The legal legitimacy of Italy and its military participation against ISIS

(To Giuseppe Paccione)
12/10/15

Despite the lack of knowledge of international law by both parliamentarians who are in opposition, both those who support the current government, and those who appeal to the well-known article 11 of the constitution - which states that Italy repudiates war as an instrument of offense against the freedom of other peoples and as a means of resolving international disputes; allows on equal terms with other states, the limitations of sovereignty necessary for an order that ensures peace and justice among nations (...) - or the United Nations Charter itself, the possibility of striking with military instruments raises on the legal level, certain issues such as the legitimacy of armed coercive action, id est the use of force, according to general international law, the necessary participation of the two branches of the parliament - Senate and House - in order to adopt a decision and, finally, respect for the norms of international human rights law.

A note to be emphasized should be made, that is to say that a probable military operation, thanks to the bombing, against the non-state actor, the cd Stato islamico, is purely legitimate and that it does not need the authorization of the UN body, responsible for maintaining international peace and security, ie the Security Council, but only the request or theassent of the Iraqi government, recognized by the international community. With regard to the resolution of the parliamentary branches, which is not absolutely essential, it is necessary to highlight the direction of the mission which must carefully follow the rules of general international law.

The war, still under way in Iraq and Syria, is part of an internal or civil war and, therefore, it is an internal armed conflict, where the government of Baghdad, recognized by the international community, and the Islamic State are clashing. , considered non-state actor. ISIS fighters, considered as rebels of this unrecognized state, are thought to be a cluster of insurgents fighting against Iraqi government authorities. This non-state actor, considered in the same way as other insurrection groups, has adopted new ways of putting into action a fight through international terrorism as an instrument of war violence. The Islamic State of Iraq and Syria o Daesh it enjoys a particular effect, although it must be considered the fact that it has control over the territory where it is established, but this does not consider it still a real State.

At this point it can not be that in favor of the international law that considers support for a constituted government to be legitimate and recognized that he is grappling with this insurrectional movement.

Returning to the role of our country in the armed conflict against international terrorism in the Iraqi area, but not now in Syria, it should be mentioned that it is already participating in the logistical plan in favor of Iraq, through the supply of weapons and preparation to the Kurds - with the full assent of the government of Baghdad - fighting the so-called Islamic caliphate or state, by training in concert with the Iraqi police and sending Tornado on a mission to reconnoit and illuminate the targets to be hit . I reiterate that the Italian intervention has already obtained the approval of the legitimate Iraqi government, for which it does not need the authorization of the Security Council.

Putting aside the content of the article 11 of our Constitution that inhibits the war of aggression and the use of armed coercion as an instrument of offense to the freedom of peoples, which, moreover, not feasible in this case, I would say that the provision of the article 78 of the Constitution and the resolution of the state of war by the Parliament - according to which the Chambers deliberate the state of war and confer on the Government the necessary powers - must also be put aside, as well as the article 87 , paragraph 9, which states the declaration of war by the President of the Republic - under which he has the command of the armed forces, presides over the Supreme Defense Council established according to the law, declares the state of war resolved by the Chambers. In the case you are dealing with it would not be war, de quo to constitutional norms, also imagining that they should undertake with the Tornando bombing actions on the positions of the insurgents of the Daesh.

A resolution, technically speaking, of the authorization of the two Houses would not need to send armed troops abroad in the context of conflicts not classified as war or war, but, as is well known, it is customary to precede the sending of forces from a parliamentary debate, followed by the adoption of a resolution. It is being debated whether the resolution approved by the Foreign and Defense Committees of the House and Senate (Res. n.7-00456 / 20 August 2015), a few months ago, for sending logistics material to Iraq, it also includes the presence or participation of military aircraft, such as Tornado, to the bombings.

It is known that all war-related operations must comply with the rules of international human rights law; in particular, when air strikes occur, it is necessary to follow mandatorily respect for them, in such a way as to hit only the military objectives and not the civil ones and to circumscribe collateral damage which, at times, can not be avoided.

Our country, on internal armed conflicts, like the one present today in Iraq, is obliged to respect the norms present in the 2 ° Additional protocol to the four Geneva conventions of the 1949. The selection of objectives, in the context of a coalition of military forces, can cause problems Tornado Italians should avoid their participation in operations that could be likely to cause damage to civilians. For example, the recent bombing of the United States on the hospital of the Gods returns to the mind Doctors without Borders in Afghanistan, which indicates that caution must be high.

Ergo, a resolution by the two branches of the parliament of address should commit the executive - id est the current government - to ensure that military operations are prevented from causing damage to the civilian population. Finally, it should also be added that both the government and the competent ministries (such as the Defense one) have the task of dictating the rules of engagement and which can be equipped with mechanisms that aim to avoid participation with the anti-ISIS coalition. to high-risk operations on the level of human rights.