Özet:

Along with the end of the Second World War in the international system, whose legal structure represented by the establishment of the United Nations, the use of force was subjected to important regulations. These regulations were primarily for the prevention of conflicts between states and based on a classic definition of war. However, after the Cold War, discussions on a new war conceptualization began. This conceptualization, namely “new war” sat on the idea of wars are not anymore between states but in societies, and thus United Nations system is insufficient to respond to this new wars. This conceptualization accompanied by new concepts of international law such as humanitarian intervention and the responsibility to protect. The thesis of new war pointed out that the wars in the societies occur for the sake of the social, economic, and identity politics. This study aims to discuss wheter the new wars are really new. The thoughts of two important jurist Carl Schmitt and Hans Kelsen on law, international law and war constitute the framework to the discussion conducted on whether new wars are really new. Kelsen aims to seperate the law from psychology, sociology, ethics and political theory and demonstrated the methodology of the law is different from them. According to him, the legality of a legal order derives from a behavior which is a delict/violation/offense and a sanction to which this behavior is connected. Kelsen accepts war either as a violation of international law, a delict or a sanction of international legal order. In this context, Kelsen gives the name of war on an act of a state to another state. Therefore the new wars are not war for him. For Schmitt, the concept of political constitutes the basis of the essence of law and Schmitt to grasp the essence of the law uses the concept of nomos. According to Schmitt, the specific political distinction is the distinction between friend and foe. States, in moments of crisis identify an internal enemy and throw him out of the political space in order to establish normal state, and this process is an indication that a civil war is imminent. Therefore, it is as old as the state. In this context, the “new war” thesis giving the name of the war on organized violence in a wide sense, calls the idea of international order. This international order idea brings the necessity of maintaining the stability. Therefore, naming this kind of conflicts as new wars, allows the idea that they destablize the international order. Indeed, the concepts of humanitarian intervention and the responsibility to protect came up with the new war are also clear indications of this condition. Humanitarian intervention means the use of force of a state to protect the citizens of another state from the tyranny of that state. This kind of interventions allows to overcome the wall of state sovereignty because of the violations of human rights in new wars. The responsibility to protect differs from humanitarian interventions in some respects. It means that states have responsibility to protect their nationals from avoidable disasters such as mass murder, rape, hunger and if they don’t fulfill this responsibility in case of the lack of desire or ability, the responsibility of international community arises. These concepts are not a norm of international law and they paved the way to disscussions on the contiunity of war. This kind of interventions are only as new as the new wars.

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