29 Jun Is the China-India Violent Face-off Just a Bilateral Issue?
[Srinivas Burra is an Assistant Professor in the Faculty of Legal Studies at South Asian University, New Delhi; Haris Jamil is an Assistant Professor in the Faculty of Law at University of Delhi, New Delhi.]
On 15 June 2020, there was a violent face-off in the Galwan valley, in the western sector of the China-India border. Soldiers from China and India scuffled at the border, which led to the killing of 20 Indian soldiers, and several got injured. Media reported that the Chinese side also suffered several casualties. However, China confirmed one. The violent face-off reportedly took place at the Line of Actual Control (LAC) in the Galwan valley. Both sides claim that the other side violated the LAC. India claims that ‘violence in Galwan on 15 June arose because Chinese side was seeking to erect structures just across the LAC and refused to desist from such actions.’ China claims that ‘India’s front-line troops, … crossed the Line of Actual Control for deliberate provocation when the situation in the Galwan valley was already easing, and even violently attacked the Chinese officers and soldiers …, thus triggering fierce physical conflicts and causing casualties.’ Reports inform that no shots were fired and the scuffle involved rocks and spiked rods. It sounds primitive that the death of twenty Indian soldiers and reported causalities on the Chinese side took place with rocks and spiked rods. However, India clarified that firearms were not used as per the provisions of two bilateral agreements signed in 1996 and 2005. After the 15 June violent face-off the Indian Army has changed rules of engagement along the LAC with China, empowering field commanders to sanction the use of firearms. The 15 June incident was preceded by tensions at several places at the border between the two countries for more than a month.
Interestingly, both sides have not pointed out specific violations of international law obligations by the other side. However, India stated that they are ‘strongly committed to ensuring India’s sovereignty and territorial integrity.’ Similarly, China alleged that India ‘breached the basic norms governing international relations.’ Despite the obscurity of the factual situation, what can be discerned from the reports and the statements is that the incidents involved the use of force leading to the death and/or injury of soldiers from both sides. However, they have so far not alleged acts of aggression or invoked the right of self defence or made any reference to the United Nations Charter in general.
Was there the use of force?
It may be that China and India want to maintain that the matter is bilateral and therefore wish to keep it away from any multilateral engagement. Matters relating to borders between States are predominantly bilateral in nature. However, what is involved here is the military use of force across the border of two States and the resulting death and/or injuries on both sides. Consequently, the legal issues that arise at a preliminary level are the questions of jus ad bellum and jus in bello. Jus ad bellum involves the evaluation of the relevant provisions of the UN Charter framework on the use of force. The relevant provisions are articles 2(4) and 51. Article 2(4) says that: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, ….’ It is necessary to see whether the incidents of 15 June would amount to the threat or use of force.
While the understanding of article 2(4) involves several complex issues, the least controversial among all is that it prohibits the use of military force as a means of coercion. In the present case, despite the non-use of firearms because of the bilateral understanding, both sides resorted to the use of force with rocks and spiked rods to cause the death and injuries of soldiers. This amounts to the military use of force in the sense of article 2(4) of the UN Charter as it includes within its scope a situation of ‘any forcible measure’ or armed confrontation between states even if small-scale. It is also viewed that ‘a state’s enforcement of its territorial rights against an illegal incursion cannot be simply excluded’ from the purview of article 2(4).
The next important issue for the purpose of article 2(4) is the use of force against the territorial integrity and political independence. There have been long-standing disputes between China and India on the border territories. These disputes involve the Western and Eastern sectors. India claims that China is in the occupation of 38,000 sq km in Aksai Chin. Similarly, in the Eastern sector, China claims as much as 90,000 sq km. Despite these claims, both sides have agreed that ‘[p]ending an ultimate solution to the boundary question between the two countries, the two sides shall strictly respect and observe the line of actual control between the two sides.’ However, it is important to note that the LAC has never been demarcated. Thus, despite the mutual understanding on the LAC, differences emerge on the overlapping claims at several points. For article 2(4), determining the territorial integrity may pose challenges as territorial dispute exists on the status of some parts of the territory under the control of both sides. However, LAC can be considered as the de facto territorial division and control of both States as they also appear to agree on it. Accordingly, the territorial sovereignty claims of both sides revolve around the LAC. In relation to the present conflict, China claims sovereignty over the entire Galwan valley, which includes the site of violent face-off on 15 June. India considers these claims as exaggerated and untenable. Contextualizing article 2(4) and the incidents of 15 June in the backdrop of these territorial and LAC claims would theoretically involve contending arguments of violations of article 2(4) and justifications under article 51 of the UN Charter.
Can the use of force be a bilateral issue?
As stated above, the 15 June violent face-off between China and India and consequent deaths and/or injuries to the soldiers on both sides would unambiguously constitute the use of force and attract the UN Charter provisions. Contrary to this legal position, both sides have so far remained silent on invoking the UN Charter provisions and also on reporting the incident to the UN Security Council. In Nicaragua judgment (1986), ICJ held that the absence of reporting a situation might be a factor ‘indicating whether the State in question was itself convinced that it was acting in self-defence.’ Moreover, to avoid any responsibility in relation to the violation of article 2(4) and to rely on the justification of self-defence, the tendency among States is to ‘over-report’. The absence of reporting by both China and India shows their inclination towards handling the situation bilaterally or rather, to avoid internationalizing it.
This raises the question of whether the use of force can be restricted to bilateral discussions without engaging in the evaluation of the same under international law framework, particularly the UN Charter. In the instances of the use of force by States, they often tend to justify their conduct by invoking article 51 of the UN Charter. In this case, that has not yet happened. If so, does the UN Charter provide the possibility for resolving the matter relating to the use of force bilaterally, without the involvement of the UN mechanisms? A plain reading of the Charter provisions does not appear to suggest that. An apparent logical coherence is established in the Charter between the prohibition of the use of force and the two exceptions to it, i.e., self-defence and UNSC authorization under Chapter VII. The Charter renders the use of force as a concern to the international community of States. UNSC, as an institutional mechanism, is accorded a critical role in this scheme. The multilateral character of every instance of the use of force and the primary role of the UNSC in that regard is embedded in the Charter. Therefore, article 24 notes that the member states ‘confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.’ UNSC is under an obligation to act in accordance with the purposes and principles of the Charter, prohibition on the use of force being one of the principles. Therefore, it is expected that the States involved in the use of force report to the UNSC as soon as possible. Any other member state may also write to the UNSC in relation to such incidents. Moreover, the non-reporting of a situation by the disputing States does not restrain the UNSC from taking cognizance. For instance, at the time of the erstwhile Soviet Union and Afghanistan issue, neither State reported the situation to the UNSC. At the 2187th meeting of the UNSC on 6 January 1980, the US representative said: ‘That neither the Soviet Union nor … Afghanistan has given the required notice to the Security Council under Article 51 is itself evidence of the hollowness of the Soviet Union’s refuge in the Charter.’ Liberia pointed out that non-reporting and the rejection of the application of article 51 to the situation by both USSR and Afghanistan implies violation of the UN Charter. In the context of the present dispute, it is imperative to analyze the 15 June incident from this perspective. If the conduct of China or India does not fall under article 51, it is a violation of article 2(4) entailing state responsibility.
China, as a permanent member and India as a newly elected non-permanent member, should recognize the legally established role of the UNSC as a multilateral institution despite the latter’s controversial role in some similar instances. This case involves Asia’s two big military and nuclear powers, and their restraint from the UNSC may be driven by strategic, political, and economic considerations with competing stakes. However, if a situation involves a powerful and a weak State, military and political coercion would invariably go against the weak in the absence of any multilateral involvement. The structure of the UN Charter appears to be built on this understanding. At least that is the spirit with which the UNSC is expected to be formally functioning. Therefore, any instance of the use of force between member States invariably should be evaluated within the confines of the UN Charter with the involvement of the relevant institutional mechanisms.
Jus in bello issues
Another important framework applicable to international armed conflict is the jus in bello or international humanitarian law rules. To determine the existence of an international armed conflict, common article 2 of the four Geneva Conventions (GCs) provides the criteria. Latest Commentary on article 2 states that ‘[a]rmed conflicts … occur when one or more States have recourse to armed force against another State, regardless of the reasons for or the intensity of the confrontation.’ This specifically refers to ‘recourse to armed force’. Whether the 15 June face-off between China and India meets this requirement depends on whether there was recourse to armed force. India stated that troops carried arms on 15 June but did not use them because of the 1996 and 2005 agreements. Concerning the intensity of the conflict, the Commentary says: ‘Even minor skirmishes between the armed forces, be they land, air or naval forces, would spark an international armed conflict and lead to the applicability of humanitarian law.’ Going by these explanations, the 15 June violent face-off meets the requirements of international armed conflict.
The most important jus in bello aspect of this face-off is the kind of means that were used. Both sides used fence posts and clubs wrapped in barbed wire, and also spiked rods and rocks. These weapons can be considered as relatively primitive in comparison to the arms used in contemporary conflicts. While it is noteworthy that these weapons were used as an alternative to firearms, in compliance with the bilateral agreements between two States, the compatibility of these weapons with international humanitarian law needs evaluation as per the rules on superfluous injury and unnecessary suffering. Article 35(2) of the Additional Protocol I prohibits the use of ‘weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’ This prohibition is also part of customary international law. The prohibition of means of warfare under this rule is decided based on the effect of a weapon on combatants. If a weapon causes superfluous injury or unnecessary suffering to combatants, they are considered as prohibited. The weapons used in the violent face-off between China and India are not prohibited in any treaty. However, their effect may make them prohibited weapons. International Committee of the Red Cross (ICRC) study on customary international humanitarian law provides examples of weapons that are considered as prohibited in the state practice, based on their effects. These examples include lances or spears with a barbed head and serrated-edged bayonets. These weapons resemble in certain respects the weapons used in the 15 June violent face-off. As there may not be many examples of usage of such kind of weapons in other contemporary conflicts, it is imperative that China and India reveal the gravity of injuries and suffering, which led to deaths and injuries to the combatants on both sides. The effect of these weapons needs evaluation to determine their legality.