On September 29, India’s Director General of Military Operations (DGMO) announced that the Indian armed forces had conducted “surgical strikes” against terrorist launch pads preparing to infiltrate terrorists into India from what India calls Pakistan-Occupied-Kashmir (POK). The development, while a marked shift in India’s defense policy, also raises key questions of international law and national sovereignty, such as, did the Indian strikes violate Pakistani sovereignty? Did India’s use of force violated international law vis-à-vis article 2(4) of the United Nations Charter? And did the strikes give Pakistan the right to retaliate? The last question is the most crucial, as its answer will determine if Pakistan has the right to respond militarily against India – thereby escalating the tensions.

Any discussion of India’s ‘surgical strikes’ would have to take into account the recent attacks on the Indian army base at Uri in Kashmir, and the decades-long Pakistani-backed militancy in the Kashmir valley. In the aftermath of the Uri bloodbath where 18 Indian soldiers were killed, Indian investigators said that they are in possession of damning evidence of Pakistani involvement in the attacks, the DGMO stated that the materiel recovered from the slain militants had Pakistani markings, and that initial investigations revealed the perpetrators to belong to Jaish-e-Mohammad (JeM), a Pakistan-based terror outfit. Regardless of whether JeM was behind this particular attack, it is indisputable that a Pakistani-backed militancy exists in the valley and that the terrorists have carried out scores of attacks on security forces and civilians alike. These outfits have been condemned by the international community, with both the UK’s Home Office and the US State Department listing at least three of the Islamist groups active in Kashmir to be ‘foreign terrorist organizations.’ These are the Harakat-ul-Mujahideen, Jaish-e-Mohammed, and the Lashkar-e-Taiba – all of whom have found a safe haven in Pakistan. Multiple reports, including the Congressional Research Service’s recent report on ‘Foreign Terrorist Organizations’ list these outfits as ‘Pakistan-based’ and ‘anti-India,’ with the stated objective of forcibly wresting the state of Jammu & Kashmir from Indian control and uniting it with Pakistan.

I. Legal Absolution

India’s recent strikes against terrorist launch pads are justified on the ground of self-defense, thereby making them a legitimate use of force and denying Pakistan the right to retaliate under its own counter-claim of self-defense or violation of national sovereignty. Before proceeding with a detailed analysis of the strikes’ legality, it is prudent to survey briefly the relevant law on the matter. Article 2(4) of the UN Charter prohibits the threat or use of force and calls on all UN members to respect the sovereignty, territorial integrity, and political independence of other states. An important exception to the prohibition under Article 2(4) may be found in Article 51 which allows states, in the event of an armed attack against them, to use force in self-defense.

Article 51 recognizes an ‘inherent right of self-defense’ in the event of an armed attack. However, a state exercising that right need not wait for an armed attack to occur. The right of self-defense has been recognized under international law as encompassing anticipatory self-defense, i.e., the right of a state, as a last resort, to use the necessary-minimum or proportional force in order to prevent an imminent armed attack against it. The above mentioned three-pronged test of necessity (last resort), proportionality, and imminence of threat were essentially laid down as the prerequisites to exercise the right of anticipatory self-defense in the 19th century dispute between the United State and the United Kingdom, which has now evolved into the Caroline doctrine governing the exercise of the right of self-defense under Article 51 of the UN Charter. Considering that the DGMO’s press statement expressly mentioned the existence of credible and specific information of an imminent terrorist infiltration, and that the strikes were limited to thwarting that operation, India was well within her right to use force inside Pakistani territory. India’s exercise of the right of anticipatory self-defense is nothing new– there is considerable state practice on the subject, most notably, in Israel’s exercise of an anticipatory self-defense on the eve of the six-day war in 1967.

India’s strikes – which were aimed against the terror outfits and not the Pakistani state – were in fact a legitimate exercise of the right of self-defense. Although The Wire portrayed the attacks as preemptive self-defense, what India carried out was an act of anticipatory self-defense. Preemptive self-defense – which involves a state preemptively attacking an enemy in order to stop it from potentially harming the state in the future – is a type of defense that is illegal under international law. Case in point being, Israel’s 1981 attack on the Osirik reactor in Iraq was determined to fall outside the ambit of article 51’s right of self-defense, and was consequently condemned by the international community.

II. A Violently Mild Response

Regardless of the indignation expressed by the Pakistani establishment over India’s strikes, these were, in fact, the mildest retaliation that India was entitled to use. For instance, India restricted its strikes to terror outfits and did not target Pakistani state establishments. The post 9/11 developments in international law permit a victim-state, in the event of an armed attack by a non-state actor, to use military force not only against such an actor but also against the state harbouring it. This development arose in the aftermath of the September 11 attacks when the US asserted the ‘harbour or support’ standard to attribute the actions of the Al-Qaeda to the Afghan government, entitling the US to engage in military action against the terror group as well as the state of Afghanistan. This new standard – which permits the use of defensive force against a state that actively ‘harbours’ or ‘supports’ a non-state actor – was endorsed by the UN Security Council (UNSC res. 1368) and the Permanent Council of the Organization of American States (CP res.796). Moreover, the NATO declared that it would treat attacks “directed from abroad” as armed attacks under the meaning of the article 51. The growing acceptance of the ‘harbour or support’ standard under international law can be evidenced in its incorporation into the African Union’s 2005 defense pact which defines “aggression” (an act which is generally acknowledged as triggering the right of self defense) to include the encouragement, support, harbouring or providing assistance for the commission of transnational terrorist acts.  Considering the sanctuary provided by Pakistan to the JeM, the provision of materiel – as evidenced by the Pakistani equipment seized after the Uri attacks – to the outfit, and former Pakistani President Pervez Musharraf’s recent admission that Pakistan’s intelligence service, the Inter-Services Intelligence, trains the JeM “freedom fighters,” the Indian state could have potentially attributed the conduct of the JeM to Pakistan and invoked the right of self-defense against the terror-outfit and the Pakistani state.

Alternatively, India could – and still may at a future date – choose to engage in extraterritorial law enforcement. The emerging doctrine holds that a state which suffers an armed attack by non-state actors taking refuge in a foreign state, may use force against such non-state actors if the host state is either ‘unwilling’ or ‘unable’ to police its own territory in order to prevent or punish such attacks. Pakistan’s persistent failure to act against JeM and other such outfits, which find sanctuary in its territory, meets the test – whether the government lacks the capacity or the willpower. It is important here to note that when a state undertakes extraterritorial law enforcement, it is attacking the parasitical terrorist group in the host country and not the host country itself. Although extraterritorial law enforcement has not yet attained the level of customary international law, the preambular paragraphs of the unanimously passed Security Council resolutions 1368 (12 September 2001) and 1373 (28 September 2001) offer authoritative evidence of its emergence as a principle of international law. Both resolutions were specifically aimed at responding to major terrorist incidents carried out by non-state actors, at a time when no state was publicly attributing responsibility for these incidents on foreign states where the actors were harboured. Furthermore, there has been growing state-practice on this principle, such as, the Israeli invasion of Lebanon in 1982 in response to Palestinian Liberation Organisation attacks; the US bombardment of a suspected chemical factory in Sudan and training camps in Afghanistan in response to al Qaeda attacks on American embassies in Kenya and Tanzania in 1998; and the Israeli invasions of Lebanon in 2006.

The greatest advantage of engaging in extraterritorial law enforcement is the permissiveness of ‘retaliatory attacks.’ A state would not be temporally restricted to using preventive force limited to ‘imminent threats,’ of armed attack. For India, this would mean that its armed forces could use force against terror outfits not only when there is credible information of imminent armed attack, as was the case in the recent surgical strikes, but also as retaliation post an attack. Such a retaliation, however, would still need to satisfy the remaining prerequisites of necessity and proportionality.

The author writes here in his personal capacity, and his views do not necessarily reflect those of the Government of India.