The term 'Middle East' is not precise geographically, but for convenience it includes the Levant, Egypt, the Gulf States, Iran and Turkey. We adopt the geo-cultural approach of the Lebanese historian and sociologist George Qorm, who identifies three empires founded by the Arabs, Iranians and Turks. It also identifies other ethno-cultural groups that have established kingdoms or small political entities, such as the Armenians, Chaldeans and Greeks. These empire-building groups have extensions in the Caucasus, Central Asia and North Africa [Qorm, 2010, p.26]. Since the First World War, the Middle East has been characterised as a region of great power rivalry. This is evidenced by conflicts between groups such as Palestinians and Jews during the British Mandate, and between Arab states and Israel (1948, 1956, 1967, 1973) or between Iraq and Iran (1980-1988), and finally between Israel and Hezbollah (2006, 2023-2024) and Hamas (2008/2009, 2012, 2014, 2018, 2021 and 2023-2024).
At the regional level, experts say that the absence of effective mechanisms for resolving disputes is a significant challenge [Carnegie Endowment, 2019]. The lack of effective dispute resolution mechanisms has contributed to the escalation of disputes in the Middle East. However, there have been recent developments, including the establishment of the International Court of Justice, the International Criminal Court, the International Tribunal for the Law of the Sea and the International Centre for Settlement of Investment Disputes [Romano, 2016]. Human rights courts have been set up in Europe, the Americas and Africa. In the Middle East and the Arab world, human rights have become a hot topic after the Arab Spring. In September 2014, Bahrain proposed an Arab Human Rights Court, but there are concerns about this. The Arab League Human Rights Charter (revised 2004) relies on a committee of experts to review reports rather than a judicial mechanism. The Arab League has also established two further courts: the Arab Court of Justice and the Arab Investment Court. The Arab Court of Justice has yet to be set up. The Arab Investment Court, established in 1981 and operational since 2004, was used in a 2004 case between a Saudi company and Tunisia. It has since been used against other Arab countries.
The lack of effective dispute resolution mechanisms is not the only factor contributing to the rising number of disputes in the Middle East. Even when these mechanisms exist, they only work if they are properly implemented.
The Gulf states have been shown to play a big role in resolving disputes, especially as mediators. Notable instances of Qatari mediation include the 2008 Lebanese crisis, the 2023 US–Afghan Taliban agreement, the 2023-2024 Israel–Hamas prisoner release and Gaza ceasefire, and the 2017-2021 Kuwaiti mediation between Qatar and Gulf states such as Saudi Arabia and the UAE. Omani and Emirati mediation played key roles in 2015 and 2024. Saudi Arabia also mediated between Sudanese warring parties in 2007 and between Palestinian factions in 2023. The ICJ has resolved border disputes between Qatar and Bahrain (2001) and Qatar and the UAE (2021). The Gulf States are resolving conflicts and mediating, showing their growing role in regional and international relations. The OIC's rise following the 1973 war is also linked to Saudi Arabia's growing regional power. However, the Gulf States are not autonomous in international relations. They have been useful in US and Western policy, as seen in their mediation in conflicts between 'terrorist' groups, and in their decision to establish diplomatic relations with Israel. This raises questions about whether this development in dispute resolution is a means of 'normalisation' between Arab countries and Israel, or something more.
The events in Gaza since 7 October and Israel's war against the Palestinians have led to a re-evaluation of the regional order. This re-evaluation has occurred in two areas: the relationship between Arab States and Israel, perceived as detrimental to the Palestinian cause; and the application of international law at the regional level, superseded by the discourse of the State of Israel's 'right to self-defence'.
The capacity of regional institutions to resolve disputes must be considered within the context of geopolitical dynamics. The regional system is proposed as a unit of analysis to gain insight into this dynamic. In international relations theory, a 'regional system' is a system without regional government, with regional decision-making control exercised by certain states in the region. The Middle Eastern system is distinct from others in that it's subject to the logic of the state and ideological currents that challenge the legitimacy of states. Consequently, states in this region are contested and their legitimacy is fragile.
Dispute Settlement: The Relevance of Regional Institutions
This section will look at how the Islamic Conference, the Gulf Cooperation Council (GCC) and the Arab League influence dispute settlement. The Organisation of the Islamic Conference (OIC) has been important in increasing Saudi Arabia's regional influence. The organisation aims to encourage cooperation between Islamic countries in the economic, social and cultural spheres. The Organisation of the Islamic Conference (OIC) is committed to resolving disputes between member states peacefully. It played a role in resolving the conflict between Jordan and the Palestine Liberation Organisation (PLO) in 1970, resulting in the PLO being recognised as the sole legitimate representative of the Palestinian people. The OIC failed to resolve the 1980-88 war between Iran and Iraq.
The GCC was set up in 1981 to counter the Iranian revolution. Several member states have notable Shiite majorities, including Bahrain (70% of a population of just over one million [Louër, 2012, p.214] and Saudi Arabia (a Shiite majority in the eastern Al-Ahsa region). Significant demonstrations in cities such as Qatif and Dhahran in 1980 were a response to the Islamic Revolution in Iran [Louër, 2012, p. 214]. The Persian Gulf is also a focal point for international security, being one of the world's three most productive regions for oil and gas, and a conduit for 40% of global oil trade. In 2014, Saudi Arabia, the United Arab Emirates, Bahrain and Saudi Arabia collectively withdrew their ambassadors from Qatar and imposed a blockade on it. Egypt then imposed restrictive measures on Qatar. GCC member states had no legal basis for their position.
Qatar did not use the GCC Dispute Settlement Body, which has a limited role due to its reliance on the Ministerial Council. To gain support, Qatar enlisted the involvement of external actors, namely Turkey and the United States. The former's president declared on Twitter that the US was behind the sanctions on Qatar. Qatar then took the UAE to the International Court of Justice over the issue (CIJ, Qatar c. Emirats arabes unis, 2021). This and other factors led to the pacification of GCC countries, as shown by the Al-Ula summit in Saudi Arabia in January 2021. This summit led to a policy of détente among these countries.
The Arab League has been instrumental in the mediation of disputes, as evidenced by its involvement in the Syrian and Gaza conflicts. In the context of the Syrian conflict, the Arab League has been active in the region, particularly under pressure from Gulf States. The Arab League's founding charter, Article 5, outlines mechanisms for dispute settlement through mediation or arbitration. In instances where mediation is pursued, the Secretary-General of the League is authorised to engage with the disputing states. In the absence of a response, the matter may be referred to the League Council. In response to the Syrian crisis, the Arab League took prompt action. In an extraordinary meeting of foreign ministers on 2 November 2011, the League took several significant actions. These included the suspension of the Syrian government's participation in Arab League activities, the imposition of economic and political sanctions, a call for Arab states to withdraw their ambassadors from Damascus, and the maintenance of the Council in a state of permanent session. On 24 November 2011, the Arab League demanded that Syria sign a protocol within 24 hours to end violence against civilians. Syria signed and the mission began, but was terminated a year later due to inability to fulfil the terms of its mandate. In 2012, foreign ministers called for an Arab and UN peacekeeping force in Syria. This was a significant step in resolving the conflict, particularly the observer mission. However, despite these developments, the Arab League ultimately lacked the capacity to exert control over the course of events in Syria due to the interference of other major powers, including Turkey, Iran, Russia, and the United States.
The Arab League's stance on Gaza differs from its position on Syria. On 11 October 2024, it urged respect for civilians. Some Arab countries, notably Oman, have taken a different stance. The Omani Ministry of Foreign Affairs released a statement on 17th March 2024 saying that the Arab League's neutrality is not acceptable and that it is important to support the Palestinian people and other Muslim victims, no matter what their beliefs or ideologies (even if they are members of the Muslim Brotherhood). The Holy Qur'an advocates a fair and equitable approach, supporting the vulnerable and challenging the powerful.
The Syrian and Palestinian conflicts are intricately linked in the Arab League's broader stance, and understanding this is vital to unravelling the causes of these protracted crises. The Palestinian conflict is seen as a hindrance to Israel's integration due to the Sunni-Shia schism. In the Syrian conflict, the Sunni-Shia divide has become a key factor in regional power dynamics. Evidence of this is the schism between moderate Sunni states and Shia resistance states. This suggests that the rift may also extend to attitudes towards Israel and its role in the region. Israel is involved in this rivalry, as evidenced by the "battle between the wars". Since 2013, Israel has been bombing Syrian territory, referring to it as the "battle between wars" (in reference to the 2006 war and a future conflict with Hezbollah). Despite continued violations of Syrian sovereignty by Israel and other states, including Iran, as seen in the bombing of the Iranian embassy in Damascus, there is a general understanding of Israel's position. Moderate Arab states have not voiced strong opposition to these attacks, and Western officials consistently affirm Israel's right to self-defence.
The discussion shows that the question is not the necessity and pertinence of conflict resolution mechanisms, but their operationalisation, which depends on the political dynamics. In the context of the Syrian conflict, the Arab League demonstrated its willingness to establish an observer mission to protect civilians and engage in diplomatic negotiations with international institutions, such as the Security Council, to secure a resolution that would facilitate the deployment of international forces to Syria. The Arab League adopted a neutral stance in the Palestinian context, proposing that the resolution to the conflict and the humanitarian crisis in Gaza lies in the development of economic relations and cooperation with Israel, even if this entails certain costs to the Palestinians. The prevailing approach to conflict resolution in this context is one of normalisation.
Any discussion of the Arab League's ability to apply international law to resolve conflicts in the region must consider the evolving Gulf states' approach to conflict resolution and Israel's right to self-defence.
Regional Ordering in the Middle East: Israel’s right to self-defence
In the context of international law and its regional application, the study draws upon the literature based on Carl Schmitt's concept of Großraum. This concept is reflected in the US position, specifically in President Woodrow Wilson's Fourteen Points. The right to self-determination, as espoused by Wilson, was not universally applied; it was limited to Europe [Manela et al. 2010, p.193]. Furthermore, it was not applied in conflict with the Monroe Doctrine (1823), which regarded Latin America as the United States' sphere of influence. This was even adopted in Article 21 of the League of Nations, which stipulated the following: "Nothing in this Covenant shall be deemed to affect the validity of international engagements, such as treaties of arbitration or regional understandings like the Monroe Doctrine, for securing the maintenance of peace [Carto,1981, p.210]."
A parallel can be drawn with Britain, which, in adopting the 1928 Paris Agreement (Briand-Kellogg Agreement), acknowledged the right of self-defence as a legitimate basis for the utilisation of force in international relations. Moreover, the British Empire asserted its right to defend its interests throughout the Middle East region [Orford, 2021, p.161].
In the Israeli context, the maps presented by the Israeli Prime Minister in his speeches illustrate the Israeli vision of a regional order based on the normalisation of relations between Arab countries and Israel, as well as Israel's right to self-defence. The centrality of Israel's 'right of self-defence' is evident in the regional application of international law. Israel exercises this right throughout the Middle East, not merely in the context of the Israeli-Palestinian conflict. Rather, it is based on a vision that associates Israel's presence with a position of attack. In the Israeli strategy, which has its origins in the writings of Ben-Gurion, we find a vision of regional domination based first on minorities in the Arab world or, later, on peripheral countries such as Iran, Ethiopia and Turkey. This is followed by the pursuit of economic domination (2020 Abraham Accords) and attempts to involve the region in international conflicts in which the West is an active party against Iran [Fadlallah, 2024].
In the context of the ongoing conflict in Gaza, the President of the European Commission, Ursula von Leyen, visited Israel on 13 October 2023 and expressed support for Israel's right to self-defence against "terrorist attacks" by Hamas (Ursula von Leyen Statement, 2023). This stance is not a novel one. This position was endorsed by Germany's former Chancellor, Angela Merkel, who asserted that Israel's right to self-defence supersedes any violations of international human rights and humanitarian law by its military (The Time of Israel, 16/5/2018). The ongoing humanitarian crisis in Gaza has led to questions regarding Europe's capacity to act as a normative power. Europe, whose foreign policy is predicated on the principles of human rights and democracy, has disregarded the 1977 Additional Protocols to the Geneva Conventions (Article 51 and 57), which were invoked during the 2018-2019 return marches held by Palestinians in Gaza, who demanded the lifting of the illegal siege.
The Israeli delegation at the ICJ said South Africa tried to stop Israel defending itself. Ron Ben-Yishai, a military affairs journalist, argued that the ICJ's precautionary ruling on the Rafah operation had undermined Israel's right to self-defence [Ben Yishai, 2024]. In the 2008/2009 conflict in Gaza, Israeli lawyer Orna Ben Naftali asserted that the justifications provided by humanitarian law for the use of force are no longer valid, and that the legitimacy of force can be upheld through the introduction of new claims that contradict the fundamental principles of international humanitarian law [Feldman, Blau, 2009].
It is important to acknowledge that the Geneva Protocol of 1924 was established with the intention of preventing the perception of all wars as being fought in self-defence. Extending the right of self-defence to pre-emptive or preventive measures would return us to the 19th century. In the Wall decision of 2004, the Court identified the misuse of the right of self-defence by Israel in the context of the Wall.
The proceedings before the International Court of Justice, including the provisional measures taken by South Africa against Israel on 26 January 2024 and the Court's advisory opinion on the consequences of Israel's continued occupation (19 July 2024), collectively illustrate the existence of a colonial and racist system in Israel. In addition to the physical and biological genocide it is committing in Gaza, Israel is also attempting to control the sources of natural gas [Kassim, 2018]. The logic of settler colonialism, as identified by Palestinian scholars since the 1950s and 1960s, is evident in the context of the ongoing conflict, entailing the elimination of indigenous populations and the control of their resources. The events of 7 October 2023 represent an attempt to challenge the prevailing Israeli and Western discourse on the right of self-defence. It is challenging to justify the wars of aggression against Gaza in the name of the Israeli right of self-defence, given that the Palestinian people are under occupation and therefore have a natural right to resist it. It is incumbent upon the Palestinian people to defend their rights at the level of international law, which necessitates the challenging of the Israeli and Western legal doctrine of international law. This doctrine is one of aggression and the destruction of Palestinian interests.
The logic of State and the logic of ideology:
In examining the Sunni-Shia divide, it is not necessary to delve into its historical roots; instead, it is more fruitful to focus on its role in the ongoing rivalry between states in the Middle East. This role is inextricably linked to US policy in the region, as the discourse on this divide has its origins in the NATO laboratories. Furthermore, it is employed by Arab authoritarian regimes to stymie internal political changes and social movements such as the Arab Spring.
The Sunni-Shia schism shows how NATO has expanded in the region, similar to Europe's colonial policy of the past. The 1990-1991 Kuwait War is seen as a turning point in NATO's growth in the Middle East. Turkey and Israel were strategic outposts for the Alliance in the Middle East. For the US, the Kuwait war enabled access to the Persian Gulf region. Bilateral accords exist between the Gulf states and NATO, and a security cooperation agreement between the GCC and NATO. The rationale behind these accords is the global war on terrorism and the emergence of Iran as a regional threat. The division between Sunni and Shia identities was also a consequence of US policy towards Iraq. The dissolution of Iraq as a regional power created a power vacuum that Iran and Saudi Arabia are attempting to exploit. These two powers are attempting to shape the region in accordance with their interests.
In analysing regional dynamics, it is appropriate to consider both inter-state relations and the ideological aspect. Rather than associating the ideological aspect with the Sunni-Shia schism, it is more accurate to associate it with the divide between those who favour the status quo and the logic of the state and those who support change. This includes both internal change at the level of authoritarian Arab regimes and external change at the level of the regional system, with the establishment of independent institutions and effective conflict resolution mechanisms.
The "new Cold War thesis" focuses on ideology in regional dynamics. The thesis sees the conflict between a radical party wanting change and a moderate party wanting to keep the 1950s and 1960s status quo as a Cold War between two opposing ideologies. The radical party aims to unite the Arabs, while the moderate party seeks to maintain the status quo. The present New Cold War is between Iran and the Resistance Front (Syria, Hezbollah and Hamas) on one hand, and Saudi Arabia, the United Arab Emirates and Egypt on the other. The distinction between the Cold War of the 1950s and the contemporary iteration lies in the waning influence of Arab actors, with the ascendance of non-Arab entities, particularly those from Iran. This shift may be attributed to developments not only within the Middle East but also in the Caucasus and Central Asia.
The Middle Eastern order is distinctive as it is regarded as unacceptable and open to contestation. Gause observes that the challenge to statehood and sovereignty in the Middle East represents a distinctive feature of this region in the context of international relations [Gause III, 1999, p. 27]. The decline of Arab nationalism has been identified as a contributing factor to the deterioration of the Middle Eastern regional order. The Oslo Accords followed the decline, and the war between Iraq and Iran was triggered by the rise of Islam. More recently, the ideological aspect has manifested as an internal factor and regional implication [Amour, 2017]. Gause explains that changes in state-society relations are happening in most, if not all, of the Middle Eastern countries. These changes are system-wide. [Gause III, 1999, p.30]
The focus of discourse has shifted from emphasising the unity of the Arab nation's destiny to prioritising the relationship between states sharing Arab-Islamic culture [Valbjørn, Bank,2012]. The thesis of democracy and sovereignty is important because it allows for a democratic discourse of Arab unity. The primary unifying factor among Arab countries is the quest for change and a move away from authoritarianism [Camau, 2006]. In this context, sovereignty is understood in a democratic sense, as opposed to positions that use regional alliances and the concept of 'sovereignty' to exert control over internal society. The New Cold War has been constructed by fearful elites. The securitisation of the conflict with Iran allows Saudi Arabia to prevent an Arab Spring in the Gulf and to continue its war in Yemen. It also allows Israel to maintain control of the Palestinian territories on the grounds that a Palestinian state could become an Iranian satellite state and threaten Israeli interests [Beck, 2020, p.86].
The logic of the new Cold War (the confrontation between the Axis of Resistance and Israel) has been highlighted by the genocidal war waged by Israel on the Gaza Strip since October 2023. The Abraham Accords were not cancelled despite this discrepancy between the policies of the Arab regimes and the aspirations of their peoples. The term "moderate regime" refers to attitudes towards the interests of the West and Israel.
Jordan is a moderate regime in a difficult position. Since 2012, Jordan has hosted the Military Operation Commands (MOC), which support the Syrian opposition. Jordan is the second largest recipient of US military and financial aid in the region after Israel. A NATO office opened in Amman in July 2024 to strengthen relations between Jordan and NATO in the context of the conflict between the US, Zionists and the Palestinian people in Gaza. Jordan has also played a key role in the formation of the 'Arab Atlantic Alliance', uniting Egypt, Jordan and Iraq to liberate Iraq from Iranian influence. Jordan faces challenges as Gaza war threatens to escalate. The 'moderate' Jordanian regime is authoritarian, ruled by the king and the Circassian minority. However, the Bedouin tribes object, citing economic hardship. Unemployment rose from 12% in 2011 to 23% in 2020, with 50% of young people affected [Sorant, 2023]. The conflict in Gaza limits the policy options available to the Jordanian regime, as two-thirds of its population is Palestinian.
Academic and political discourse supports Western policies in the region. Arab monarchies and authoritarian systems are viewed as internal or cultural issues rather than geopolitical ones. The political landscape is fragmented between moderate and Sunni parties and radical and Shi'ite parties. Relations with Israel (the occupying state) are strengthened and integrated into a regional order that benefits both.
Gaza: Rethinking the regional order
In light of the genocidal war in Gaza, we must rethink the formation of a regional order based on multilateralism and Arab and Islamic solidarity, rather than US policy.
When applying international law, a multilateral approach is essential. The move from a unipolar to a multipolar international system, linked to Russia and China's strategic outlook, offers an alternative to the US bilateral approach in the Israeli-Palestinian conflict. The current geopolitical dynamics suggest the US should change its approach to the Arab-Israeli conflict. This would be better achieved by a multilateral approach, but this depends on Russia and China taking a more proactive role in the region. The Middle East will remain in a state of uncertainty without an alternative to the US position. A different approach would reduce tensions and promote international law as a means of resolving disputes.
Russia's position on the Middle East has evolved. Initially non-ideological and cooperative with the West, there has been a noticeable shift towards emphasising Russia's identity as a Eurasian state and great power, leading to a greater emphasis on its active role in international relations. In September 2015, Russia and Iran, with Hezbollah, intervened to preserve the Syrian regime following the seizure of power by external forces. This was to prolong the civil war and weaken the resistance forces, not to meet the demands of the Syrian people.
The intervention of these external forces, such as the Western and Gulf powers, was not to meet the demands of the Syrian people, but rather to prolong the civil war and weaken the resistance forces by removing the Syrian front from the equation of confrontation in the Arab-Israeli conflict.
Russia's stance on the Syrian crisis is shaped by realpolitik and a commitment to cultural diversity. The Syrian identity and various minority groups have been casualties of the United States' involvement in the Middle East. Syrian cultural distinctiveness is also evident in the Russian domestic context. Russia believes it can play a key role in defusing tensions through the principle of equidistance. In addition, Russia is a member of the Quartet (comprising the United States, the United Nations, the European Union and Russia), but the ongoing conflict in Ukraine has prevented this body from speaking with one voice on the Israeli-Palestinian conflict. Russia took the lead in 2007, organising an international conference on the Middle East, endorsed by the Security Council. Russia has also proposed ministerial consultations to coordinate a political settlement in the Middle East. More recently, Russia has sought to facilitate the reconciliation of Palestinian factions within the Palestine Liberation Organisation (PLO), considering the implications for Russian-Israeli relations. China has also joined these efforts, resulting in the Beijing Accord.
When looking at Arab and Islamic solidarity, the Arab League's origins can be a useful starting point. Two aspects of its founding reflect the tension between nationalism and the state. The 1944 Alexandria Protocol rejected the use of force and a foreign policy that harms the interests of others. However, the 1945 Arab League Charter moved away from this, indicating a shift in the League's approach. Arab or Islamic solidarity may also be based on the fact that all three regional institutions use international law and Islamic law. The Arab League recognised the influence of the League of Nations and Islamic law as early as 1945.
In the field of conflict resolution, there is no significant divergence between international law and Islamic law. The concept of "conflict resolution" in Islamic international law (siyar) has a substantial historical and jurisprudential basis. Derived from the plural of sirah, meaning "conduct", siyar was originally coined by Abu Hanifah, a prominent 2nd-century Muslim jurist, to describe the conduct of the Prophet Muhammad (PBUH) in his battles and the conduct of Muslim rulers in international affairs. Notable contributors to the development of Muslim international law include Muhammad Ibn al-Hasan al-Shaybani, whose works such as "Al-Siyar al-Saghir" and "Al-Siyar al-Kabir" deal with the rules of warfare, the permissibility and prohibition of certain actions, and the conditions for making peace and maintaining truces with non-Muslim entities.
The Islamic concept of conflict resolution encompasses a range of mechanisms, including direct negotiations, good offices, mediation and arbitration [Hamidullah, 1945; Munir, 2003, Munir, 2012].
Islamic international law evolves like international law. The peaceful conflict resolution in international law we know today traces back to the 1924 Geneva Protocol, while the recognition of human rights as a core international law tenet only emerged after World War Two. Mashood Baderin says that Islamic international law can be made more constructive and progressive to improve human rights [Baderin, 2007]. The present author says that Islamic law must be reformed at the same time as regional institutions. This reformist position is based on a liberal view of the development of the rule of law in the Arab world. Islamic law can be developed by qiyas (analogy), through interpretation, which is the fourth source of Islamic law. The primary sources of Islamic law are the Qur'an and Sunnah, while ijma and qiyas are secondary. An alternative reformist position could be based on a non-imperialist perspective founded upon natural law, as understood by the English working-class historian E.P. Thompson, who spoke of 'an unqualified human good' [Waldron, 2011, p.10]. In other words, humanitarianism can be viewed from a distinct cultural or ideological vantage point. It is noteworthy that international law has only witnessed the advent of conflict resolution mechanisms in recent times, with the Hague Conventions of 1899-1907 and the Geneva Protocol of 1924 representing the most significant milestones in this regard.
Conclusions:
The study aims to understand how international law is implemented in the region, focusing on how states and regional institutions resolve disputes. It argues that geopolitical dynamics are key. The region's reliance on superpowers for pressure has been identified as a factor in the lack of independent dispute resolution. The rise of Gulf States has led to a preference for the normalisation approach to dispute resolution and the integration of Israel into the regional order in the Middle East.
To analyse this, we have drawn on the concept of regional order and its implications for the Middle East. To understand the geopolitical landscape, we must consider ideological currents like Arab nationalism and Islamism. Since the 1990s, the Middle East has been experiencing a cold war between those who want to change the regional order and those who want to keep things as they are.