External Affairs

What International Law Tells Us About India’s Recent Pre-emptive Strike

The Indian Army’s recent operations against militant camps in Myanmar are not the first of their kind in the world or even in the region. Amidst the ongoing debate over the potential shift in India’s military strategy this represents, and the questions surrounding the operation’s extraterritoriality, there has been little discussion on the status and regulation of such armed operations under international law.

The United Nations Charter authorises one state to use force in another state’s territory only in self-defence or with the approval of the UN Security Council. In addition to self-defence, the International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts permit the extraterritorial use of force by a state if it is executed under certain circumstances, such as (1) with the other state’s consent, (2) out of distress, (3) out of necessity, (4) as a countermeasure, or (5) in response to situations which are beyond the state’s reasonable control (force majeure).

Given the element of subjectivity, it is hardly surprising that almost every instance of  the use of force generates debate and there is often little consensus among various international stakeholders. Traditionally, these debates have been the sharpest  when the target consists of non-state armed groups, as in this case. However, in light of state practice and certain Security Council resolutions – particularly the ones adopted in response to the 9/11 attacks – the use of force against militant groups in self-defence is increasingly considered an accepted norm. But that doesn’t mean conditions don’t apply.

The Caroline test

The 1837 Caroline Case concerned an attack carried out by a British force against Canadian rebels on United States’ territory. The British had destroyed a US owned ship named the Caroline, which had been supplying armed insurgents with materiél against British rule in Canada. The Anglo-American settlement in the case created two standards that must be met in order to justify such an attack.

First, the use of force must be necessary because of both the imminent nature of the threat and the absence of peaceful alternatives; and second, the response to the threat must be proportionate. These principles have since evolved as the doctrines of necessity and proportionality, and have been subjected to varying interpretations over the course of time.

Daniel Webster, who was the US Secretary of State at the time, described ‘imminent threat’ as being instant, overwhelming, and leaving no choice of means and no moment for deliberation. The case is relevant today in more ways than one. Judge Christopher Greenwood at the International Court of Justice (ICJ) wrote in 2003 that the threat in Caroline “came from a non-State group of the kind most would probably call terrorist today.” The modern day concept of a pre-emptive strike is based on the Caroline test.

Threat of ‘imminent attack’

Indeed, in UN Security Council debates, arguments against the pre-emptive use of force hinge less on the doctrine itself and more on whether the Caroline test’s requirements have been met, especially the notion of an imminent attack and whether the use of force occasioned by this apprehension was proportionate to the threat posed.

Interestingly, the Indian Army’s official statement issued after its operations “along the Indo-Myanmar border” says that these were conducted as an immediate and necessary response to the imminent threat of planned assaults. It further states that the operations consequently averted “threats to our civilian population and security forces” by certain groups, which had in the preceding week attacked Indian security personnel.

One of the fiercest debates over pre-emptive strikes arose from the US justification for invading Iraq. in 2003 In essence, the US stance was that the doctrine of necessity needed adaptation in light of advanced weapons capabilities – a position that creates a dangerous slippery slope. Relaxing the requirement of an imminent attack raises a essential question – given the destructiveness of modern military technology and the speed at which it can be deployed, at what point of the anticipated threat is a pre-emptive strike justified? At what stage or under what circumstances can a state invoke the argument of using force in its self-defence?

Israel, for example, asserts that it has the right to attack Iran because it is allegedly aspiring to develop or acquire nuclear weapons, which can potentially threaten Israeli security. But many countries, including those that share its concerns about Tehran, would disagree.

With technological advances including drones and cyber technology beginning to take centre-stage in military operations, and non-state actors becoming frequent targets of military action, the boundaries of the modern day battlefield have dramatically changed. It thus becomes increasingly difficult for the law to keep up. Lawyers must continually scramble to interpret existing law to regulate the changing scenarios. These only add to the challenges in establishing consensus on the principles that might answer the whens, wheres, whats, whys, and whos of pre-emptive armed attacks.

International law doesn’t always provide concrete answers and when it does attempt to do so, not many approve. But it is essential that it must attempt to address global issues by constantly evolving from lex lata ­ – law as it is to lex ferenda­ – law as it ought to be. As information continues to trickle in about the Indian Army’s actions in Myanmar, these are some important questions to consider.

Shalini Iyengar is a lawyer and Research Associate at the International University College, Turin
Sukrit Rajesh Kapoor is a lawyer and International Advocacy Consultant at the Commonwealth Human Rights Initiative