India’s right to Self Defence under International Law

A few hours ago there was a flurry of activity in the nation. Pakistan’s fears have come true as India has taken a pre-emptive action against Pakistan by conducting what the MEA termed ‘non- military’ air strikes deep into the Pakistani territory targeting the terrorist organization, Jaish-e-Mohammed (JeM). 12 Mirage 2000 jets took part in the operation by the Indian Air Force (IAF) which dropped 1000 Kg of bombs on terror camps, completely flattening them.  IAF strike lasted for about 21 minutes, right from take-off till the return into Indian Territory. The joint training camps of JeM, Lashkar e Taiba(LeT) and Hizbul Mujahideen were hit.

CNN-News18 reported quoting government sources that the Balakot Jaish camp has been completely flattened in the limited strikes conducted by IAF. The sources said that initial assessment of damages suggest at least 200 to 300 casualties. JeM terrorists, senior commanders and jihadis have been eliminated. The non-military strikes were conducted on hill tops, away from the civilian presence so no civilian casualties have been reported.

The strikes took place in three locations:

1. Balakot, which is 24 kilometre northwest of Muzaffarabad, capital of Pakistan Occupied Kashmir, was struck between 3.45 am and 3.53 am.
2. Muzaffarabad, capital of Pakistan Occupied Kashmir, was hit between 3.48 am and 3.55 am.
3. Chakothi, was the last to be hit between 3.58 am and 4.04 am

The two locations of Muzaffarabad and Chakothi fall within the Indian Territory temporarily called Pakistan occupied Kashmir (POK). So, there is no international law that restrains the bombing of one’s own country to act against internal terrorism. However, the issue arises when dealing with the territory of Balakot, which is in the Pakistan territory, beyond the disputed land. The place of the strike, Balakot is in Khyber Pakhtunkhwa province of Pakistan.  

Balakot is one of the oldest, biggest and the best-known training camps of JeM, which has found mention in many past terror cases in India and abroad. It was run by Maulana Yusuf Azhar, brother in law of Jaish chief Masood Azhar. Masood Azhar wrote the Fath-ul Jawwad, his disquisition on the Quranic basis of jihad, during a retreat at Balakot.

So in short, Balakot was the cradle of JeM terror.

RIGHT OF SELF DEFENCE

The right of states to use military force is restricted to self-defence under the UN Charter. Article 51 of Chapter VII of the UN Charter recognises the rights of states for self-defense and specifically mentions self-defence against an armed attack as a legitimate use of force that does not require any authorization from the UN Security Council.

Article 51 of the UN charter

“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

Under international law under UN Charter, self-defensive force must observe two chief principles: necessity and proportionality. Necessity requires that States resort to force as a sole resort available to defend itself against a threat. Furthermore, states must also exhibit both that the external threat is real and that peaceful means have been exhausted. Proportionality is the second fundamental principle underlying self-defense. Its proportionality does not refer to equality between the quantum, intensity or means of force, rather it is understood as the degree of force strictly required to repel a given threat. 

It is important to note that the right of self-defence mentioned under Article 51 of the UN charter does not stipulate any particular types of aggressors and does not limit the right of self-defense to attacks by states alone. It could be exercised against the non-state actors, especially terrorists. This is substantiated by the UN Security Council resolutions 1368 (2001) and 1373 (2001). Hence India’s action in attacking the terrorist camps is justified. 

Pre-emptive war is defined as a situation where a would-be aggressor has exhibited sufficient hostile act; that suggests an intent to imminent attack accompanied by military preparation that makes the intent a “positive danger”. 

The attack on the territory of Balakot has been termed as ‘non-military pre-emptive attack’ by the Indian establishment. India as a peaceful, non-violent and law abiding nation has never taken any aggressive action on foreign soil. Believing in going about the peaceful manner, India has always left the matters to the UN Security Council so as to respect and uphold the international norms and resolve matters through diplomacy. But this time, the threat was severe. The Kashmir region was fraught with tensions and anxiety as these terrorist organizations had infiltrated India and were contaminating the minds of the local school going youth. A report by External affairs ministry stated, “India had to take non-military pre-emptive action as it had come to light that the terrorist organizations were attempting suicide attacks in various parts of the country.”

The Pulwama suicide bombing occurred in a high security zone on a convoy consisting of over 2,500 soldiers. One shudders to imagine what might have happened in a civilian area.

Moreover, this is not the sole case of terror attack against India. Since the past many years, there have been a number of terrorist attacks on Indian soil stemming from terrorist organizations originating in Pakistan. Starting from the 2001 parliamentary attacks by LeT and JeM, to the Mumbai terror attacks in 2008 by LeT, Pathankot, Baramulla and Uri attacks in 2016 by JeM, Mumbai train bombings in 2006 by LeT and even the Samjhauta Express bombings in 2007 by LeT and JeM were all caused by Pakistan harboured terrorist organizations.

Pakistan Prime Minister Imran Khan stated, “It is not in Pakistan’s interest for its territory to be used for terrorism. We want a civilised relationship with India”, in an interview with India TV. Based on such public remarks, Indian government had been urging Pakistan to take action against JeM and other terrorist organizations but without avail. Imran Khan not only failed to condemn the Pulwama attack, but went on National Television to deliver a stern warning to India. Moreover, Pakistan was continuing to deny the existence of the jihadi training camps and terrorist base camps so therefore the pre-emptive strike became a requisite, for the sake of India’s defensive protection.

Such pre-emptive actions in accordance with the UN Charter on part of nations are not new and there are in fact several established precedence of such actions:

1. Israel’s six day war in 1967

In 1967, the combined armies of Egypt, Syria, and Jordan with approximately 465,000 troops, more than 2,880 tanks and 810 aircrafts, were preparing to attack Israel. Egypt’s blockade of the waterway known as the Strait of Tiran, which prevented access to Israel’s southern port of Eilat, was an act of aggression. Israel, faced with the imminent threat of attack, was forced to invoke its right of self-defense, a basic tenet of international law, enshrined in Article 51 of the UN Charter. Furtherance to that, Israel launched a surprised pre-emptive air strike against Egypt on June 5, 1967.

1. Iraq air strike in 1998

US ordered America’s armed forces to strike military and security targets in Iraq in accordance with the UN Charter. This came after Saddam Hussein announced that he would no longer cooperate with the United Nations weapons inspectors UNSCOM. Saddam Hussein had used the weapons of mass destruction previously and was perceived as a threat internationally.

1. Us invasion of Iraq in 2003

The U.S. fought a preemptive war in Iraq in 2003 against the threat of Saddam Hussein’s program of weapons of mass destruction. This later led to the incorporation of the Bush doctrine in the US constitution specifying the principle of the use of preventive war.

1. Operation Opera 1981

This was a surprise pre-emptive Israeli air strike carried out on 7 June 1981, which destroyed an Iraqi nuclear reactor under construction.

The present IAF attack is in the wake of the dastardly attacks carried out and based on the intelligence report of the anticipation of more such attacks by Jaish e Mohammad, a UN Security Council sanctioned Terrorist organization.

The latest attack, the one at Pulwama was recognized and critisised by international organizations all over the globe. Moreover, the UN Security Council with all its 15 nations condemned in the “strongest terms” the “heinous and cowardly” terror attack by Pakistan-based Jaish-e-Mohammed.  “The members of the UN Security Council underlined the need to hold perpetrators, organisers, financiers and sponsors of these reprehensible acts of terrorism accountable and bring them to justice, and urged all States, in accordance with their obligations under international law and relevant UN Security Council resolutions, to cooperate actively with the Government of India and all other relevant authorities in this regard,” UN Security Council stated in a press conference. “The members of the UN Security Council reaffirmed that terrorism in all its forms and manifestations constitutes one of the most serious threats to international peace and security,” the statement said. The members also reiterated that any “acts of terrorism are criminal and unjustifiable, regardless of their motivation, wherever, whenever and by whomsoever committed”. 

The evidence on previous attacks by Pakistan sheltered terrorist groups coupled with the failure of Pakistan in taking any action to prevent such attacks, show that India had no choice of means and no moment of deliberation but to pre-emptively take out the terror launch pads. As the attack exclusively aimed at terrorist bases with low collateral damage, it is proved that the force used is proportional to the attack pre-empted.

In light of the aforementioned issues and developments, it is quite clear that this non-military pre-emptive strike was a self defensive action on India’s part. Fulfilling the requirements of necessity and proportionality required to carry a self defensive action under the UN charter, the attack was aimed at exclusively eliminating the terrorist camps which have caused and were planning to further cause international terror attacks.