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Download This PDF File Economics, Law and Policy ISSN 2576-2060 (Print) ISSN 2576-2052 (Online) Vol. 2, No. 2, 2019 www.scholink.org/ojs/index.php/elp Original Paper The Just War and the Mystry of Self Defense Walid Fahmy1* 1 Department of Public International Law, Faculty of Legal Studies, Pharos University in Alexandria, Alexandria, Egypt * Walid Fahmy, Department of Public International Law, Faculty of Legal Studies, Pharos University in Alexandria, Alexandria, Egypt Received: June 23, 2019 Accepted: July 5, 2019 Online Published: August 1, 2019 doi:10.22158/elp.v2n2p156 URL: http://dx.doi.org/10.22158/elp.v2n2p156 Abstract The theory of the Just War initiated by St. Augustine must absolutely seek peace. To avoid this being the case, two phases are defined: Jus ad Bellum; the Jus in Bello. Thus, self-defense as a just cause is a concept often addressed in international law and its explicit recognition in Article 51 of the United Nations Charter has made it even more present. But, from the adoption of the Charter to today, there are many examples of actions or arguments of states based on self-defense that are more or less in phase with each other. The most recent references to the concept of self-defense have developed in a particularly volatile international context since the attacks of September 11, 2001, and the consequences that ensued. The relationship between the just war and self-defense raises some questions: can the anti-terrorism war, the preventive war and the war against non-state actors be considered part of the principle of self-defense? What are the criteria for Jus ad Bellum and Jus in Bello considered during the Self- defense? Keywords Just War, Jus ad Bellum, Jus in Bello, self-defense, terrorism, Preventive war, the war against non-state actors 1. Introduction The possibility of just war offers three necessarily related series of questions. There are issues encompassing the states of the reasonable turn to war, which surmise that war is a honest to goodness method of direct. These are inquiries of Jus ad Bellum, and conjure the deontological standards of just cause, the legitimate authority and right intention. Every one of these criteria might be met, yet it might at present be hasty or foolhardy to take up arms. Thus, the outcomes can’t be totally disregarded—offering ascend to inquiries of last resort and proportionality. Furthermore, there are issues identifying with the 156 www.scholink.org/ojs/index.php/elp Economics, Law and Policy Vol. 2, No. 2, 2019 direct of war, inquiries of Jus in Bello, all the more regularly alluded to as the laws of war or the laws of armed conflict (Boucher, 2011, pp. 92-93). The self-defense is the pillars of armed conflict. That is why the decision of military intervention should be made in accordance with the rules of international law. Article 51 of the Charter of Nations expresses the common law of self-defense. It is opposable to all States as a constituent element of the mandatory rule of the prohibition of the use of force, both on a contractual basis and, subject to its purely procedural aspects, as customary. Its purpose is to regulate the relations between States, the relations between individuals putting at stake self-defense to another title, to determine according to the material right applicable. The jus contra bellum, under which Article 51 of the Charter must be placed, presupposes that one is in the hypothesis of the attack of one State against another State (Tsagourias & Politis) (Note 1). If, on the other hand, it is a question of protecting not a State but its life or its security on an individual basis, the self-defense is understood in a different sense, with conditions of application which do not necessarily correspond to those applicable between States. Thus, it was noted that the United Nations Forces could respond in self-defense under conditions defined in specific provisions (Corten, 2014, pp. 653-654). The use of armed force involves also the protection from terrorism against aggression by non-state actors. This aggression is characterized by a serious breach of the obligation to respect the fundamental rights of individuals, by the creation of measurable damage, and by a connection between the breaches of the obligation and the damage. The army intervenes only in case of self-defense and if there is damage. There is not fundamentally a difference between a States’ aggression, potential aggression and an aggression organized by non-state actors or terrorist group. This is a simple and unambiguous answer to the question of what is the difference between the US intervention in “Afghanistan 2001”, “Iraq in 2003” and that of 1991 called the “Desert Storm” (Yoo, 2003, p. 564) (Note 2) following the invasion of the Kuwait and “Syria 2014” (Note 3). According to the theory of just war, one can go from Jus ad Bellum to the practical rules of the use of weapons jus in bello. The use of an army in its strike is never so selective. However, self-defense is a response to aggression against property and/or people. The first constraint imposed by self-defense is the proportionality of the response and the necessity. The second constraint imposed by self-defense is that the response does not strike third parties (principle of discrimination). 2. The Majors’ Aspects of Just War and Its Applications 2.1 The War Should Begun Justly by Legitimate Sovereign Authority Acting on a Just Cause (Jus ad Bellum) Jus ad Bellum can be summed up in an extremely basic articulation put forward by Thomas Aquinas. On the chance that a war is started fairly it is done as such by sovereign authority following up on a just cause with right aim. Aquinas, a disciple of Augustine’s composition, destitute down the fundamental components of Augustine’s work and arranged it into the trinity of Jus ad Bellum. Every component of 157 Published by SCHOLINK INC. www.scholink.org/ojs/index.php/elp Economics, Law and Policy Vol. 2, No. 2, 2019 Aquinas’ announcement is of basic significance to the comprehension of Jus ad Bellum in all. The request of necessities that Aquinas states is critical, the first being sovereign authority. A sovereign authority is a properly constituted power concerning the pursuing of war. A war can’t be viewed as just except if it has been announced by a pioneer or leader formally put into control by the population it administers universally perceived as having the inborn authority to do as such (Holmes, 2011, p. 14). Furthermore, Jus ad Bellum is customarily seen as the assortment of law which gives grounds supporting the change from peace to war (Stahn, 2007, p. 926), in other words, to reinforce peace by restrict war (Hakimi, 2017, p. 43). The just cause is one of the requisites of Jus ad Bellum that is, one of the requirements for the turn to armed force. Contemporary Just war scholars frequently accept, thusly, that the necessity of worthwhile Just cause applies just to the underlying resort to war, and that after war has started the only thing that is important is the means by which the war is led. In any case, this can’t be correct. It is conceivable that a war can start without a noble motivation and just cause yet turn out to be exactly when a worthwhile just cause emerges throughout the battling and assumes control as the objective of the war (Macmhan, 2005, p. 2). Without a doubt, the just cause is, constantly required for taking part in war. Just cause determines the limits for which it is reasonable to take part in war, or that it is allowable to seek after by methods for war. One vital ramifications of the possibility that any commitment in war requires a just cause is that when it has been accomplished, continuation of the war lacks reasons and is along these lines impermissible. The just cause in this manner decides the conditions of the end of war (Macmhan, 2005, p. 2). But defender a worthy cause is not enough to legitimize military intervention. Governments at war must also demonstrate that their true intentions are just and honest. This is the second criterion of just war (Benjamin, 2007, p. 11). Moreover, just wars are just waged by sovereign authority for the expressed causes and not for concealed reasons. All through history numerous sovereign authorities have gone to war guaranteeing that their expectation was to bring equity, when in certainty their shrouded motivation was to secure power for themselves. This is the genuine importance of right intent (Holmes, 2011, pp. 15-16). It is, however, quite difficult to know the real intentions behind a declaration of war. It is for this reason that it is almost always preferable for a military operation to be conducted by a coalition, such as NATO in Kosovo, rather than by a state alone. In this respect, one must avoid confusing the legitimacy of a war with the legality of war (Corten, Delcourt, 2000, p. 20) (Guicherd, 1999, pp. 19-20) (Note 4). The third condition of a just war is that the use of armed force is decided by a legitimate authority. This statement gave the impression that the only legitimate authority authorized to authorize a military intervention is the United Nations. This interpretation is however questionable. If the authorization of the Security Council is preferable, it is not always obligatory at the outbreak of a just war. When the Security Council is paralyzed because of rivalry among the permanent members, it may be acceptable not to seek the consent of the UN to respond to an emergency situation (Benjamin, 2007, p.
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