland China that is
officially known as the People’s Republic of China (PRC) since 1949. The PRC looks at the
island as an apostate province and pledges to sooner or later merge it with the mainland.
From the perspective of Taiwan, it has its own democratically elected government and is
home to twenty-three million people. Meanwhile, political leaders have divergent views on
the island’s status and relations with the mainland. Cross-strait tensions have worsened since
the election of the Taiwanese new president in 2016. The newly elected president has refused
to accept a formula that her predecessor endorsed to allow for increased cross-strait ties. In
the meantime, China has taken increasingly aggressive actions, including flying fighter jets
near the island. In this sense, China and Taiwan sustain a fragile relationship that is tested
from time to time.663

The core issue of this prolonged conflict is China and Taiwan harshly disagree on the
island's status. The PRC contends that there is only “One China”, and that Taiwan is an
inalienable part of it. It reiterates that Taiwan is bound by an understanding reached in 1992
between representatives of the Chinese Communist Party (CCP) and the Kuomintang (KMT)
political party that was in power in Taiwan. The 1992 Consensus, states that there is only
“One China” but with differing interpretations, allowing both Beijing and Taipei to agree that
Taiwan belongs to China, while the two still disagree on which is China’s legitimate
governing body. The tacit agreement underlying the 1992 Consensus is that Taiwan will not
strive for independence. The KMT accepts the consensus as a starting point for future
negotiations with the CCP. However, the island’s president, Tsai Ing­wen, leader of the
Democratic Progressive Party (DPP), has refused to reference the 1992 Consensus when
speaking about cross-strait relations. Tsai has stressed that she seeks to build trust with the
mainland through various channels of communication to ensure stability in cross-strait
relations. Meanwhile, other leading voices of the governing DPP have denied the very
existence of the consensus, leaving open the option of a future independent Taiwan.664

It is notable that before US president Jimmy Carter terminates the diplomatic relations
with the ROC in 1979, the United States established formal diplomatic relations with China
by concluding a joint communiqué stating that “the United States of America acknowledges
the Chinese position that there is, but one China and Taiwan is part of China”. In addition, the
ROC lost its seat representing China at the United Nations in 1971 to Beijing due to
Washington’s position began to shift under the Nixon administration. 665

2.2 North Korea and South Korea Conflict
The Korean peninsula issue began after the end of World War II when the Soviet Union was
involved in the northern part of the peninsula. At the same time, the United States believed
the Soviet Union’s occupation was an attempt to expand Communism. Consequently, it

663 Steve Tsang, China -Taiwan: A Proposal for Peace, Security Dialog 31 no.3 (2016):331-332.
664 Ibid.
665 Ibid.

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occupied the southern part of the peninsula to prevent the development of Communism. The
occupation of both, the Soviet Union, and the United States, endured for only three years and
they left the peninsula in 1948. However, it was already separated into two parts, not only
territorially but ideologically leaving the two Koreas in an endless conflict. The involvement
of the United States and the Soviet Union made the conflict very complex as it is not a
conflict between two parties anymore and it became a conflict of six parties. Nevertheless,
the significance of the Korean peninsula dispute arises from the number of actors. It involves
multiple interests which don’t limit to economic or political interests but also ideological
interests too. 666

The negotiations of this conflict can be state-state negotiations like North Korea and
South Korea, which are the sides of the conflict, mediated by a state or even a group of states
like the United States and China and Japan or the other rational option which is states-IGOs
negotiations which could include the United Nations which can take advantages of some of
its agencies and organisations like the United Nations Institute for Disarmament Research
(UNIDIR).667

2.3 Armenia- Azerbaijan Dispute
This is one of the prolonged unsettled disputes. It is pertaining to the Nagorno‐Karabakh
territorial dispute (NK) which has been lasting since 1988. It’s important geographic location
worsens the situation by relating many parties to the disputes. The core issue is ethnic
tension. The cause of conflict can be traced back to 1921. The NK was a part of Armenia
before Stalin created ties with Azerbaijan. It has been a part of Azerbaijan since 1923 but is
inhabited by mainly ethnic Armenians who are different from Azeris in terms of language,
culture, and religion. The real territorial dispute started in 1988 when Armenian nationalists
insisted to make the NK an autonomous region and merging it with Armenia. Since then, the
war between the two countries is going on leaving innumerable losses of lives on both sides
and internal displacement of people.668

III. CONFLICT MANAGEMENT
We have discussed here three case studies, namely, China -Taiwan Dispute, the North and
South Korean Conflict, and Armenia- Azerbaijan Dispute. However, there are several such
unsettled conflicts globally requiring viable solutions. Hence, this part is going to examine
what peaceful measures were taken with regard to three selected disputes so far for the
resolution process and arbitration is proposed as a viable means of peaceful settlements.

The main reason for these conflicts for remaining unresolved is the disputing parties
that involved are not only the direct conflicting parties but also the external stakeholders. One
may observe in three cases a common characteristic that is external factors that impede
accomplishing viable solutions to these international issues.

As the issue of war and peace between China and Taiwan in the next few years is a
matter of concern to the USA and to the Asia Pacific region, several peace efforts were
considered in order to avoid the conflict to become a war. It is useful to remind China’s
position over Taiwan before 1943 was Taiwan must be given independence at the end of
World War II after the defeat of Japan which applied colonial rule there from 1895 to 1945.
This position became totally changed in the early 1950s and since it has been viewed along
with Hongkong and Macao.669

666 Ahmed M. Albuloshi, North and South Korea, (Oman: Sultan Qaboos University, n.p), 3.
667 Ibid.
668 Aigerim T. Akhmetova, Armenia-Azerbaijan Wars: Looking for Nagorno: Karabakh Conflict Resolution,
paper presented at the Air University Advanced Research Program (March 31, 2021),1-3.
669 Tsang, China and Taiwan, p.327-328.

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With regard to the China-Taiwan issue, the USA also involves. Hence, these three
parties must come to the negotiating table in order to peacefully settle the issues. Similarly, in
the North and South Korean conflict, China and the USA are involved. In Addition, in the
Armenia-Azerbaijan dispute, many parties such as Russia, Turkey, the United States, the
European Union, Iran, the Islamic World, and China are involved.670

With regard to the North and South Korean issues, the Six-Party Conference was
proposed by Russia in 1994 whereby six states and two organisations were supposed to
involve. They are North Korea, South Korea, China, the USA, and Japan. Two organisations
were the United Nations and the International Atomic Energy Agency (IAEA). The said
Russian proposal encompassed several points including the prohibition of nuclear production
in the Korean peninsula, pledges that the two Koreas will not interfere in each other’s internal
affairs, conducting programs to promote both Korea’s military sectors, replacing the
armistice of 1951 with a new more effective agreement and finally improving the strategic
relations of certain members in the conference. However, this proposal was not accepted by a
few members, especially the USA. Later in 1998, the Sunshine policy was suggested by
South Korea in order to find a viable alternative solution. The main idea behind was to
resolve the ancient conflict and improve a bilateral talk between the two states. Consequently,
this attracted the attention of the international community and North Korea. This paved the
way for both parties to meet in 2000 which was considered a milestone in history.
Unfortunately, this effort failed due to USA’s military base in South Korea and South
Korea’s National Security Law.671

Regarding the Armenia-Azerbaijan dispute, many efforts were put in place for finding
an everlasting solution. Notably, the Mins Group (MG) was established by the Conference on
Security and Cooperation to facilitate a peaceful settlement process. The purpose of the MG’s
existence is to maintain a measure of stability in the area by upholding control and oversight
of Armenian and Azerbaijan interests. A noteworthy development was Russia and United
Nations reached a resolution with both sides that NK has to be recognised as part of
Azerbaijan, subsequently resulting in a temporary ceasefire in 1993. Furthermore, the MG
proposed many peaceful means in 1997 such as the “package deal”, “step-by-step deal”
Land‐Swap” proposal, “basic principles” and the “Madrid Principles”. They developed the
Prague Process and Madrid Principles addressing the option and “methodologies,”
nevertheless, all suggestions failed to accomplish a resolution to this conflict. Some of these
initiatives were successful in establishing an administrative border within Azerbaijan, the
withdrawal of Armenians and NK Military to the 1988 border, returning Azeris to their
homes in NK, and establishing a common state between Azerbaijan and NK. Most of the
discussions came to a cessation when the status of NK was left undetermined or when the
proposed NK status was regarded as an imminent threat to Azerbaijan’s territorial
integrity.672

IV. PROMOTION OF INTER-STATE ARBITRATION AS THE BEST OPTION
As many negotiations and third-party mediations have not served their purposes, it is
imperative to encourage parties to dispute the adoption of interstate arbitration. For this
purpose, the related stakeholders must also involve in bringing direct disputing parties to an
arbitration process. The inspiring fact is that in human history, inter-state arbitration has
played a significant role in finding peaceful solutions for transboundary disputes.

As described by the Chief Justice of India N V Ramana “Arbitration is the best-suited
dispute resolution mechanism for the globalised world and a time-bound process structured to

670 Akhmetova, Armenia‐Azerbaijan Wars.2.
671 Albuloshi, North and South Korea.
672 Akhmetova, Armenia‐Azerbaijan Wars, 4.

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deliver immediate relief. Arbitration in the era of globalisation" a prerequisite for achieving
globalisation in true sense is ensuring universal respect for the rule of law. Trust in the
globalised world can only be built by creating institutions with a strong emphasis on the rule
of law. Rule of law and arbitration are not in conflict with one another”.673

Moreover, international arbitration has demonstrated a useful method of settling limited
territorial disputes between nations. One of the most attractive aspects of arbitration is that
the proceedings are generally performed in ad hoc courts of arbitration particularly devised to
deal with a certain dispute. The parties can take part in identifying the issue to be adjudicated,
and they have the power to select the arbitrators, the forum, and the rules of procedure that
will be applied to resolve the dispute. Arbitration also offers the parties the option of having
hearings in private. Hence, arbitration gives an attractive forum for nations that have opted to
settle their disagreements through peaceful ways because it is much more adaptable than a
permanent court and permits the parties to preserve more control over the proceedings.674

Interstate arbitration is a procedure for the settlement of disputes between states by an
award that can bind parties concerned on the ground of law and consent given by the parties
to the disputes. It is an arrangement by states concerned for resolving a dispute or several
disputes that exist between them. The modern inter-state arbitration started in 1794 with the
General Agreement of Friendship, Commerce, and Navigation between the USA and the UK.
This was later known as the Jay Treaty. The issue resolved by arbitration under the Jay
Treaty was the boundary line between the remaining British possession and the USA. In fact,
this paved the way for the Hague Convention for the Pacific Settlement of Disputes in 1899
and consequently, the Permanent Court of Arbitration was established.675

Similarly, Article 33 of the UN Charter reiterates disputing parties to seek peaceful
means to settle their issues: “The parties to any disputes, the continuance of which is likely to
endanger the maintenance of international peace and security shall, first of all, seek a solution
by negotiation, enquiry, mediation, conciliation, arbitration, judicial decision, resort to
regional agencies or arrangements or other peaceful means of their own choice. The Security
Council shall, when it deems necessary, call upon the parties to settle their dispute by such
means”.

Indeed, the arbitrations under the Jay Treaty of November 19, 1794, are commonly
treated as the starting point of present-day international adjudication. Judge Read treated the
Jay treaty arbitration as the dawn of contemporary international arbitration. It takes one bold
act to transform the unthinkable into the thinkable…676 Therefore, international organisations
and countries that have a close relationship with countries that encounter territorial or
diplomatic issues must encourage to choose arbitration as a means of dispute resolution.
Therefore, constructing effective means to peacefully resolve territorial disputes is a matter of
profound importance.677

V. EXAMINATION OF PAST SUCCESSFUL INTERNATIONAL ARBITRATIONS
There are many instances for successful international arbitrations in the history. Two such
stories of recent past can be discussed as examples. They are the Rann of Kutch and Taba

673 Business Today, Google, last modified March 19, 2022. https://www.businesstoday.in/latest/in-
focus/story/arbitration-is-best-suited-dispute-resolution-mechanism-for-globalised-world-cji-326562-2022-03-
19.
674 Carla, S. Copeland, the Use of Arbitration to Territorial Disputes, Fordham Law Review Vol.67 no.6
(1999):3073.
675 Muhammad N.I. Jan, Principles of Public International Law: A Modern Approach (Kuala Lumpur: IIUM
Press, 2008) 378.
676 Georg Schwarzenberger, Present-day Relevance of the Jay Treaty Arbitrations, Heinonlie, Google

https://heinonline.org/HOL/LandingPage?handle=hein.journals/tndl53&div=34&id=&page.
677 Copeland, the Use of Arbitration to, 3074.

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area disputes. The Rann of Kutch dispute was related to India and Pakistan. The subject of
conflict was to decide a sector of the state line between the territory that, in British times, was
known as Sind and the state of Kutch and other indigenous Indian states. The Runn of Kuch
covers about 200 miles across the southern portion of the Indo-West Pakistan border. This
territorial dispute lasted for centuries. However, it became serious after Pakistan and Indian
became independent States in 1947. Both States claimed it and consequently, they exchanged
hostilities. Immediate after fighting began between the two countries, with the mediation of
British, they agreed for a ceasefire in 1965 that enable them to submit their dispute for
arbitration. Both nominated one non-national arbitrator and the Secretary General of the UN
was the chairman of the arbitration tribunal. Delegates from both countries inspected
documents and maps by visiting the other country. In accordance with Ceasefire agreement,
parties were determined to implement the award of the tribunal as soon as possible. The
tribunal, after inspection of evidence provided by both parties concluded that the Sind
belongs to Pakistan and the Rann belongs to India. This historic award was respected by both
parties and accordingly conflict was resolved by arbitration. The Rann- Kutch arbitration was
tremendously successful in settling a territorial dispute between two countries with the
history of battle. The main reason of this success is the parties to the dispute cooperated each
other and with the arbitration tribunal. No party questioned about the authority of the tribunal
and both parties strived together for the implementation of the decision of the tribunal. 678 In
other words, both parties worked towards a binding solution in good faith and open heart.
This could really be an inspiration for countries that are involved in conflicts.

Another notable example is the Taba Area Arbitration. This is a dispute over the Taba
area between Egypt and Israel. This is a millstone story. The subject matter of the arbitral
tribunal was limited to determining the location of fourteen boundary pillars of "the
recognised international boundary between Egypt and the former mandated territory of
Palestine," consequently key status of the Taba area, a strip of land in the Sinai on the shore
of the Gulf of Aqaba. In fact, the emergence of the conflict can be traced back to 1906. This
took place when Turkish occupied coastal area of Taba and was compelled to withdraw by
British. Following a negotiation between Egypt and Turkish representatives an agreement
reached regarding the territorial issue and the border between Egypt and the Ottoman Empire
was determined as running across Taba. However, in 1915, a British military survey brought
a map that disclosed the border as running along a line nearly three-quarters of a mile to the
north-east of the 1906 line. The 1915 line became the boundary with Egypt under the British
Palestine Mandate and continued to be as such when Israel declared itself an independent
state in May 1948. In the June 1967 war between Israel and Egypt, Israel seized the Sinai
Peninsula from Egypt, bringing the Taba area under Israeli control. In the meantime, in the
March 1979 a Treaty of Peace between Israel and Egypt, Israel arranged to withdraw its
troops from the Sinai and to recognise the full exercise of Egyptian sovereignty up to the
internationally recognised border between Egypt and mandated Palestine. By virtue of the
Treaty of Peace, a joint commission was designed to delineate the boundary. When survey
teams reached the Taba area, the parties were only able to agree on the settlement of three
boundary pillars. In spite of negotiations, the parties could not agree on the placement of the
remaining pillars. Consequently, the parties decided to submit the dispute to arbitration, in
accordance with the 1979 Treaty.679

In accomplishing its decision concerning the final and most disputed pillar location, the
Tribunal depended on chiefly on photographs presented by Egypt demonstrating the
existence of a marker identified as the "Parker pillar," which was established by

678 Ibid, 3079-3080.
679 Ibid,3082-3083.

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commissioners executing the 1906 Agreement. The Tribunal overruled Israel's argument that
the Parker pillar was not intervisible with the agreed location of the neighboring pillar to the
north, and that this lack of intervisibility contradicted the 1906 Agreement. The Tribunal
depended on evidence that Egypt and Turkey may have overlooked the intervisibility
requirement of the 1906 agreement when erecting the pillars in the area of the Parker pillar.
The Tribunal also disallowed Israel's argument that the pillar had been mistakenly erected.
The Tribunal concluded that the Parker pillar existed at the location advanced by Egypt, and
that the Parties had recognised this pillar as a boundary throughout the critical period. Thus,
Israel could not at this point contest its location based on an alleged error. The identical
reason of this issue to be successfully resolved is as the Tribunal commended in its Award,
the parties for the "spirit of cooperation and courtesy which infused the proceedings in
general and which thereby led the hearing to a constructive understanding. On March 15,
1989, subsequent negotiations and the conclusion of an agreement, Israel transferred to Egypt
sovereignty over the Taba area fully, including the resort facilities situated there.680

Eventually, the Rann of Kutch arbitration and the Taba area arbitration successfully
resolved a territorial dispute between nations that had a history of violent conflict. The two
proceedings prove the value of international arbitration as a procedure to delineate boundaries
between states.

In the light of above cases, the issues chosen by this study can be approached to find a
solution by way of arbitration. In this sense, the material issue in China-Taiwan conflict is
“One China” concept that is expected to be admitted by Taiwan. On the other hand, Taiwan
wants to be an independent state. In order to bring them for arbitration process some
fundamental agreements must be reached between two territories. The basis for negotiating
for unification may be model of Chinese Union or United States of China. This could be
acceptable to China as the President Jiang Zemin himself openly affirmed at the 15th National
Congress of the Communist Party in September 1997 that ‘Any issues could be discussed’
with Taiwan if it was for upholding “One China”. This could be formed by two Chines states
advocating the principle that there is “One China”. However, both can have representations
overseas and maintain relations with the rest of the world without disrupting this principle.
The Chinese Union will uphold equality even though one state may play a dominant role.
Later, during the process, they may decide in future whether it is going to be unitary or
federal state or some other type of state that is yet to be defined.681

In the arbitration process the following points, as proposed by Steve Tsang, can be
considered by both parties to reach a long-term settlement.682

(1) The Governments and people of both sides can, considering the common ancestry
and cultural heritage, support the unity of China as one country under the name
Chinese Union. Both sides must be determined to be committed and treated each
other as equal partners.

(2) Taiwan will admit the China’s leadership in the Chinese Union in handling
foreign policy demanding Taiwan as a matter of principle and never to vote
against it in international organisations. In turn, Taiwan will enjoy the right to
sustain diplomatic, consular, and other relations with other countries and regional
and international organisations under the name of Chinese Taiwan.

(3) The Chinese Government admit the rights of Taiwan over its diplomatic,
consular, and other relations with other countries.

(4) The consular protection will be offered by the respective governments.

680 Ibid, 3083-3084.
681 Tsang, China and Taiwan, 332.
682 Ibid.

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(5) Both parties are barred from using force against each other. Defence forces of
both sides are required to support each other.

(6) Both parties will maintain their separate taxation regimes, and neither will be
expected to make financial contributions to the other.

(7) Both parties must agree not to do any changes to the existing political, economic,
and social systems within the other territorial realm.

(8) Both parties are prevented from interfering with domestic affairs of the other.
(9) Future issues between two territories must be settled based on referendum that

will be held on both sides.
Pertaining to North and South Korean issues, there are four main players, i.e., the US,
Russia, China, and Japan. These countries may play a significant role in bringing both Koreas
for arbitrating their issues. In order to serve this purpose, some basic measures must be put in
place. Taking into account the long period of conflict and its complication, arrangements may
be made for family members from both sides to meet and share happiness. Since the end of
war in 1951, many family members did not find a chance to meet. As they share same
language and culture, rebuilding their relationship would contribute to mitigate the magnitude
of the conflict. This would pave the way to opening boarders and eventually both states
would be compelled to move towards peaceful means of conflict resolution. If both parties
approach these issues in good faith, it will not exaggerate to say that the unification is also
possible.683
In the case of the NK issue, there are many stakeholders such as the USA, Russia,
Turkey, Iran, the EU and the Islamic world. The USA should continue diplomatic support
emphasising Armenia and Azerbaijan to come to the negotiation table that encourages them
to go for arbitrate their issues independently. As the NK is located between the two countries,
people of that area may decide their fate as it could be a part of either country or an
autonomous and self‐governed NK. The USA must consider steering all three locations,
Armenia, Azerbaijan, and NK towards some measure of fossil fuel independence from
Russia. This approach could be handled by the Biden administration’s humanitarian and
climate initiatives, and facilitate discussions of building new industries, markets, and
corridors of cooperation. The US may aid Azerbaijan to develop other opportunities to
sustain itself apart from its oil reserves. Oil is not going to be in high demand forever,
exploring opportunities for low carbon energy resources and reducing the risk of exposure to
climate change will prove to be advantageous for mitigating several global issues. Exploring
other opportunities for import, export, and tourism focusing on creating a safe environment
for global market influence would further assist the Caucasus area. The economic benefits are
not the only potential outcomes but also a climate of productivity and new opportunities for
the people of Armenia, Azerbaijan, and NK. These initiatives may prompt people to isolate
themselves from violence.684
Azerbaijan is a Muslim country that has a close relationship to Turkish culture. In this
sense, Turkey can be brought into the stakeholder pool. Turkey has supplied military and
economic assistance to Azerbaijan throughout the years. The Baku‐Tbilisi‐Ceyhan (BTC) oil
pipeline project between the two nations, which opened in 2005, further brought their
relationships closer with economic ties. With Turkish influence in the area and its close ties
to the US, Turkey can be considered one of the key parties to resolving this prolonged
conflict.685
Relatively due to the region’s history, Russia remains engaged in the NK conflict
directly and indirectly. Russia provides weapons to both sides of this conflict, and some argue

683 Albuloshi, North and South Korea.
684 Ibid.
685 Ibid

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this is done to keep both states dependent on Moscow. Furthermore, Russia has two military
bases in Armenia and holds 90 percent of Armenia’s energy generation and distribution
systems. This situation was the result of Armenia clearing all its debts with Russia.
Consequently, Russia diplomatically represents Armenia in the international community,
impeding any dispute resolution that may impact Russia’s own interests. This makes a
conflict of interest when collaborating with Western partners and suggests Russia is truly the
main stakeholder.686

There are additional stakeholders in the NK issue such as the EU, Iran, the Islamic
World, and China. Their influence in the region and possible capabilities cannot be
overlooked. Armenia and Azerbaijan’s location provides a bridge between the East and West
and links these states physically and ideologically. The EU’s involvement in the NK case has
been primarily economic in nature supplying technical assistance to both Armenia and
Azerbaijan. Azerbaijan’s oil and gas reserves concerned the EU and they have taken part in
energy projects. Furthermore, EU members serve on the MG and support both countries'
territorial integrity. Similarly, the presence of large ethnic Azeris in Iran, and concerns over
increasing US influence in the region have kept Iran involved in the conflict discussions. The
US may assume that Iran will continue to influence future peace negotiations considering its
significant power in the region. Saudi Arabia, Kuwait, and other Persian Gulf countries have
supported Azeri refugees and continue to engage in rebuilding Azerbaijan’s economy through
energy and trade deals. Although Islamic countries have not directly participated in the
negotiations, their influence, and financial capabilities to support humanitarian and weapons
purchases must not be ignored. More importantly, with China’s increasing economic, energy,
and trade participation, it is significant to consider its potential role in these negotiations. In
fact, China has not been directly involved in the discussions, but due to its regional power, it
can become a direct player.687

VI. CONCLUSION
From foregoing discussion, it is clear that there are several international disputes between
states that may prejudice world peace at any time. Such three disputes were selected for the
discussion and efforts were put in place to identify core issues for disputes. After careful
investigation of previous peaceful measures for mitigating the magnitude of the conflicts, the
arbitration is proposed for resolving the above disputes conclusively. In this respect,
conflicting parties must be encouraged by the international bodies, regional agencies and the
countries that have economic interests or close diplomatic relations to undertake arbitration
process for resolving their disputes. Arbitration is flexible and applicable law is chosen by the
parties to the disputes. Arbitrators are also chosen by the parties independently. The selection
of procedures and venue is dependent on the parties. More importantly, the arbitral award is
binding on the parties, and it is final. Hence, the only requirement needed is the willingness
of the parties to the disputes for choosing arbitration as a resolution mechanism.

686 Ibid.
687 Ibid.

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22 October 2022
E-ISBN 978-967-491-267-3

p. 173-184

14. PEACEFUL RESOLUTION OF THE
INTERNATIONAL DISPUTE IS THE MYTH

AND MIRAGE: CRITICAL STUDY

Neelam Seam
Department of Law,
Gitarattan International Business School, India
Email: [email protected]

ABSTRACT
After the II World War, the whole world recognised and accepted the peaceful
resolution of disputes. Though, the need for peaceful settlement of disputes was
recognised in the first Hague Peace Conference in 1899, which produced a
Convention for the Pacific Settlement of International Disputes. The second
Hague Peace Conference, in 1907, yielded another Convention for the Pacific
Settlement of International Disputes. After that, the International organisation
UNO followed by United Nation formally adopted the principles of peaceful
settlement of disputes and countries became the signatories of these conventions.
Nevertheless, despite all these efforts to prevent aggression and encourage the
countries to settle their disputes through peaceful means, the first and II World
war proved the failure of these principles and vanished the efforts of all. The
recent example of Russia's invasion of Ukraine is a noticeable infringement of the
UN Charter. The event in Afghanistan, Ethiopia, Israel, and Iraq is an examples of
failures of the various tools of peaceful settlement of disputes. These incidents put
up the question of the relevance of the same. In this paper, I will try to analyse the
reason for the failure of the means of peaceful settlement of disputes. I will
conduct empirical research and collect the data through the questionnaire. Also, it
is the role of major blocks in the peaceful settlement of disputes.

Keywords: Convention Produced, Aggression, Invasion, Peaceful Settlement.

I. INTRODUCTION
Aristotle said that “man is a social and political animal”. The political nature of man is the
root cause of the disputes among the people. In contrast, only cooperation is the foundation of
the growth and development of the human. It means conflict and cooperation are the two
sides of one coin. Both are essential for human survival. Since the city-states developed, their
interest of the people varied, and to secure the interests of them, the government faced
conflicts. Now to come out from these conflicts, the governments have two options, one is
confrontation and another is the peaceful settlement of disputes.

The peaceful settlement of international disputes is a fundamental principle of
international law of a significant character. It is developed on Principles of International Law

Proceedings: International Conference on Peace and Conflict Resolution (ICPCR) 2022
International Peace and Security: The Achievement of the United Nations and the Way Forward

concerning Friendly Relations and Co-operation among States688 and formulated in the UN
Charter.689 The origin of the principles of peaceful settlement of international disputes can be
traced back to the very first Hague Peace Conference in 1899.690 Which created a Convention
for the Pacific Settlement of International Disputes? The second Hague Peace Conference in
1907 produced an added Convention for the Pacific Settlement of International Disputes. The
obligation of the states to settle their disputes by peaceful means achieved significance when
the use of force was prohibited and formulated in Article 2.4 of the Charter of United
Nations.691 There are legal dispute in which the parties to a disagreement base their claims
and arguments on grounds accepted by international law, according to Prof. Oppenheim; and
political dispute where all other disagreements are typically classified as political disputes or
conflicts of interest.

II. DIPLOMATIC METHODS OF DISPUTE SETTLEMENT

2.1 Negotiation
Negotiation is a technique used to resolve conflicts. It is a method for coming to a
compromise or agreement without conflict or controversy.692 In many ways, negotiation is a
flexible method for amicably resolving conflicts. Any dispute, whether it is political, legal, or
technological, can use it. It solely involves the State’s parties to the dispute, unlike the other
methods indicated in Article 33 of the Charter, thus those States can oversee all stages of the
procedure from its beginning to its conclusion and conduct it however they see fit.
Effectiveness in negotiations is another trait emphasised by the Manila Declaration.693 In this
context, suffice it to note that, in the real world of international life, negotiation, as one of the
methods for peaceful conflict resolution, is most frequently used by States to resolve difficult
disagreements, and while it is not always effective, it usually does so. A conversation
between two or more parties with the goal of reaching a win-win solution is called
negotiation. Business, sales, nonprofits, governmental agencies, legal proceedings, between
nations, and private issues like marriage, divorce, parenting, etc. all involve some form of
negotiation.

2.2 Enquiry
The difficulty of determining the facts that gave birth to the disagreements between the
disputants is one of the typical barriers to successful negotiation-based dispute resolution.
Most international conflicts arise when the parties cannot or will not agree on certain facts.
Herein lays the value of the inquiry process as a tool for amicable dispute resolution.
Numerous bilateral agreements have been reached that call for fact-finding between parties to
a dispute with the goal of assisting the parties in coming to a resolution. The skill and
background of the mediator are very important. Training programs, qualifications, and

688 United Nations General Assembly. "A/RES/25/2625 - Declaration on Principles of International Law
Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United
Nations - UN Documents: Gathering a Body of Global Agreements." UN Documents: Gathering a Body of
Global Agreements. Accessed August 1, 2022. https://www.un-documents.net/a25r2625.htm.
689 Article 2, 3 UN Charter 1945.
690 The Avalon Project : The Hague Peace Conference 1899 - General Report of the United States Commission."
Avalon Project - Documents in Law, History and Diplomacy. Accessed August 1, 2022.
https://avalon.law.yale.edu/19th_century/hag99-04.asp.
691 Article 2.3; Article 33 UN Charter 1945
692 Oxford Bibliographies - Your Best Research Starts Here - Obo. Accessed August 12, 2022.
https://www.oxfordbibliographies.com/view/document/obo-9780199743292/obo-9780199743292-0006.xml,
693 Manila Declaration on the Peaceful Settlement of International Disputes, New York, 15 November 1982

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