Shivang Agarwal, a 5th year B.A.LLB student of NALSAR University of Law, Hyderabad.

Introduction

In the wee hours of February 26, 2019, 12 Mirage 2000H fighters of the Indian Air Force (“IAF”) conducted a “non-military pre-emptive” air strike to eliminate key functionaries, trainers, terrorists etc. of Jaish-e-Mohammed (“JeM”) holed up in a training camp near the town of Balakot, s in the restive Khyber Pakhtunkhwaprovince of Pakistan. The air strikes and subsequent events which ensued have caused much international furore over legality, timing and purpose of the action. The air strikes can simply be construed as an example of the Indian state flexing its muscles in response to the suicide attack on a Central Reserve Police Force convoy in Pulwama district of Jammu & Kashmir. However, their legitimacy when assessed against the established international law norms and doctrines is debatable.

The air strikes presupposed a violation of the Pakistani airspace by the IAF in order to drop a payload of SPICE munitions over a madrassa. The target was selected on the basis of “credible intelligence” of imminent terrorist attacks on Indian soil by fidayeens which were being trained and indoctrinated in the targeted madrassa which also functioned as a JeM training facility. Thus, it would constitute a prima facie infringement of Article 2(4)of the Charter of the United Nations which proscribes the use or threat of use of force against the territorial integrity and political independence of any member state. However, the legal validity of the air strikes is further questioned upon by Article 51 of the UN Charter which confers a right of individual or collective self-defence to a member state or states against an armed attack. The terms “self-defence” and armed attack” are of utmost relevance as they dictate the application of the aforementioned Article to any conflict or military action.

At this juncture, it would be important to discuss the language of the statement released by the Ministry of External Affairs, India (“MoEF”) wherein they used terms like “pre-emptive strike” “non-military” etc. Thus, it is evident that the Indian Government has invoked the doctrine of anticipatory self-defence. Prior to the promulgation of the UN Charter, a right to anticipatory self-defence was given to states under customary international law. On the face of it, Article 51 which confers the right of self-defence to member states specifically employs the term “armed attack” instead of an anticipated attack thereby limiting the right to self-defence to the former. However, there is a long-standing controversy as to whether Article 51 excludes a right to anticipatory self-defence as multiple resolutions of the UN Security Council and judgements of the International Court of Justice extend the same to Article 51. In spite of the same, extensive state practice points towards acceptance of the view that a right to anticipatory self-defence exists irrespective of the text of the Article 51. The criterion for establishing an anticipatory defensive right was laid down in the Caroline case which involved preemptive military action by the British against insurgents on United States soil. The Secretary of State of the United States articulated that anticipatory self-defence should be limited to situations wherein the “necessity of self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” Moreover, he also propounded that any act of self-defence must not be “excessive” or “unreasonable” and must be fall

within the four corners of the necessities that justified such an action in the first place. These articulations later became transmuted into the requirements of “necessity” and “proportionality” and came to be widely accepted as principles of customary international law.

Applying the Caroline Test

The legality of the air strikes becomes dubious when assessed against the Caroline test which requires certainty or near certainty that an attack will occur in the near future. Firstly, The Indian government has not been able to adduce any credible evidence that establishes the imminence of an attack perpetrated by JeM. Secondly, the air strikes have largely been construed as retaliation to the

Pulwama attacks. The Caroline test does not call for the right to anticipatory self-defence to be employed as a retaliatory measure for an attack which has already taken place. Thirdly, the necessity of self-defence was neither instant nor the only option for the Indian government. It could have actively pursued non-invasive military measures or use diplomatic channels to stultify the activities of JeM as it has tried to do in the past.

Moreover, it is argued that the Caroline test has become archaic because the tools of warfare and nature of threats have evolved significantly. Destructive payloads coupled with modern delivery mechanisms and terrorism have changed threat perceptions throughout the world. All the major terrorist attacks which have occurred in the recent past suggest that it has become possible for non-state actors to plan and execute their nefarious schemes in secret without becoming visibly imminent. The state despite having credible information about these non-state actors cannot establish the immediacy or imminence of such attacks. Henceforth, the Caroline test no longer reflects new realities and should be ignored.

A More Persuasive Justification

After the 9/11 attacks, countries have slowly gravitated towards applying the law of self-defence towards non-state actors also. Resolution 1378 of the Security Council which provided legal backing to Operation Enduring Freedom against Al-Qaeda presupposes the application of Article 51 to non-state actors also. However, attacking non-state actors (who do not have sovereignty over their own territory) involves entering into the territory of another state, more often than not without its consent. This is a prima facie violation of the inalienable rights conferred to a state under international law. In order to resolve this contradiction, additional affirmative obligations have been imposed on states by Security Council resolutions which are binding instruments of international law. Resolution 1373 requires all member states to deny safe havens and prevent those who finance, plan, facilitate or commit terrorist attacks from using their respective territories for those purposes against other states. Henceforth, any state which does not appear to take substantial steps towards fulfilling the aforementioned obligations cannot insulate itself from possible military operations by the target state which involves a violation of the territorial sovereignty of the host state. In the absence of demonstrable and verifiable evidence that documents any concrete steps taken by Pakistan to dismantle jihadi infrastructures and inhibit radicalization, India can take recourse to resolution 1373 to justify the air strikes on the JeM camp. The air strikes are further legitimised by the spate of terrorist attacks which have taken place on Indian soil since 1999. Data collected by intelligence agencies and claims of acceptance of responsibility (such as the JeM coming forward to accept responsibility of the Pulwama attacks) show that these attacks have largely been attributable to handlers of JeM and other terrorist organisations operating from Pakistan. Thus, Pakistan’s failure to suppress recruitment, eliminate supply of weapons & funds, deny safe havens to wanted terrorists etc. presuppose its acquiescence to the same and does not preclude military action by India to deter possible attacks in the future. However, the MoEF has not chosen to invoke either Resolution 1378 or 1373 to justify the air strikes. Instead, it has used words like “pre-emptive” which raises suspicions about references being made to the American preemption doctrine developed by the Bush administration to justify the 2003 Iraq invasion. The American doctrine is not a part of established customary law and also does not distinguish between state actors and non-state actors. Henceforth, the justifications put forth by the Indian government leaves a lot to be desired. They should have incorporated established international norms regulating anticipatory self-defence rather than employing terms capable of multiple interpretations, many of which make the air strikes a questionable exercise.