O uso da força e a legítima defesa em direito internacional contra atores não estatais no contexto do estado islâmico

Abstract

The purpose of this research is to analyze whether a sovereign State, making use of force, can claim the exception of international self-defense in the context of the Islamic state, i.e. whether contemporary international law is able to answer this question and whether the current legislation accompanies the evolution of world society. When researching on the prohibition of the use of force, the consequence is to understand the possibility of claiming international self-defense in the adequacy of the necessity, proportionality and immediate character of the measure, disposed in article 51 of the UN Charter and, mainly, how to adjust the new international order when the challenge is international terrorism, including its definition. In the reflection and analysis of the Charter, under the restrictive perspective of the international legal order, the claim of self-defense may be applied against States that are considered sovereign, if they contain the necessary requirements to be considered as a country. This research turns to the Islamic state that despite having some State structure, is not considered as such, and therefore, self-defense can not be claimed against it. The jurisprudence of the International Court of Justice and the UN Charter itself go so far that it is not possible to claim self-defense against a non-state actor. The result is that in practice, the international community faces something complex, since it is necessary to contain the advance and development of terrorism, whatever its structure, guaranteeing the effectiveness and respect for human rights. The problem is that if the possibility of a liberal interpretation of the Charter is admitted, self-defense can be invoked, since it is a State practice, based on customary law. However, the limitation of international law is that it is not able to answer this question, because if so, its liberal analysis comes up against another issue that is the question about the decisions with political nature pronounced by the UN Security Council. The solution is to change the international legislation at this point, adapting to the practice, in addition to changing the composition of the body responsible for Resolutions of use of force and self-defense by States. The impact is that even if the structure of the UN and the Security Council are considered, it is the best Organization model of a universal character in the history of humanity. International law is facing terrorism that, although it existed in 1945, was not in seen as the current frame, and its practice and results were completely different at the time. Until then, war existed between sovereign States and not against non-state organizations, so the issue is new and the international moment is delicate and challenging, therefore deserves attention, especially in building a culture of peace