Given the complexities of geopolitics, it is not unusual for one country to accuse another of sponsoring and using armed non-state actors. India and Pakistan have also accused each other of sponsoring cross-border terrorist activities. On September 9, for instance, Indian foreign secretary S. Jaishankar said that Pakistan cannot escape “responsibility” for the acts of non-state actors. Similarly, on September 8 at the 14th ASEAN-India Summit in Laos, Pakistan accused India of financing terrorist activities against it.
The recent terrorist attack in Uri on September 18 has revived the debate on Pakistan’s involvement in such activities. Since then, India has used different national and international platforms to assert its claim that Pakistan backed the attack. Although much has been said and written on this issue from the political, security and diplomatic standpoints, analysis through the prism of international law remain underexplored.
Under international law, the responsibility of a state has a very precise meaning. According to the International Law Commission (ILC) Articles on State Responsibility 2001, a state is considered responsible when two conditions are satisfied: (a) when an internationally wrongful act or omission is attributable to that state; and (b) when the said act or omission constitutes a breach of international obligations of that state. Therefore, to establish that Pakistan was responsible for the Uri attacks, these two conditions need to be met – the act committed by the terrorists should be attributable to Pakistan and must also constitute a breach of Pakistan’s obligations under international law.
It is well settled under international law that a state is responsible for the acts committed by its organs and agents. As a general rule, the state is not responsible for the acts of private actors, barring a few exceptions. One such exception is when private actors – terrorists in the case of the Uri attack – act as de facto agents of the state. Whether the private actor in question is a de facto agent of the state or not will depend on the ‘level of control’ exercised by that state over it. If the private actor is acting on the “instruction of” or “under the direction or control” of the state, the said actor will be considered a de facto agent and consequently, the acts committed by it will be attributable to the state that is “instructing”, “directing or controlling” it. In other words, international law requires a state’s control to be “effective” to establish attributability.
India has claimed that Pakistan exercises control over the terrorist groups that launch attacks against India. Exercising India’s right to reply during the general debate of the 71st session of the UN General Assembly on September 21, an Indian representative to the UN claimed that “[w]ith the approval of authorities terrorist organisations raise funds openly in flagrant violation of Pakistan’s international obligations.” Another Indian representative, speaking at the UN Human Rights Council on September 26, stated that Pakistan is involved in “training, financing and supporting terrorist groups.” On the same day, at the UN General Assembly India alleged that Pakistan “exports terrorists as a matter of state policy.”
Based on the allegations made by India, Pakistan may plausibly be held responsible for two different acts under international law, independent of each other – for the acts committed by terrorists in Uri, and for training, financing and supporting terrorist groups.
With regard to the first category – acts committed by terrorists in Uri – it should be noted that merely providing assistance to the terrorists need not establish that the acts committed are imputable to Pakistan. For fixing attributability, what needs to be established factually is that Pakistan either gave “specific instructions” or “directed or controlled” the alleged terrorist acts. It is for this reason that India is vehemently stressing the “effective control” exercised by the Pakistani state over terrorist groups.
As for training, financing and supporting terrorist groups, Pakistan may be held responsible only if this is established factually. Such responsibility will emanate from the violation of its international law obligations flowing inter alia from Articles 2(4) and 2(7) of the UN Charter, which deals with the prohibition on the use of force and obligation not to intervene in the affairs of other states respectively.
The statements made by India at the UNHRC, UN General Assembly and other platforms appear to be very particular and calculated on the question of identifying the level of control exercised by Pakistan over the terrorists. India seems to have had some foresight about the likely ramifications of its statements; if it is factually proved that Pakistan does have some control over terrorists, this would mean the country is responsible under international law. In such a case, any permissible retaliation initiated by India will be legally justified under international law, including the use of force as a matter of self-defence.
Haris Jamil is a research scholar working in the field of International Law at South Asian University. Anmolam is an LLM candidate at South Asian University.