By Laya Maheshwari
On Feb. 14, a suicide bombing in the Indian state of Jammu and Kashmir killed more than 40 members of Indian paramilitary forces—the deadliest terrorist attack in Kashmir’s history. Jaish-e-Mohammed (JeM), a terrorist group based in Pakistan and rumored to have “close ties” to its spy agency, claimed credit for the bombing. JeM’s continued existence has long been a pressure point in India-Pakistan relations, and this latest incident was no different. The attack set off an escalating chain of aerial attacks, first by India and then by Pakistan, that culminated in an Indian pilot being held captive as a prisoner of war by Pakistan for two days. India’s initial attack in Pakistani territory, on Feb. 26, was followed by a statement by the Indian foreign secretary, which described the attack as a “non-military preemptive strike” conducted in self-defense against JeM.
India justified its attack as an act of self-defense against JeM, without attributing the group’s actions to Pakistan. It listed a series of terrorist attacks the group had conducted in India in the past and hinted at “[c]redible intelligence” that another attack would take place in the near future, necessitating India’s action in light of Pakistan’s unwillingness to tackle terrorist groups active on its soil. India’s statement raises multiple questions in jus ad bellum: whether a state has a right to self-defense against a nonstate actor when the latter’s conduct has not been attributed to another state, what qualifies as an “imminent” armed attack, and whether India is explicitly endorsing the unable-or-unwilling test for the use of force in self-defense.
1. India claimed that it used force in self-defense against JeM, a nonstate actor, without attributing it to Pakistan.
The Indian statement begins by highlighting the bombing perpetrated by JeM, claiming that the Indian government is committed to “fight[ing] the menace of terrorism” and its response was a “non-military” strike “specifically targeted at the JeM camp.” The statement also clarifies that the choice of target was “conditioned by our desire to avoid civilian casualties.” While the statement posits that JeM’s facilities “could not have functioned without the knowledge of Pakistan authorities,” it stops short of attributing JeM’s actions to the state of Pakistan.
In analyzing India’s characterization of its aerial attack, it’s helpful to begin with the U.N. Charter. The Charter is an embodiment of the U.N.’s purpose of maintaining “international peace and security,” and as a member of the U.N., India is bound by its provisions. Article 2(4) of the Charter states that “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” The International Court of Justice (ICJ) has describedthis prohibition on the use of force as a “cornerstone of the United Nations Charter” (para. 148). The Charter also contains two exceptions to this prohibition: Chapter VII, which allows for the use of force following authorization by the Security Council, and Article 51, which recognizes a state’s “inherent right of individual or collective self-defence if an armed attack” occurs against it.
India’s statement seems to indicate that its aerial strike was a use of force in self-defense aimed not at Pakistan but at a nonstate actor operating within Pakistan. The legality of such a move is unclear; there is a debate about whether armed attacks by nonstate actors can trigger Charter Article 51, and the ICJ has stayed away from a definite ruling on the issue. In Democratic Republic of the Congo v. Uganda, the court stated that it had “no need” to decide “whether and under what conditions contemporary international law provides for a right of self-defence against large-scale attacks by irregular forces” (para. 147). The ICJ’s position has spawned much academicdebate.
However, significant state practice—especially post 9/11—seems to endorse such a right to self-defense. Israel used a similar argument when it attacked Hezbollah on Lebanese territory in 2006. (Catherine Bloom has examined the inherent difficulty of classifying Hezbollah.) The 2001 Authorization to Use Military Force (AUMF)recognized the American right of self-defense against the “organizations” and “persons” that committed the 9/11 terrorist attacks. Lawfare has covered the continued reliance of the U.S. on the 2001 and 2002 AUMFs—including for its operations against the Islamic State. Several other nations have characterized their military operations in Syria as acts of self-defense against the Islamic State and not aimed at Syria itself, deeming the Syrian government “unwilling or unable” to suppress the threat that the Islamic State posed (for examples, see letters from Australia and the U.K. to the Security Council).
Pakistan did not subscribe to India’s portrayal of the attack, claiming in a press releasethat India’s “act of aggression” violated Pakistan’s “sovereignty and territorial integrity”—language that invokes Article 2(4). However, neither any other state nor the U.N. has condemned India’s attacks from a legal perspective; France, instead, recognized their “legitimacy” in an official statement.
2. India invoked anticipatory self-defense based on an accumulated danger.
The Indian statement reminds readers that JeM has been “responsible of [sic] a series of terrorist attacks” on India, citing a 2001 attack on the Indian parliament and a 2016 attack on an air base. The statement also claims that India had “[c]redible intelligence” of another terrorist attack by JeM, and thus “[i]n the face of imminent danger, a preemptive strike became absolutely necessary.”
Even if one accepts that India has an Article 51 right to self-defense against a nonstate actor, that right hinges on an armed attack or imminent threat thereof. It is debatable whether the Feb. 14 suicide bombing could be deemed an “armed attack” by itself. The ICJ, in the Nicaragua case (para. 195), stated that any such inquiry must analyze the gravity, scale and effects of the attack. Christian Henderson has argued that, applying the Nicaragua standard, a one-off terrorist suicide bombing responsible for 40 deaths may not qualify as an armed attack. However, by referring to JeM’s “series of terrorist attacks,” India seems to be claiming that its right to self-defense (and the necessity and proportionality of its use of force) must be viewed in the light of JeM’s accumulated attacks against it. This is likely a reference to the accumulation-of-effects theory, under which the scale and effects of multiple attacks can add up to a single “armed attack.” In the Oil Platforms case between Iran and the United States, the ICJ possibly acknowledged the legitimacy of this theory when it ruled that “even taken cumulatively … these incidents do not seem to the Court to constitute an armed attack” (para. 192).
The reference to “imminent danger” suggests that India is making an additional argument under self-defense doctrine. The U.N. secretary-general’s office has recognized that “[i]mminent threats are fully covered by Article 51” (para. 124) and that the accumulation of attacks can also be relevant in supporting the likelihood of an imminent attack by the same source, as described in this 2018 report by the International Law Association (ILA) on the use of force.
However, there are different readings of the “imminence” threshold. The Caroline test, long considered the customary international law for gauging imminence and endorsed by the Nuremberg Tribunal, defined an imminent threat as one that was “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” After 9/11, the Bush administration endorsed a definition of imminence that was not so temporally restricted (see pp. 194–195 of this OLC memo). But this position did not gain much international support. As the ILA report notes and Tom Ruys has catalogued, several states—including Pakistan—are opposed to a temporal widening of imminence.
Regardless of the standard of imminence to which one holds India’s statement, it is difficult to reach a clear conclusion on the legitimacy of its claim because of uncertainty as to the underlying facts. Though the statement referred to “[c]redible intelligence” of another terrorist attack, it did not present—and has not presented since—any evidence corroborating this assertion.
3. India was not explicit regarding the “unable-or-unwilling” test.
In the statement, India explicitly points out that it has shared information regarding JeM training camps with Pakistan and “repeatedly urg[ed] Pakistan to take action” against JeM and other terrorist groups on its soil. India claims that, despite such knowledge and pleas, Pakistan has “taken no concrete action.”
With its language, India seems to be stating that, so far, Pakistan has been unwilling to act against JeM—bringing to mind the unable-or-unwilling test. This test is a doctrine of extraterritorial self-defense. It has been used by states that were the victim of armed attacks by nonstate actors with foreign bases, such as terrorist groups, to attack those nonstate actors—on foreign territory—if the host state has proven itself to be unable or unwilling to tackle the problem. The unable-or-unwilling test is extremely controversial and not universally accepted, partly because, as Mary Ellen O’Connell notes, “the terms do not appear in the UN Charter, the Charter negotiating history, or ICJ jurisprudence.” Moreover, there is no strong consensus on the definition of when a state can be deemed unable or unwilling, though Ashley Deeks has attempted to clarify the test in an article. Lawfare has published an overview of different states’ stances toward the test, but neither India nor Pakistan has made any explicit official statement indicating its stance one way or another.
India could have explicitly invoked what it viewed as Pakistan’s inability or unwillingness as a rationale for its aerial strikes, but it did not. This is in line with India’s previous reticence to endorse the unable-or-unwilling test as a legitimizing factor for any use of force while still subtly nodding to it. In 2016, after an attack by JeM on an Indian air base—referenced in the foreign secretary’s statement—India conducted attacks, which it labeled “surgical strikes,” on certain points along the Line of Control separating India- and Pakistan-controlled areas of Kashmir. India claimed that JeM terrorists were positioned at those points in order to carry out impending terrorist attacks on Indian soil. While describing that attack, India had pointed out Pakistan’s repeated unwillingness to tackle JeM but had stopped short of outright labeling its neighbor as “unable or unwilling” (in the way that Australia’s and the U.K.’s letters regarding Syria did). India ended both its 2016 briefing on the “surgical strikes” and its 2019 statement on the recent aerial attack by urging Pakistan to take action in the future to dismantle terrorist groups on its soil.
Even though the immediate conflict has de-escalated, tensions on the subcontinent remain high. On Feb. 27, a day after the initial aerial attack, India submitted a dossier to Pakistan detailing, among other things, JeM’s role in the Feb. 14 bombing and the locations of some of its training camps. One month later, on March 28, Pakistan responded by claiming that it had not found any camps at those locations and asking for more information connecting JeM to the Feb. 14 bombing. India has since expressed disappointment at Pakistan’s denial.
This episode was the first time since 1971 that India had used air power on Pakistani territory. Since then, both countries have developed sizable nuclear arsenals. Given the potential ramifications of any escalation, hopefully both India and Pakistan will exercise caution in the future.
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