On the 26th of February 2019, the Indian Airforce (IAF) bombed a Jaish-e-Mohammed training camp in Pakistan’s Balakot town. This was in retaliation to the incident that took place on February 14th, 2019, in which 40 Central Reserve Police Force personnel were killed by a vehicle-borne Improvised Explosive Device in the Pulwama district of Jammy& Kashmir. JeM had claimed responsibility for carrying out this attack. Pakistan has condemned India’s retaliatory act .So, the question that arises is; whether this action by India can be defended under international law?
According to the International Law Commission’s Draft Articles on the Law of Treaties with Commentaries, the Charter of the United Nations (the Charter) codifies the non-derogable or jus cogens prohibition on States employing threat or use of force “in their international relation…against the territorial integrity or political independence of any State…”under Article 2(4). A customary principle of international law, it applies to all States. Thus, bombing by the IAF aircrafts, which involves sending of the army to kill a person across borders, is a clear breach of this principle. Under these circumstance India has 2 legal alternatives:
- Going to the Security Council; and
- Invoking Article 51 of the U.N. Charter.
1. GOING TO THE SECURITY COUNCIL
The most immediate option before India is to approach the Security Council (SC) for authorization to move against the JeM.This requirement is reiterated in the UN report entitled, “A more secured world: Our shared responsibility”. Since India has not taken recourse to this alternative, it is only under Article 51 of the Charter that the bombing can be justified.
2. INVOKING ARTICLE 51 OF THE U.N CHARTER
Article 51 declares that, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence…”. India therefore can invoke self-defence under this article even without SC authorization. This is because the member-states have a customary right and “inherent right of individual…self defence if an armed attack occurs” under Article 51.
However, taking this route gives rise to four problems.
- Whether there was an “armed attack’ as under Article 51;
- Can Article 51 be invoked against non-state actors;
- Whether the bombing, within the sovereign territory of Pakistan is violative of international law; and
- Whether the bombing is “proportionate and necessary?”
First, as has been held in the Oil Platforms case recourse to this right requires that an armed attack has occurred. Most traditional scholars would hesitate to refer to the Pulwama incident as an armed attack in terms of Article 51, because the Charter’s framework does not take into account threats like terrorism. Further, it is also because this phrase in this context hasn’t been defined properly. Here India can cite contemporary State practice since the Hezbollah’s killing of an Israeli border patrol has been condemned as an armed attack under Article 51, a situation akin to Pulwama.
While the “armed attack” criterion is fulfilled, the second problem pertaining to whether India can invoke self-defence against non-state actors, still persists.
Second, the International Court of Justice in a number of cases like Construction of a Wall Advisory Opinion and the Armed Activities case has limited the right of self-defence to be invoked only against States and not non-state actors .However, as Judge Simma has opined in his separate opinion in the Armed Activities case ,and as observed by scholars like Sean Murphy and Christian Tams, regarding contemporary State practice, Article 51 can be exercised against non-state actors. Moreover, the SC has given such an approach legitimacy by recognizing this right in their landmark resolutions 1368 and 1373. The change in State practice with respect to countering terrorism post 9/11 plays to India’s advantage. The adoption of Bethlehem principles, which deal solely with self-defence against non-state actors, by the USA, UK and Australia lends further substantiation to this right.
Third, now that India can justify the invocation of Article 51 even against non-state actors, another hurdle arises. This is, whether any defensive action against JeM,that happens within the sovereign territory of Pakistan, be violative of international law. While the pre-9/11 approach would not allow for such an action by immediately declaring it a violation of territorial sovereignty, maybe even a violation of Article 2(4) of the Charter, the post 9/11 approach is less restrictive. Scholars on the use of force and Article 51 like Sean D. Murphy, Tom Ruys and former ad-hoc judge of the ICJ Joe Verhoeven, have maintained that a retaliatory measure against a non-state actor is justified even when it affects the rights of the State, subject to two preconditions which must be met; first, the affected State must have given the said non-state actor(s) refuge; and second, the capture of the said actors should have been rendered impossible because the host State is “unwilling or unable” to hand them over. This approach has also been recognised by the Special Rapporteur on Extrajudicial, summary and arbitrary killings; Philip Alston in the Addendum to the Study on Targeted Killings, 2010. Since the government of Pakistan has on multiple occasions refused to hand over Maulana Mahsood Azhar and other terrorists who were involved in previous terror attacks including Pulwama, this hurdle is easily overcome.
Fourth, as has been held in the Nuclear Weapons Advisory Opinion and the Nicaragua case ,for a legitimate invocation of self-defence, the response should be proportionate and necessary. Due to the repeated perpetrating acts of terrorism by JeM, it is necessary for India, in order to ensure the safety of their citizens, to respond. Therefore, the necessity criterion is fulfilled. So far as proportionality is concerned, scholars like M. Mcdougalsay that the action should be proportional to the gravity of the offence. Further it is agreed by scholars like Tom Ruys, that the response should not be identical to the original event. The bombing of a single JeM training camp like the bombing of a convoy which was meant to kill as many as possible is, in the opinion of the author, proportionate.
While India has as of now taken the stand that its actions were preemptive in nature, invoking the right of self-defence in the opinion of the author,India can assume a better stance from a legal perspective. Resorting to Article 51 gives legitimacy for the sole reason that it is more established in public international law than compared to preemptive or anticipatory self-defence.
Aaditya Shankar Dixit- IInd Year, BA.LLB(Hons.) National Law Institute University, Bhopal
You can reach Aaditya Shanker Dixit at email@example.com