Legal Implications of the Recent India-Pakistan Military Standoff

[Srinivas Burra is an Assistant Professor at the Faculty of Legal Studies, South Asian University, New Delhi.] 

Recent military strikes between India and Pakistan merit analysis to assess their legality under international law. As discussed (here and here), they have relevance to the discussions on the legality of the use of force, particularly in relation to the emerging debates on the right of self-defence. This post deals with two issues. Firstly, it attempts to establish that India’s official position and statements show that it has not invoked the right of self-defence in the form of attributability of non-state actor’s activities to the State. Further, it argues that India’s practice in this incident as well as in the past goes against the applicability of ‘unwilling or unable’ test for the purpose of invoking Article 51 in the context of use of force against non-state actors. India may wish to view its aerial strikes on 26 February 2019 near Balakot in Pakistan as not falling under international law governing the use of force. However, in the absence of any other legal justification, its aerial attacks would attract Article 2(4) of the United Nations Charter. Secondly, it attempts to demonstrate that the military activities between India and Pakistan involved an international armed conflict regardless of the accusations of aggression from both sides. It further underlines that the conflict seemingly got deescalated with the invocation of jus in bello and the return of a prisoner of war.

On 14 February 2019, more than 40 Central Reserve Police Force (CRPF) personnel were killed in a suicide bomb in Pulwama of Jammu and Kashmir in India. Pakistani based Jaish-e-Mohammed (JeM) reportedly claimed responsibility. This led to an escalated military situation between India and Pakistan. On 26 February 2019, India claimed that Indian Air Force (IAF) aircraft went into Pakistan and targeted a JeM training camp near Balakot in Pakistan. The Foreign Secretary of India in a statement informed that ‘India struck the biggest training camp of JeM in Balakot. In this operation, a very large number of JeM terrorists, trainers, senior commanders and groups of jihadis who were being trained for fidayeen action were eliminated.’ As the incident directly involves the use of military force by one state against the other, any attempt to evaluate the incident and the developments that followed entails the analysis of applicable international law, mainly jus ad bellum. India’s Foreign Secretary’s statement does not refer to any international law provision. However, it says,

“Credible intelligence was received that JeM was attempting another suicide terror attack in various parts of the country, and the fidayeen jihadis were being trained for this purpose. In the face of imminent danger, a preemptive strike became absolutely necessary”.

With all their legal uncertainty, the words ‘imminent danger’ and ‘preemptive strike’ would suggest towards the right of self-defense under Article 51 of the United Nations Charter. India seemed to stop short of suggesting that. It must have been because if the target is a non-state actor, in this case, JeM, it becomes necessary for India to attribute its actions to the State, in this case, Pakistan. While there is a general feeling among the Indian establishment that some level of State support, arguably, exists in the case of JeM, it would have been difficult for India to establish the same with sufficient evidence. This occasion would have necessitated them to make that assertion had they had sufficient evidence to establish that relationship between Pakistani State and the non-state actor and the level of control the former exercises over the latter, which is required under the jus ad bellum. Instead, India’s Foreign Secretary’s statement says, “Hence this non-military preemptive action was specifically targeted at the JeM camp.” The prefix of the ‘non-military’ to the ‘preemptive’ conveys that the attack was only targeted at the non-state actor on Pakistani territory and thus did not violate Pakistan’s territorial sovereignty or political independence.

Despite India’s position, the distinction between the attack on the State and the attack on the non-state actor does not absolve the attacking State from the UN Charter framework on the use of force. The International Law Association rightly observes that “using force within the territory of another state-even if the forcible measures are limited to strikes against  a non-state actor-must be considered as within the notion of force as it exists in Article 2(4) of the Charter.”(International Law Association report on Use of Force (2018) p. 16). Although there is no reference to ‘State’ in relation to the armed attack, the language of Article 51 in particular and the purposes of the UN Charter in general do not provide the possibility of justification for the right of self-defence against the attacks of the non-state actors unless they are attributable to the State. As a departure from this understanding, there has been an emerging argument that even if a non-state actor’s actions are not attributable to the host State, the victim State can exercise the right of self-defence. It is argued that for this to happen, it should be established that the host State is ‘unwilling or unable’ to deal with the activities of the non-state actor on its territory. (ILA report, pp. 14-15).

As discussed above, India claimed that it used its Air Force to attack the JeM, a non-state actor on Pakistani territory, and the attack was confirmed by Pakistan. India’s statement also says, “Information regarding the location of training camps in Pakistan and PoJK has been provided to Pakistan from time to time. Pakistan, however, denies their existence. The existence of such massive training facilities capable of training hundreds of jihadis could not have functioned without the knowledge of Pakistan authorities.” India clearly emphasizes the unwillingness of Pakistan in dealing with the activities of the JeM, as this statement indicates. Going by India’s description of the situation, this would have been a textbook case for the proponents of the ‘unwilling or unable’ test. However, India did not rely on ‘unwilling or unable’ test to justify its attack as self-defence. This unwillingness to use this test gains importance in the light of the fact that India was informed of its right of self-defence after the Pulwama suicide bombing by none other than the United States, which is in the forefront, along with a few other States, in invoking the test. On 15 February 2019, there was a telephonic conversation between India’s National Security Advisor Ajit Doval and United States’ National Security Advisor Amb. John Bolton. Readout of the telephonic conversation says, “Ambassador Bolton supported India’s right to self-defence against cross-border terrorism. He offered all assistance to India to bring the perpetrators and backers of the attack promptly to justice. NSA Doval appreciated U.S. support.” It reinforces the view that India was well aware of this arguably emerging legal position on the right of self-defence, but refused to subscribe to it. India did this at the risk of being accused of committing an act of aggression, as Pakistan promptly responded when its “Acting Foreign Secretary categorically stated that Indian aggression was a threat to regional peace and stability and would get a befitting response by Pakistan at a time and place of its choosing.”

India’s unwillingness to subscribe to the ‘unwilling or unable’ test can be further substantiated by its past practice as well. India conducted similar strikes in the past. On 29 September 2016, it conducted strikes to prevent infiltration from across the Line of Control (LoC) between India and Pakistan. India said, “The operations were basically focused to ensure that these terrorists do not succeed in their design of infiltration and carrying out destruction and endangering the lives of citizens of our country.” India claimed these as ‘surgical strikes’. India’s statement also mentioned that “The operations aimed at neutralizing the terrorists have since ceased” and Pakistan was informed of strikes. After the surgical strikes there were views in India justifying the action under the right of self-defence. However, the official categorization by India remains as surgical strike. This is similar to what happened in the recent military activities. In both these situations India refrained from invoking the ‘unwilling or unable’ test despite its use by some other countries. This shows that India’s practice until now does not explicitly subscribe to the ‘unwilling or unable’ test in the context of non-state actors’ activities from the host State against another State. As pointed out by Alonso Gurmendi (here, here and here), several other countries’ state practice do not subscribe to this test either in the past or in contemporary conflict situations. Whether India would continue to refrain from accepting the ‘unwilling or unable’ test would depend on future circumstances. However, the recent military exchange with Pakistan and its 2016 surgical strikes fairly establish its reluctance to accept the ‘unwilling or unable’ test.

The second issue is how to characterize the nature of military activities in the light of developments that followed the aerial strike by the Indian Air Force on 26 February 2019. Had there not been any action from both sides after the aerial strike of 26 February 2019 by India, it would have been considered as similar to the surgical strikes of 29 September 2016.

The conflict took an important turn on 27 February 2019 when military intervention took place from both sides. Pakistan announced that its

Air Force undertook strikes across Line of Control from within Pakistani airspace. This was not a retaliation to continued Indian belligerence. Pakistan has therefore, taken strikes at non military target, avoiding human loss and collateral damage. Sole purpose being to demonstrate our right, will and capability for self defence.

The previous day, Pakistan condemned India’s aerial strike as aggression and promised a reply. Pakistan’s 27 February 2019 statement did not explicitly refer to 26 February 2019 Indian aerial strikes. However, it underlined its right of self-defence, apparently against India’s aerial strikes of 26 February 2019. India in its statement on 27 February 2019 referred to its 26 February 2019 aerial attacks as ‘counter terrorism action’ and not as ‘non-military preemptive action’, as it emphasized after the 26 February aerial attacks. The Indian statement further stated “Pakistan has responded this morning by using its Air Force to target military installations on the Indian side. Due to our high state of readiness and alertness, Pakistan’s attempts were foiled successfully.” The statement further underlined that one Pakistan Air Force fighter aircraft was shot down and India also lost one MiG 21 with its pilot missing in action. The Indian statement also mentioned that Pakistan claimed that the missing pilot was in their custody.

The use of military force on 27 February 2019 by Pakistan and India significantly changed the nature of the situation. On the 27 afternoon itself, India demarched Pakistan. The press release stated that the Ministry of External Affairs of India lodged “a strong protest at the unprovoked act of aggression by Pakistan against India earlier today, including by violation of the Indian air space by Pakistan Air Force and targeting of Indian military posts.” India further said “This is in contrast to the India’s non-military anti-terror pre-emptive strike at a JeM terrorist camp in Balakot on 26 February 2019.” Here India referred to 26 February 2019 Balakot attack again as ‘non-military anti-terror preemptive strike’ and not as ‘counter terrorism action’.

A few conclusions may be drawn on the nature of conflict from the statements and positions taken by both sides. India seems to consider its 26 February 2019 aerial strikes at Balakot as non-military and thus do not attract the legal framework on the use of force, i.e., UN Charter provisions. They may be considered as law and order measures undertaken on the territory of another State. However, this requires further clarification from India for the purpose of placing it in a legal context, because this position is unusual from the standpoint of international law. India has not clearly invoked the right of self-defence either in the form of attributability of non-state actor’s actions to the State or in the form of controversial ‘unwilling or unable’ test. In the absence of any other legal justification, India’s aerial strikes on 26 February 2019 would amount to the violation of article 2 (4) of the UN Charter. Same can be argued, in retrospect, in the case of surgical strikes of 2016. India may wish to see the deployment of its Air Force on 27 February 2019 as only to counter Pakistan’s act of aggression. India has not invoked the right of self-defence in this regard either. Pakistan takes a fairly clear legal position. It argues that aerial attacks of 26 February 2019 at Balakot by India would amount to an act of aggression; therefore, it responded with its Air Force on 27 February 2019 to demonstrate its right of self-defence. Involvement of armed forces from both sides and the invocation of jus in bello for the purpose of treating the captured pilot as a prisoner of war established the existence of armed conflict between India and Pakistan.

It is essential to have a conclusive legal position on the nature of any military activities keeping in view the international peace and security. However, in this case, both the States may prefer to maintain the legal uncertainty for external as well as for internal reasons. Meanwhile, captured Indian Air force pilot was returned to India on 1 March 2019. This can be seen as the sign of de-escalation of the tense military situation.