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  This module is a resource for lecturers  

 

The Middle East and Gulf region

 

League of Arab States

The League of Arab States (LAS) was established on 22 March 1945 as an intergovernmental organization and has a membership of 22 Arab nations. Its founding instrument is the Charter of the Arab League (adopted 22 March 1945) which provides that the Organization's overarching objectives include the strengthening of relations between its Member States, the coordination of their policies in order to enhance cooperation, and the safeguarding of their independence and sovereignty. Its principal organs are the Council, the permanent Committees, and the Secretariat general.

In terms of the normative significance of its outputs - predominantly resolutions and statements - the LAS has no mechanism with which to enforce compliance with its resolutions. Indeed, even the Charter states that decisions reached by a majority "shall bind only those [States] that accept them". In doing so, and as reflected in other key instruments, the organization is founded on the prevalence of national sovereignty with limited ability to take collective action including in relation to its own Membership. In part, this is attributable to regional political, historical, religious and so forth complexities. Additionally, historically, levels of adoption and implementation with agreed LAS outputs and measures have generally been low in practice.

Counter-terrorism instruments 

The phenomenon of terrorism is not new to the geographical regions represented by the Organization's membership (the Middle East, Gulf and North Africa), though the form and source of such activities have varied. In response to the accompanying threats and needs for increased regional cooperation, agreement was reached on the Arab Strategy to Combat terrorism (1997). The following year, LAS adopted its primary, binding, instrument against terrorism, the Arab Convention for the Suppression of Terrorism (adopted 22 April 1998, entered into force 7 May 1999).

The Convention is fairly broad, ranging in terms of the scope of topics that it includes. Compared with most other regional instruments, with the exception of the Organisation of Islamic Cooperation, it has a number of distinguishing features. One is that its underpinning principles include not only international law, but also "the tenets of the Islamic Sharia" (Preamble).

Another feature of the Convention discussed in Module 4 in relation to differing regional approaches to defining terrorism - is that it "[a]ffirm[s] the right of peoples to combat foreign occupation and aggression by whatever means, including armed struggle, in order to liberate their territories and secure their right to self-determination". Under this provision, persons engaged in these armed struggles shall not be deemed to have committed criminal offences under the Convention (article 2(a)).

There are a number of other features of the Convention which raise issues when considered from the perspective of the rule of law, international human rights and international humanitarian law obligations of individual Member States, and related normative standards. The drafting of the Convention is very broad, (e.g., in the definition of terrorism (article 2), the concepts of "threat" and "violence" are not defined), and there is no reference within the Convention's text to international human rights law; instead reference is made only to the national law of the Convention's States parties - not all of whom are parties to applicable international human rights treaties - as well as the Convention itself. Indeed, concern has been expressed by some commentators about the potential effect which the implementation of the Convention within the national legal structures of Member States would have in relation to efforts to promote and strengthen domestic human rights reforms at a national level. Finally, it is noted that the Convention does not expressly affirm the international legal framework underpinning the UN Global Counter-Terrorism Strategy (see Module 3), and its principles or goals.

The principal activities of the League of Arab Statues include the convening of summits and issuing of recommendations to its Membership. For example, during the 26th Arab League Summit, held in Egypt in 2015, to discuss significant regional crises, including terrorism-related issues, a number of recommendations were adopted, including for the creation of a joint Arab military force to deal with challenges posed by extremist terrorist groups. Reflecting the inherent limitations of soft law resolutions, statements and so forth, it would seem that this recommendation has not been implemented to date (Sheira and Ammash, 2015).

Key LAS counter-terrorism instruments

 

Human rights instruments and mechanisms

No references are made to human rights in the Charter of the Arab League 1945 upon which the Organization is founded. This is unsurprising since the first international treaty to make such references was the United Nations Charter, which was adopted after the Charter of the Arab League. In subsequent instruments, indirect references to respecting international human rights standards were sometimes made by implication through commitments to respect the principles of the United Nations Charter (see, e.g., League of Arab States, 1950, preamble and article 12).

In 1968, the Council of the League created the Arabic Commission of Human Rights with a promotion and educational mandate regarding human rights issues. Whilst its creation was an encouraging development for the furtherance of human rights within the region, its impact and influence are significantly constrained by the absence of any enforcement mechanism such as those exercisable by the IACommHR.

A further evolution was the adoption by the Council of the League of Arab States of the Arab Charter on Human Rights on 15 September 1994 (never ratified by any of the Member States). Although the Charter guaranteed many important human rights, and added some regional variations of its own, it failed to recognize many other rights and safeguards guaranteed in international human rights standards. The drafting of its provisions on substantive rights was also incomplete compared with the international human rights law treaty obligations ratified by many LAS Member States. For example, the Charter includes a prohibition on torture as "treatment" but does not clearly prohibit torture as "punishment", including corporal punishment. For these and other reasons, there was significant concern, especially among non-governmental organizations, about the effect which the Charter would have on efforts to promote and strengthen internationally agreed human rights and humanitarian law instruments and normative standards within Member States.

In response to such criticisms and concerns, a revised Arab Charter on Human Rights was adopted on 22 May 2004, which entered into force on 15 March 2008. Some elements of the Charter remained the same, such as the reaffirmation of the 1948 Universal Declaration on Human Rights and the 1990 Cairo Declaration on Human Rights in Islam (adopted 5 August 1990), which were controversial in relation to the 1994 Charter. The text of some important provisions remained unchanged, such as article 8(1) that "No one shall be subjected to physical or psychological torture or to cruel, degrading, humiliating or inhuman treatment", which once again omitted any reference to "punishment"; and the text of article 5 on the right to life remained very brief. Other provisions though, such as article 4 derogations, were more reflective of existing international human rights standards.

While both Charters provide for the provision of periodic reports from States parties to an expert Committee, they do not provide any mechanism for individual or State petitions to this Committee alleging violations of the Charter's provisions, nor any powers for monitoring or enforcing compliance by Member States.

There has, however, been some progress towards the creation of an Arab Court on Human Rights, based in Bahrain, to address some of these gaps in enforcement mechanisms. The Court's statute was approved by the Ministerial Council of the League of Arab States on 7 September 2014, and during 2016 further revisions were being made to its text (Arab News, 2016). Some reservations have been expressed regarding the human rights compliance of the proposed Court, including the inability of victims to have direct recourse to the Court (only States parties, and NGOs that are both accredited in a State party and are specifically permitted to do so by that State, can bring cases before the Court), and regarding ensuring proper guarantees of the Courts and judicial independence and impartiality. There are, however, still many hurdles to be crossed before the planned Court comes into effect and operation. An ongoing attempt at creating an Islamic International Court of Justice - a concept first agreed in 1987 by the then Members of the Organization of Islamic Conference - has as not yet come into being.

Key LAS human rights instruments

 

Organization of Islamic Cooperation

The Organization of Islamic Cooperation (OIC) was created in 1969. It is the second largest inter-governmental organization after the United Nations with a membership of 57 States, including the State of Palestine, spread across four continents. The OIC aims to safeguard and protect the interests of the Muslim world, in particular through strengthening solidarity and cooperation among its Member States.

Of its organs, the three of primary relevance for this Module are the Islamic Summit (composed of Heads of State and Government), Council of Foreign Ministers, and the Independent Permanent Human Rights Commission. The most influential outputs, both politically and legally, are those of the Islamic Summit and Council of Foreign Ministers, which adopt numerous declarations, resolutions and communiqués, including on terrorism-related issues (particularly as political, and sometimes legal, resolutions). Although these outputs are generally non-binding on the Members, they are nevertheless politically and diplomatically important and form an important part of the Organization's body of law.

The constitutional instrument of the OIC is its Charter. The original one was adopted during the Conference of Foreign Ministers, held in Jeddah from 29 February to 4 March 1972, but was subsequently revised and updated in 2008 during its Eleventh Islamic Summit held in Dakar on 13-14 March 2008 (changing its name from 'Organization of Islamic Conference', which suggested a looser confederation of States, to 'Organization of Islamic Cooperation'). As with the LAS, one of its distinguishing features is that it is underpinned by Islamic as well as international law principles.

Counter-terrorism instruments

The OIC has been actively engaged in terrorism-related matters throughout is existence, with many of its State Members having experienced different forms of terrorism. Among the identified priorities in the Organization's strategic programme, the OIC-2025 Programme of Action (OIC, 2016(a)), are peace and security, counter-terrorism, as well as human rights and good governance.

Its first key instrument was the adoption of the OIC Code of Conduct on Terrorism 1994 (OIC, 1994). Although the Code was political rather than legally binding in nature, it influenced the subsequent drafting of the Convention of the Organization of the Islamic Conference on Combating International Terrorism in 1999 (adopted 1 July 1999, entered into force 7 November 2002), which is the Organization's primary instrument against terrorism.

The Convention has a number of notable features. One is its article 2(a) exemption from the scope of the Convention's provisions of those engaged in what it considers to be legitimate armed self-determination struggles (as with the League of Arab States Convention). This is an important provision since the OIC, through Malaysia in 2005 and since, has referred to this approach to defining terrorism in the context of ongoing efforts to agree on a universal definition of terrorism in the context of the draft Comprehensive Convention. (See further Module 4).

In terms of its influence, although the Convention technically came into effect on 7 November 2002, the broadness of some of its provisions risks hampering its effectiveness as a substantive instrument. Moreover, its effectiveness is affected by a low level of uptake and ratification from within its membership, requiring only seven of its total membership to ratify it in order to come into effect, although several more have become States parties since. Nevertheless, the Convention is an important legal source, including in terms of articulating the Organization's agreed institutional approach to counter-terrorism and developing regional terrorism-related norms.

In recognition of these and other challenges that have been encountered in relation to the 1999 Convention, the Organization announced in 2016 its consideration of a proposal for additional protocols as well as updates to the provisions of the 1999 Convention to strengthen existing levels of cooperation. This would also better reflect new trends in terrorism such as cyber terrorism, terrorist financing, transboundary terrorist networks, and to underline the importance of respecting human rights in counter-terrorism responses (OIC, 2016(b); OIC, 2017).

Key OIC counter-terrorism instruments

 

Human rights instruments and mechanisms

The OIC has been engaged in a number of human rights related activities for some time, including in pursuit of its goal of promoting solidarity founded on shared Islamic values.

One of its principal instruments is the 1990 Cairo Declaration on Human Rights in Islam. Although not a legally binding instrument, it has proven to be influential, including within the context of the Organization's institutional human rights discussions, with the Declaration being affirmed regularly within the text of many of its resolutions as well as human rights related treaty texts. An important lingering concern, however, is that the provisions of the Cairo Declaration may not fully reflect internationally agreed human rights standards, including the international treaty obligations of OIC Member States which have ratified international human rights conventions.

A notable milestone towards better reflecting the underpinning legal principles of the United Nations Global Counter-Terrorism Strategy was the adoption of the revised Organization of Islamic Cooperation Charter 2008. Its key objectives and underpinning principles include "to promote human rights and fundamental freedoms, good governance, rule of law, democracy and accountability in Member States in accordance with their constitutional and legal systems" (Preamble); and "to uphold the objectives and principles of the present Charter, the Charter of the United Nations and international law as well as international humanitarian law while strictly adhering to the principle of non-interference in matters which are essentially within the domestic jurisdiction of any State" (Preamble, article 2(1) and (5)).

Another significant development was the creation in 2008 of the Independent Permanent Commission on Human Rights, as an organ of the OIC, to "promote the civil, political, social and economic rights enshrined in the organization's covenants and declarations and in universally agreed human rights instruments, in conformity with Islamic values" (OIC, 2008, article 15). The Commission was formally launched with the adoption of its Statute by the 38th Session of the Council of Foreign Ministers held in Astana, Kazakhstan, on 28-30 June 2011. Its primary functions include promoting and advising upon human rights standards and principles, pursuing human rights agendas, capacity-building and educational activities, as well as technical legislative assistance to Member States. Notably, its approach is to undertake such activities "in conformity with the universally recognized human rights norms and standards and with the added value of Islamic principles of justice and equality". ( About IPHRC). In terms of its key outputs, these largely take the form of reports.

As with a number of other regional human rights mechanisms, however, the Commission does not benefit from any systematic monitoring mechanisms, such as the periodic submission of Member States' reports, has no ability to receive and adjudicate on individual or States petitions regarding alleged human rights violations, and has no powers of enforcement.

Although article 14 of the 2008 Charter also predicted the imminent introduction of the International Islamic Court of Justice, first conceived by Kuwait in 1987, it has still not yet been possible to secure the necessary levels of political consensus to finalize the Statute and bring it into force, upon which the Court's existence is dependent. In any event, the Court will be concerned with inter-state disputes rather than individual complaints.

Key OIC human rights instrument

 

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