On September 29, India said it had conducted surgical strikes across the Line of Control (LoC) to prevent terrorists from infiltrating its territory. At the joint briefing by the foreign ministry and the defence ministry, it was emphasised that the “operations were basically focused to ensure that these terrorists do not succeed in their design of infiltration…”. Meanwhile, Pakistan denied that such attacks occurred. As this case involves two states and the use of some form of force by one state on territory effectively controlled by the other state – and both sides can possibly claim violations by the other and there is also the possibility of similar incidents in the future – the situation needs to be evaluated in accordance with international law.
Use of force in international law
To begin with, the relevant international law in this regard is the UN Charter. Article 2(4) of the UN Charter provides that “[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State…”. The essence of this provision is that the use of force between states is prohibited. However, this prohibition has two exceptions that allow states to employ force. The first exception is the use of force with authorisation from the UN Security Council (UNSC) under Chapter VII of the charter. The other exception is the use of force to exercise the right to self-defence under Article 51 of the charter. Another possibility is also that a state can use force against the territory of another state by the latter’s invitation. However, besides these, using force on any other grounds amounts to a violation of Article 2(4) of the UN Charter.
Right of self-defence
India’s surgical strikes need to be evaluated in light of these legal possibilities. The surgical strikes were not authorised by the UNSC, nor were they were conducted on Pakistan’s invitation. Thus the only legal possibility left is India’s right of self-defence.
Article 51 of the UN Charter provides,
“[n]othing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council…”
It is this particular provision that has been under strain since 9/11. In almost every major conflict situation that has arisen since then – Afghanistan, the Iraq war, the current situation in Syria and using force against ISIS – states have used this provision to explain the conflict. Several elements constitute Article 51 – it underlines that states have the right of individual and collective self-defence if an armed attack actually takes place against a member of the UN. The article further says that measures taken by states should be reported to the UNSC.
Right of self-defence against non-state actors
In addition to these requirements, the other most important aspect to consider is whether the right of self-defence can be evoked only in the case of an armed attack by another state or if it is available even when a non-state actor launches an armed attack from the territory of another state.
Article 51 does not specifically say that the armed attack should be undertaken by states alone. However, the structure of the UN Charter in general, and understanding of the use of force in particular, implies that it is considered an interstate affair under the charter. Nevertheless, some international lawyers and states are of the view that the right of self-defence does extend to armed attacks carried out by non-state actors.
This view has been strengthened by two UNSC resolutions adopted after 9/11. Resolutions 1368 and 1373 recognise the right of individual and collective self-defence in accordance with the UN charter. However, two opinions rendered by the International Court of Justice in the Construction of a Wall (advisory opinion) and in the Armed Activities (judgment), held the view that armed activities by non-state actors should be attributed to the states when it comes to the attacked state exercising its right of self-defence. Therefore, it is difficult to accept the view that right of self-defence in response to attacks by non-state actors has emerged as a principle of customary international law outside and independent of the UN Charter framework on the right of self-defence.
The ‘unable and unwilling’ test
While the arguments for exercising the general right of self-defence against non-state actors lack legal justification, there is a different justification emerging within the confines of Article 51 in the form of ‘inability and unwillingness’. It posits that when a non-state actor conducts activities against a state while based in another state’s territory, the attacked state has the right to use defensive force against the non-state actor’s host state if the latter is unable and unwilling to control the activities of the non-state actor in its territory.
This argument is strongly put forward in the context of attacks undertaken by the US and its allies on ISIS in Syrian territory. It has been argued that the US and its allies are attacking ISIS in Syrian territory at the request of Iraq, which is the target of ISIS. Thus the arguments for the right of self-defence against the non-state actors operating from the territory of another state moved from a general justification under Article 51 to a narrow interpretation of the article within the ‘unable and unwilling’ test. However, none of these arguments can be affirmatively understood to have become customary international law.
India’s surgical strikes
Some have argued the India can justify its surgical strikes as preemptive or preventive self-defence. However, the Indian government’s justifications don’t seem to fit within the framework of the UN charter or international law. While India has not provided any definitive proof to show that an armed attack actually took place, Pakistan insists that it never happened. Additionally, India does not seem to have reported the matter to the UNSC.
Both countries seem to imply the fact that it did not amount to use of force under international law as they seem to be aware of the implications of such assertions. The important implication here is that any use of force under international law effectively amounts to armed conflict or war between two states in a legal sense. This imposes responsibility on India to justify its actions in accordance with the UN Charter. Such a justification would involve several legal challenges such as the ones explained above.
The armed conflict situation also brings up a specific set of rights and obligations for both states. Thus, India seems to have made a conscious choice to emphasise that the “operations aimed at neutralising the terrorists have since ceased” and that Indian forces “do not have any plans for continuation of further operations”. Hence, under international and domestic law, the surgical strikes should be seen as measures undertaken to prevent illegal movement across the border, which, had it taken place, would have invited measures listed under criminal law. Such actions should only be undertaken in consultation with Pakistan. India may cooperate with Pakistan along with pursuing diplomatic engagement to effectively prevent such illegal movements. Thus any loss of life in such attacks should be justified in accordance with the right of self-defence under the criminal law framework, which differs from the same right as listed under general international law.
Terrorism as a state policy a war crime?
During a general debate at the 71st session of the UN General Assembly on September 21, the Indian representative stated that the “worst violation of human rights is terrorism. When practiced as an instrument of state policy it is a war crime.” He further stated that India and its neighbouring countries are currently experiencing the fallout from Pakistan’s long-standing policy of sponsoring terrorism. The Indian representative clearly wanted to underline the fact that Pakistan is committing war crimes. Under international law, war crimes can only be committed during war, defined as armed conflict whether international or non-international in character. Does this mean that Pakistan is at war with India and other countries in the region? This is a difficult claim to make based on the facts on the ground. Further, under international law, war crimes can only be committed by individuals and not by states. There is no ‘state criminality’ under international law and only individual criminal responsibility exists. Therefore, to qualify “terrorism’ as a state policy” as a war crime does not stand the test of law.
Srinivas Burra is an assistant professor in the Faculty of Legal Studies at South Asian University.