When Arms Support Becomes Complicity:

Restraint Thresholds in Islamic and International Law

Osama Hamza Mahmoud Abdelfattah

 

Abstract: This article argues that the most persistent accountability failure in atrocity prevention is not the absence of legal rules governing arms transfers, but the operational gap between accumulating atrocity-risk indicators and the permissive export authorisations relied upon to continue supply. Drawing on international humanitarian law, state responsibility, and individual criminal liability doctrines, it develops a dual-track restraint framework. The international-law track integrates treaty-based transfer prohibitions, due diligence, and responsibility for aid or assistance; the Islamic-law track operationalises complicity through taʿāwun (non-cooperation in wrongdoing), sadd al-dharā’iʿ (blocking the means), and siyar constraints on warfare. The article’s original contribution is an administrable test that converts risk awareness into legally disciplined restraint: where repeated warning indicators and predictable means-to-harm pathways make civilian harm foreseeably likely, this article argues that continued assistance should be treated as presumptively impermissible unless necessity is narrowly demonstrated and mitigation is shown to be effective. This is advanced as a lex ferenda standard, a legally disciplined proposal for how existing prevention-oriented duties under the Arms Trade Treaty (ATT), Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) Article 16, and Islamic-law facilitation doctrines ought to be operationalised, rather than a restatement of a burden-shifting rule currently recognised in positive international law. The framework is applied to Gaza and Syria to illuminate how secrecy, threshold ambiguity, and institutional fragmentation enable continued supply despite escalating risk. The article concludes with implementable reforms to harden refusal and suspension triggers, reduce evidentiary barriers, and strengthen enforcement mechanisms.