After the recent events in Paris and the reaffirmation of the great possibility of a terrorist attack in any area of any Western State we have witnessed the most disparate reactions. Some politicians in their hot statements have stated concepts like "France is at war", others have given orders to directly attack ISIS, but the question we can legitimately ask ourselves is: are we at war?
Today war is a remote concept in that, especially following the end of the Second World War and the relative rise of the United Nations, it has been banned because it is in absolute contrast with the principle of maintaining global peace. However, the possibility remains that the state of war can be concretely realized, not perhaps because of our intention but because of the continuous acts of attack that we are now suffering too often from terrorist organizations. However, to answer the question that we asked ourselves, we would like to examine the current legislation with regard to the state of war.
The declaration of war is that formal act issued by a national government which, by virtue of its own procedure, declares the existence of a state of war between him and one or more countries.
The first declarations were issued around the fourteenth century and, immediately, were identified as instruments proper to diplomacy.
Today, with the declaration of war, international law recognizes a state of hostility and the relative application of theassett specific international regulatory framework. The first treaties concerning the declaration of war were the Hague Conventions of 1899 and 1907. The subsequent Briand-Kellogg Pact of the 1928 represents instead the source more dating to declare as illegitimate the recourse to the armed conflict for the resolution of the divergences whatever they are, line then remarkarcato from the UN. This does not mean that every military action is illegal: some situations are defined as legal actions for international law, an example is shown by the 1991 Gulf War. Our own Constitution in art. 11 forbids war but merely as an attack tool. The use of armed force can therefore be lawful when indispensable, for example in order to defend itself.
Outlining the conduct that the State must adopt for the declaration of a state of war is the III Hague Convention of 1907. The hostilities, in fact, must not begin without a preventive unequivocal warning that it may have or the form of a declaration of motivated war or an ultimatum with a conditional declaration of war that will be implemented in the event that the ultimatum itself is disregarded. The state of war must be notified to the neutral signatory states of the Convention even though it will not produce any effect on them. For this purpose, it is necessary to define how Italy has not ratified this Convention, therefore it is not obliged to comply with it, unlike France, which ratified it on 7 October 1910, or Russia, which joined it on 27 November 1909.
After the first sensational Islamic terrorist attack of the Twin Towers in the 2001 has begun what some scholars have called "global war" for which, however, official acts have not been fulfilled. The enemy has changed and from one state it has become an external entity.
Today I do not believe a formal declaration of the state of war is possible, indeed, the eventual formal declaration would lead to recognizing that ISIS is a State with all that follows from it at the level of international humanitarian law. According to the writer, it is therefore necessary to report a possible armed attack to the principle of preventing a terrorist action that can be carried out with a high degree of hypotheticality especially given the declarations made by the members of the organization.
Precisely the speeches contained in the video messages can reasonably be considered as a solid basis for the armed intervention, in fact, as demonstrated by recent historical precedents, these threats do not manifest themselves as merely feared but are all concrete and actual and a bitter demonstration was given to us at last from the events beyond the Alps.
