The former head of the Shin Bet – Israel’s secret service – Ami Ayalon once quoted the 19th-century military theorist Clausewitz as saying “victory is simply the creation of a better political situation”. It might not be the most objective of statements but it does hold true in the context of the recent extraterritorial surgical strikes carried out by the Indian armed forces. As the regional and global intelligentsia decipher the political and militaristic impact of India’s armed attack, the Indian Director General of Military Operations’ press statement confirming the surgical strikes presents a strong case for the attack in line with international legal principles.
In addition to announcing the objective of the Indian attack as being that of neutralising non-state armed group(s), the statement (a) points towards Pakistan’s responsibility to curb terrorist activities on its territories, (b) justifies the attack and (c) avoids making claims that could further stoke the escalation.
The statement refers to a commitment made by Pakistan in January 2004 for “not allowing its soil or territory under its control to be used for terrorism”. A look down the archives leads to a joint press statement made by the two nations on January 6, 2004 that reads, “President [Pervez] Musharraf reassured Prime Minister [Atal Behari] Vajpayee that he will not permit any territory under Pakistan’s control to be used to support terrorism in any manner.”
The International Court of Justice, in its 1949 judgement in the Corfu Channel case, spelled out the legal principle behind this commitment. It observed that it is “every state’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other states”. Moreover, one need not go into the legal authoritativeness of Pakistan’s 2004 commitment as the ICJ in the above-mentioned case affirmed that this is a general and well-recognised principle of international law.
The principle is reverberated in the UN Security Council resolutions adopted in the aftermath of 9/11, namely 1368 and 1373 and various other treaties on counter-terrorism. The 1373 resolution particularly spells out the obligation emanating from the above-stated principle and casts the duty, among other related ones, on each UN member state to “prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other states of their citizens”.
The DGMO said that despite persistently urging Pakistan to respect its 2004 commitment, “there has been no let-up in infiltration and terrorist actions from across the Line of Control”. This echoes the US Department of State’s 2015 Country Reports on Terrorism that, while giving a holistic account of the counter-terrorism efforts of Pakistan, noted, “Pakistan has also not taken sufficient action against other externally-focused groups such as Lashkar-e-Taiba (LeT) and Jaish-e-Mohammad (JeM), which continued to operate, train, organise, and fundraise in Pakistan.”
Ascertaining whether a state has diligently attempted to prevent its territory from being used to carry out terror activities against other state(s) depends on two elements. First, whether the state possessed or ought to have possessed the information of such activities being carried out on its territory. And second, its capacity or ability to thwart the same.
In this regard, the principle laid down in the 1872 Albania Claims Case is of relevance. Therein, the US had moved against the UK for not taking measures against the construction of warships on its territory, which were then used against the former in the civil war. The tribunal ruled in favour of the US by finding that the UK had failed to act upon the representations made to it by the US through diplomatic channels. The DGMO’s statement denotes that Pakistan had been notified that terrorist activities originated from its territories.
The DGMO added, “If damage was limited, this was primarily due to the efforts of our soldiers deployed in our multi-tiered counter-infiltration grid that has been effective in neutralising infiltrating terrorists.”
This implies that the results of having persistently urged Pakistan to honour its 2004 commitment did not come through.
Justification for the attack
The statement very crucially points out that before carrying out the attack, “the matter had been taken up at highest diplomatic levels and through military channels”.
Under international law, while determining the legitimacy of an extraterritorial armed attack in self-defence against a non-state armed group, it is essential for the State’s use of force to be in compliance with the principles of necessity and proportionality. Although the doctrine of self-defence has been debated to no conclusive consensus in international spheres, the one thing that is certain is that in such matters, before resorting to use of force, if the circumstances permit, attempts should be made through diplomatic channels to resolve the issue. India has been vocal about the terrorist attacks at the Security Council and the DGMO’s press statement clarifies that it had been engaging with Pakistan on diplomatic levels.
If despite these measures it receives “specific and credible inputs that some terrorist teams had positioned themselves at launchpads along the Line of Control to carry out infiltration and conduct terrorist strikes inside Jammu and Kashmir and in various metros in other states”, then it is indicative that measures other than using force had failed to yield desirable outcomes and an armed attack was the only option, very justifiably so.
Sticking to the objective
The DGMO steered away from speaking on the nature of the relationship or even the existence of one between Pakistan and such non-state armed groups; and doing so prevents it from being construed as legally attributing Pakistan with the actions of the group. This avoidance is of particular importance. The relationship and element of control between a state and a non-state armed group operating from its territory determines the legitimacy of the armed attack conducted by a victim state in its self-defence.
In this context, India has a right to use force against the non-state armed groups aiming to infiltrate and attack. If, however, one attributes such a group’s actions to Pakistan, then as per the applicable law, India draws a right to use force against Pakistan and its agents. In not conveying so, the statement effectively appreciates the sensitivity of the situation and draws a close upon the escalation. It does not give any room to any undesirable interpretation on this subject by clearly stating that, “The operations aimed at neutralising terrorists have since ceased.”
All in all, it is a welcome statement indicating that despite all the complications and difficulties, India took recourse to other measures and considered the legality of its decision before carrying out the armed attack.
Sukrit Rajesh Kapoor is an advocate practicing in New Delhi. His Twitter handle is @sukwrit.
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