Legality of Pakistan surgical strikes: India has arsenal of lawful defences at its disposal, conjecture is unnecessary

While it is indisputable that, principally, bombings well within the territory of Pakistan bear greater legal repercussions than the erstwhile surgical operations in Pakistan-occupied-Kashmir, authors argue that India has a whole arsenal of legal defences at its disposal and the conjectures are therefore inappropriate

Raghav Pandey and Anuj Bansal February 26, 2019 17:45:41 IST
Legality of Pakistan surgical strikes: India has arsenal of lawful defences at its disposal, conjecture is unnecessary
  • While it is indisputable that bombings well within the territory of Pakistan bear greater legal repercussions than the erstwhile surgical operations in PoK, authors argue that India has a whole arsenal of legal defences at its disposal

  • India's stance is strengthened by Resolutions 1368 and 1373 of the United Nations which recognise acts of international terrorism as an actionable threat to international peace and security

  • There have been valid preemptive strikes in response to terror attacks in the past too. The US claimed to be acting in accordance with Article 51, when on 20th August, 1998 it launched cruise missile attacks inside Afghanistan and Sudan

Minutes after Pakistan's foreign minister branded the strikes by Indian Air Force in Khyber-Pakhtunkhwa province as an act of 'grave aggression', conjectures questioning the strike's validity in international law have emerged. While it is indisputable that, principally, bombings well within the territory of Pakistan bear greater legal repercussions than the erstwhile surgical operations in Pakistan-occupied-Kashmir, authors argue that India has a whole arsenal of legal defences at its disposal and the conjectures are therefore inappropriate.

UN Charter and the Right of Self-Defence

The UN Charter, vide its Article 2 (4) proscribes any threat or use of force against the political independence or territorial integrity of a state, but also authorises the inherent right of self-defence of every member state qualifies as an exception. Considering that the Indian Government has described the strike as a non-military pre-emptive action, it becomes important to understand self-defence in this context.

Even as the definition Article 51 of the UN Charter precludes the right of self-defence in absence of an armed attack, the International Court of Justice has been off-late inclined to dilute the requirement and widen the applicability of the defence against non-state actors that indulge in acts terrorism. This is observable and is held in in the opinion of Judge Simma in the Case Concerning Armed Activities on Territory on Congo, as well as the separate opinions in ICJ's ruling on Legal Consequences of the Construction of a Wall in the Occupied Palestine Territory.

Legality of Pakistan surgical strikes India has arsenal of lawful defences at its disposal conjecture is unnecessary

File image of Prime Minister Narendra Modi. PTI

Furthermore, India's stance is strengthened by Resolutions 1368 and 1373 of the United Nations which recognize acts of international terrorism as an actionable threat to international peace and security.

Pre-emptive Self-Defence: Protection in International Law

It has been a contentious issue before jurists whether the right to self-defence under Article 51 includes a pre-emptive action. However, what is worth considering is the fact that right to self-defence emanates not only from Article 51 of the Charter, but also from the principles of customary international law. In fact, it is considered to be an inherent right under Customary International Law, meaning that it is as important as the idea of the state itself and it will exist even without the UN Charter and its Article 51.

The Caroline Test, which emerged as a principle of customary international law after the Caroline affair holds unambiguously that the states are authorised to a pre-emptive right of self-defence conditioned on the fact that it must be instant, proportional and necessary. Since the Indian Government has maintained that the strikes have been carried out on the basis of credible intelligence it received about potential attacks by Jaish-e-Mohammad in the nearby future, the customary international law standards are fairly met.

There have been valid preemptive strikes in response to terror attacks in the past too. The US claimed to be acting in accordance with Article 51, when on 20th August, 1998 it launched cruise missile attacks inside Afghanistan and Sudan, in response to terrorist bombings on its embassies in Kenya and Tanzania.

It may also be noted that this was also a strike against a non-state actor and not against the state inside which the perpetrators were dwelling.

It is important here to mention the technicalities referred to in the statement by Foreign Secretary, wherein he has specifically mentioned that the strikes are preemptive in direct anticipation of another future suicide bombing. Therefore, the direct cause of India's air strikes, is an anticipated suicide bombing in future and not anything in the past. This has given a sound legal backing to India's actions under International Law.

Road Ahead for Pakistan

Basing its intendment to retaliate, Pakistan is now faced with the choice of either attacking India's military base(s) or its civilian settlements. Whereas the former would qualify as an act of war under International Law, the latter constitutes a graver wrongdoing against International Humanitarian Law. The recourse, if any, is therefore to raise the issue before UN which is unlikely to yield desirable results given the solidarity with which UNSC stands with India post the Pulawama terror attack as manifested in the UNSC statement. To conclude, maybe the only remedy for a state crippled with forces of fanaticism is to sit-back and introspect.

Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai and teaches Public International Law and Anuj Bansal is a first-year student of Post Graduate Programme at IIM Ahmedabad. 

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