The Balakot Strikes: Analysing India’s “Non-Military Preemptive Action”

[Dhruv Sharma is an LLM Candidate and a Chevening Cambridge Trust Scholar at the University of Cambridge. He is an alumnus of the National Law University, Delhi. Utkarsh Srivastava is an Advocate practising in the Courts and Tribunals in India. He is an alumnus of the National Law University, Delhi.]

Prologue

On 14 February 2019, a dastardly terrorist attack was carried out on India’s security personnel, in the Pulwama district of Kashmir. The Jaish-e-Mohammed (JeM), a United Nations (UN) designated terrorist organization, claimed responsibility for the attack. The Pulwama attack is the latest in a long list of attacks, attempted or executed, by the same terrorist outfit against Indian soldiers and civilians in Kashmir and elsewhere.

The Act

On the morning of 26 February 2019, the Foreign Secretary, Ministry of External Affairs, Government of India issued a statement claiming that a “non-military preemptive action” (sic) was undertaken by the Indian Air Force against a military camp of the JeM located in Balakot, Pakistan.

India’s actions have infused life into several debates relating to jus ad bellum as well as jus in bello, especially with respect to South Asia and non-state actors (NSAs), which hitherto were merely academic in nature. This post seeks to analyse India’s official statement, released shortly after the strikes on the JeM camp in Balakot, and tackles two broad points of discussion arising from the wording of the official statement – firstly, the concept and relevance of the terminology “non-military preemptive action” employed by India in its official statement and; secondly, a state’s right of self-defence against non-state actors, operating out of the territory of another state, and India’s legal position on the same.

Non-military Action

The use of the term “non-military”, in India’s official statement deserves some attention. We believe that such terminology seeks to serve three purposes:

Firstly, it seeks to clarify that the target of the attacks was an NSA, and not the military or the civilian population of Pakistan. This clarification manifests India’s position that the air strikes sought to simply destroy the terror camps of JeM, without delving into questions of attribution and state responsibility of Pakistan for the acts of the NSA operating from within its territory.

Secondly, the terminology seeks to pre-empt and counter any arguments on the initiation of an international armed conflict between India and Pakistan through the argument that there was no engagement between the armed forces (or militaries) of the two States.

Finally, irrespective of the initiation of an international armed conflict, declaring the specificity of the attack in the official statement (“this non-military preemptive action was specifically targeted at the JeM camp”), and focusing on avoiding civilian casualties tries to reflect India’s compliance with the Geneva Conventions, specifically the principle of discrimination.

The phrase immediately succeeding “non-military” i.e. “preemptive action”, however, raises issues of its own.

Pre-emptive Action

The genus of the inherent right of self-defence under Article 51 is not devoid of its own species. There are three possible scenarios in which the right of self-defence may get triggered. These scenarios may be understood in the form of a continuum. On the restrictive end, is the literal understanding of Article 51 which relies upon the phrasing “…if an armed attack occurs…”, and triggers a State’s right of self-defence only after an ‘armed attack’ has already been carried out against it. This restricts self-defence to merely a reactive right.

In the middle lies the concept of ‘anticipatory self-defence’ which states that the right is not just reactionary in nature, but also exists in the face of palpable and imminent danger. On the other end of the continuum is the right of ‘preventive self-defence’, which may even be invoked to prevent vague future attacks. There exists a crucial line of distinction between the two concepts. While anticipatory self-defence recognises the existence of the right in the face of a manifestly specific and imminent attack. The concept of preventive self-defence does not seek to rely on any concrete threat of an armed attack, and operates in the realm of contingency and conjecture (eg. Japan’s attack on Pearl Harbour). It is beyond debate that reactionary self-defence or self-defence simpliciter has a firm grounding in international law. The right of ‘anticipatory self-defence’ has also, over time, received recognition to some extent. However, ‘preventive self-defence’ has found few supporters.

Interestingly, the phrase ‘pre-emptive self-defence’ has also been employed by multiple States and publicists. The phrase has seen inconsistent application through synonymous and interchangeable usage with both ‘anticipatory’ (Brownlie’s Principles of Public International Law, ed. James Crawford, p. 750-752) as well as ‘preventive’ self-defence (here). Such non-uniform use of ‘pre-emptive self-defence’ by international actors (also documented on this blog), further complicates an already complex understanding of self-defence.

India’s official statement mentions that the “preemptive” strikes were undertaken “in the face of imminent danger”, which was based on credible intelligence that the JeM was planning another terror attack against the country. It is argued that the usage of the phrase “preemptive strikes” hovers between two variations of the right of self-defence – anticipatory and preventive. Such phraseology seems to conflate the right of ‘anticipatory self-defence’ with the arguably unrecognised ‘preventive right of self-defence’, and begets ambiguity regarding India’s official legal stance on the Balakot strikes.

Furthermore, solely relying on the phrase “imminent danger”, in the absence of any concrete evidence of the imminent threat, not only leaves the lawfulness/legality of the air strikes in doubt, but also fails to clear the confusion highlighted in the previous paragraph.

But what if India had dropped the “preemptive action” stance, and relied upon its right of self-defence simpliciter? The next section argues that India could have relied upon the plain text of Article 51 and its accepted interpretation to justify its actions as an exercise of the right of self-defence, without delving into the complicated realm of its sub-categories.

Self-Defence Against JeM

As discussed above, Article 51 of the UN Charter recognises the inherent right of self-defence of States against an armed attack under international law. Whether the right of self-defence exists against NSAs and what constitutes an armed attack justifying the exercise of the same shall now be analysed in light of India’s official statement.

Non-State Actors

The right of self-defence recognized in the UN Charter does not clarify whether the same can be exercised against non-state actors. While the ICJ has maintained its distance from making a concrete finding on the same, the Security Council (SC), through Resolutions 1368 (2001) and 1373 (2001), in relation to the 9/11 terror attacks, implicitly identified the right of self-defence against the Al-Qaeda, an NSA functioning out of Afghanistan. Furthermore, the right of self-defence against an NSA, by means of cross-border use of force, has received international acceptance (specifically, USA, Israel, Russia, Turkey) in the event that the host State is unwilling or unable to effectively deal with the threat posed by the NSA. India also seems to have relied on this justification by seeking to establish the unwillingness or inability on the part of Pakistan in taking action against the JeM despite the sharing of location intelligence on JeM terror camps, and urging Pakistan to take action against the JeM. The support (here and here) for India’s right to self-defence after the Pulwama attack, and the absence of any condemnation by other states as well as the UN subsequent to the Balakot air strike suggests the recognition of the right of self-defence against NSAs.

Armed Attack

An armed attack is not defined under the UN Charter, customary law or any other treaty provision (Nicaragua, §176). Even the International Court of Justice has refrained from clarifying the threshold of an armed attack and maintained that the same is flexible and context dependent (Oil Platforms, §72). As per the Nicaragua decision of the ICJ, an ‘armed attack’ is the gravest form of the use of force under customary law, and therefore an attack requires to fulfil an unspecified threshold of intensity to qualify as an ‘armed attack’. A reading of Oil Platforms suggests that the same understanding has also come to be applied to ‘armed attack’ as understood under Article 51 (The Development of International Law by the International Court of Justice, ed. Christian Tams & James Sloan, p. 253). In this light, whether JeM’s actions do amount to an ‘armed attack’ on India is discussed hereafter.

The first two paragraphs of the Indian official statement released after the air strikes in Balakot specifically mention the Pulwama terror attack and the continuing nature of such attacks carried out by the JeM over the past two decades. Specific reference was made to the attack on the Indian Parliament in 2001 and the attack on the Pathankot airbase in 2016. The attack on an Army camp in Uri in the year 2016, though not mentioned in India’s official statement, may also be added to the long list of JeM’s deadly attacks on Indian security personnel. India’s iteration of the above reflects its reliance on two legal doctrines. Firstly, that the threshold of an ‘armed attack’ is context dependent, and secondly that a series of attacks overtime can aggregate as armed attacks (‘accumulation of events’ doctrine).

The reference to the Pulwama attack, coupled with the observation that similar attacks were imminent, may reflect India’s attempt to rely on the observation of the ICJ in the Oil Platforms case that a singular massive act, such as the blowing of a vessel, may give rise to a right of self-defence. This reliance assists in using as well as contributing to the growing jurisprudence that an armed attack does not imply a full-scale war and the threshold for the same may be met through one-off major acts.

More important, however, is the reliance on the ‘accumulation of events’ doctrine by India. The reiteration of previous deadly attacks conducted by the JeM, and intelligence reports on further attacks being planned seeks to employ the approach that a series of attacks may cumulate to reach the threshold of an armed attack. This approach, while initially only advanced by Israel, has more recently been relied upon by the USA and the UK as well as taken into consideration by the ICJ in Oil Platforms (“even taken cumulatively … these incidents do not seem to the Court to constitute an armed attack on the United States”) and has therefore been understood by publicists to reflect a development in the understanding of Article 51 to harmonise the same with the language of Article 2(4). While India does not discount the possibility that the Pulwama attack was per se of sufficient scale and gravity to amount to an ‘armed attack’, it relies on the accumulation of a series of attacks, such as the ones carried out in Pathankot, Uri and the latest one in Pulwama, by the JeM, to further buttress its case that the JeM conducted an armed attack on India, against which India had the right of self-defence.

Conclusion

In this light, the adequacy and appropriateness of India’s stated legal position on the Balakot air strikes is somewhat debatable. The use of the phrase “non-military” is an innovative wordplay highlighting India’s focus on the JeM while staying clear off any questions of State attribution and responsibility, and to also avoid escalation by denying the initiation of an armed conflict. However, both anticipatory and preventive self-defence do not enjoy the strongest of foundations under international law, and a position based upon a mixture of the two concepts through the usage of the phrase “preemptive action” does not make the most convincing legal argument. As discussed above, we argue that reliance on self-defence simpliciter i.e. the plain text of Article 51 was possible in the present case and might have required India to discharge a lighter burden, allowing it to fly through and strike down any potential opposition to its counter-terrorist actions.