India’s Decisive Turn on the Right of Self-Defence

Srinivas Burra is an Assistant Professor at South Asian University.

Photo credit: Irish Times

This post deals with India’s recent statement on the right of self-defence against the acts of non-state actors. India’s statement at the Arria Formula meeting on 24 February 2021, organised by Mexico on the topic of ‘Upholding the Collective Security System of the UN Charter: the Use of Force in International Law, Non-State Actors and Legitimate Self-Defence’ attains significance not only for itself but in general on the issue. The statement is important at least on three counts. Firstly, through this statement, India for the first time, expressly contextualises its position on the question of the right of self-defence against the acts of non-state actors in international law. Secondly, the statement articulates the position that is arguably expansive than other States’ positions on the issue. Thirdly, the statement makes a clear departure from its hitherto followed practice and implied views on the right of self-defence against the acts of non-state actors.

Contextualising Self-defence in International Law

India’s statement explicates what constitutes the right of self-defence under international law in general. It contextualises the right of self-defence in customary international law as well as in accordance with the UN Charter. The Statement states:

Customary international law has long recognized the principles governing the use of force in self-defense. Exercising self-defense is a primary right of States to be exercised when the situation is imminent and demands necessary, immediate, and proportionate action.

This paragraph has three important aspects. First, it states that customary international law recognizes the right of self-defence for long, which means even before the United Nations Charter. In other words, the right of self-defence exists outside Article 51 of the UN Charter. The second and critical aspect of the paragraph is that customary international law recognises preemptive self-defence. While the statement is not explicit on preemptive nature, it uses the words “when the situation is imminent” which means the right of self-defence gets activated not only when the armed attack actually occurs but when it is imminent that it would occur. The third aspect is that it does not specify whether customary international law permits the right of self-defence against non-state actors.  However, at the same time, it does not state that it exists only against attacks from States.

The most unambiguous part of the statement talks about the scope of Article 51 of the UN Charter. The statement says:

Article 51 is not confined to “self-defense” in response to attacks by states only. The right of self-defense applies also to attacks by non-state actors. In fact, the source of the attack, whether a state or a non-state actor, is irrelevant to the existence of the right of self-defense.

This paragraph goes farther to define the contours of Article 51 to include the right of self-defence against the attacks of non-state actors. As the text of Article 51 is silent on the originator of the attack, the statement seems to rely on that when it says that the source of the attack is irrelevant.

When the statement refers to customary international law, it does not specify that the right of self-defence extends to attacks from non-state actors. Similarly, when it refers to Article 51, it does not specify whether it permits preemptive self-defence.  However, the statement goes on to say that ‘a State would be compelled to undertake a pre-emptive strike when it is confronted by an imminent armed attack from a non-state actor operating in a third state.’ It means that India considers that States are permitted to go for preemptive self-defence strikes when an attack is imminent from non-state actors operating from another State. Neither India’s view of customary international law nor its view of Article 51 reflects its view of right of self-defence when they are read as independent from each other. However, its combined view of customary international law, which permits preemptive self-defence, and Article 51, which permits self-defence against non-state actors, is what it presents as its comprehensive view of right of self-defence against the attacks from non-state actors. This is a significantly expansive view of the right of self-defence.

Expansive View of the Right of Self-defence

While the statement articulates India’s position, it presents by far the broadest view of the right of self-defence against non-state actors.  While presenting India’s position, the statement summarises States’ views who support the right of self-defence against the attacks from non-state actors. It identifies three features which, in its view, reflect the position of these States.  According to the statement, these States believe that self-defence is permitted against non-state actors if:

i. The non-state actor has repeatedly undertaken armed attacks against the State

ii. The host State is unwilling to address the threat posed by the non-state actor.

iii. The host State is actively supporting and sponsoring the attack by the non-state actor.

The statement does not make it clear whether these three criteria need to be read together or independently. If three are read together, the second feature does not go along with the first and the third. If the first and third features are read together, the result is similar to the attributability in determining the host State’s role. The second feature goes closer to the unable or unwilling test as subscribed to by some States. It goes further as it refers to the unwillingness to address the ‘threat’ and not the ‘attack’. Thus, the second feature deals with situations of the threat posed by non-state actors, and the first and third features envisage the situations of the actual occurrence of attacks. This incongruity makes it difficult to read them together. If the three features are read as independent criteria, a situation meeting any one criterion will activate the right of self-defence. If read as independent from each other, each of them makes an independent coherent criterion. The second criterion provides for preemptive self-defence as it does not require the occurrence of the attack and subjects the same to the host State’s unwillingness to address the threat, whereas the first and the third are valid grounds in situations of actual attacks.

The statement, seemingly summarising States’ views who support the right of self-defence against the attacks from non-state actors, emphasises mainly preemptive self defence. Thus, while referring to these three features in apparent affirmation, it favours preemptive strike when confronted by an imminent armed attack from a non-state actor operating in a third state. This unqualified position in favour of preemptive strike is not the same as what the statement describes as the positions of various States that support self-defence against non-state actors. While it is closer to the second criterion, it is not the same. The second criterion qualifies it with unwillingness on the part of the host State to address the threat. However, India’s statement does not mention the requirement of unwillingness before proceeding with a preemptive strike. This makes India’s position expansive than many other States that favour self-defence against non-state actors. Most of the States favoring the right of self-defence against non-state actors are explicit on the inability or unwillingness requirement on the part of the host State and/or refer to Article 51 of the UN Charter (see here). At the same time, these States do not explicitly emphasise the customary international law justification.

A Decisive Departure

India’s statement at the Arria Formula meeting is a clear departure from its past practice and positions. In the recent past, India used force allegedly against non-state actors operating from its neighbouring State of Pakistan, at least on two occasions with significant military force involvement. The first occasion was when India engaged in, what it calls, surgical strikes in 2016.  On 29 September 2016, Director General Military Operations of India informed in a statement that it

‘has been a matter of serious concern that there has been continuing and increasing infiltration by terrorists across the Line of Control in Jammu & Kashmir.’ It further said that it ‘reflected in the terrorist attacks at Poonch and Uri on 11 and 18th of September respectively.’ Accordingly, ‘[b]ased on very credible and specific information which we received yesterday that some terrorist teams had positioned themselves at launch pads along the Line of Control with an aim to carry out infiltration and terrorist strikes in Jammu & Kashmir and in various other metros in our country, the Indian army conducted surgical strikes last night at these launch pads.’

The statement does not refer to the right of self-defence or does not offer any justification under the customary international law or under the UN Charter.

The second instance is the Balakot strikes of 2019. On 26 February 2019, the Foreign Secretary of India issued a statement in which he stated that on

’14 February 2019, a suicide terror attack was conducted by a Pak based terrorist organization Jaish-e-Mohammad, leading to the martyrdom of 40 brave jawans of the CRPF. JeM has been active in Pakistan for the last two decades,…’

While providing this information as a background, the statement further informed that in

‘an intelligence led operation in the early hours of today, 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.’ The statement considered it as a ‘non-military preemptive action’ which ‘specifically targeted at the JeM camp.’

There was no reference to the right of self-defence in the statement. It also did not refer to the customary international law or the UN Charter. Thus, in respect of these two incidents in which India used its military force, it did not specify the nature of its attacks as the exercise of the right of self-defence. There was no express justification under international law.

The Arria Formula statement refers to Pathankot and Pulwama incidents. However, when India responded to these and other incidents through the surgical strikes and the Balakot strikes, it did not refer to the right of self-defence then. In that respect, Arria Formula statement is a clear departure from the past as it articulates its position on the right of self-defence against the acts of non-state actors. In addition to these two incidents in respect of which no right of self-defence justification was given, India has been part of multilateral statements on the right of self-defence which do not expressly support the right of self-defence against non-state actors. The Final Document of the Non-Aligned Movement states that

‘Article 51 of the UN Charter is restrictive and should not be re-written  or re-interpreted.’

Though the Final Document is not clear on what it means when it says restrictive meaning, restrictive reading of Article 51 may be understood at least in two respects: firstly, by way of restricting it to actual armed attacks and not to extend it to mere threats, and secondly, by way of confining the use of force as the right of self-defence between States only and not to extend it to acts of non-state actors. India’s statement goes much farther than this restrictive reading. Going by this, India’s statement is a clear departure from its past position.

However, a few ambiguous observations make the statement less clear on the issue in general. It states that the Covenant of the League of Nations rendered ‘use of force’ unlawful in certain circumstances, whereas the Covenant refers to  ‘war’ and ‘resort to war’ and does not use the words ‘use of force’.  The statement also says that

‘Security Council resolutions 1368 (2001) and 1373 (2001) have formally endorsed the view that self-defense is available to avert terrorist attacks such as in the case of the 9/11 attacks.’

It refers to these resolutions in support of its view that a State is permitted to ‘undertake a pre-emptive strike when it is confronted by an imminent armed attack from a non-state actor operating in a third state.’ However, these resolutions are not as explicit as the statement presents. The statement further refers to the Friendly Relations Declaration in a similar vein. However, this Declaration may be of relevance in understanding the attributability of actions of non-state actors to the host State than in the context of preemptive self-defence.

Despite these ambiguities, India’s statement is a first of its nature coming from India. It is expansive than other States’ views in terms of its scope. More importantly, while referring to unwillingness requirement subscribed by other States, it does not rely on unable or unwilling test.  It justifies preemptive self-defence against non-state actors based on the combined reading of customary international law and Article 51 of the UN Charter. It makes a clear departure from its previously held positions. In addition to these, India’s statement gains importance as it currently is a non-permanent member of the UN Security Council.