Assignment #2

Submitted by :

Rana Affan Ajmal

ROLL#:

F1F18BSCS0028

Instructor:

Prof. Shamroz Khan

Subject:

International Relations (IR)

Section:

BSCS-5A

University of Central Punjab

 India’s February 2019 Strike in Pakistani Territory:
International Relations

India-Pakistan border at Wagah (Source: Flickr/Shankar S.

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.
Jaishe-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 described this 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
academic debate.

However, significant state practice—especially post 9/11—seems to endorse such a right to

selfdefense. 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 selfdefense
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 release that
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.

Some Indians took to the streets, burning an effigy of Pakistan, after news of the air strikes broke

- India says it launched air strikes against militants in Pakistani territory, in a major
escalation of tensions between the two countries.The government said strikes targeted a
training camp of the Jaish-e-Mohammad (JeM) group in Balakot.
- Pakistan said its jets had forced back the Indian planes and denied there were any
casualties.
 - Relations between the countries were strained by a militant attack on Indian troops in
Kashmir earlier this month.

HOW HAS PAKISTAN RESPONDED?

Pakistan's army spokesman Major General Asif Ghafoor said the strikes caused no casualties. He
tweeted that Pakistani jets were scrambled and forced the Indian planes to make a "hasty
withdrawal", dropping their payload in an open area.

“Indian aircrafts intruded from Muzafarabad sector. Facing timely and effective response
from Pakistan Air Force released payload in haste while escaping which fell near Balakot.
No casualties or damage.”

Maj Gen Asif Ghafoor (@OfficialDGISPR) February 26, 2019

Pakistani Prime Minister Imran Khan later convened an urgent meeting of national security
chiefs and condemned "irresponsible Indian policy".

"ONCE AGAIN [THE] INDIAN GOVERNMENT HAS RESORTED TO A SELF-

SERVING, RECKLESS AND FICTITIOUS CLAIM," A STATEMENT ISSUED AFTER
THE MEETING SAID. "THIS ACTION HAS BEEN DONE FOR DOMESTIC
CONSUMPTION, BEING IN AN ELECTION ENVIRONMENT, PUTTING REGIONAL
PEACE AND STABILITY AT GRAVE RISK."

TENSIONS REACH A DANGEROUS LEVEL

The Indian air strikes that hit a target inside Pakistani territory have taken tensions to a dangerous
level.
In September 2016, an attack on an Indian army base in Uri created a similar situation when
Delhi decided to respond with so-called "surgical strikes”. India’s claims that they airdropped
special forces to destroy militant camps on the Pakistani side of Kashmir were found to be
largely exaggerated, but Indian troops did cross at several points along the Line of Control
(LoC), inflicting some casualties on Pakistani forces.
This time they have hit a target across the international border, inside Pakistani territory, at a
location where a training camp of Kashmiri militants is known to have existed for several years.
Pakistan's military has cordoned off the area and not even the local police are allowed in, so it
will be some time before details of the attack become known.
Also, Pakistani officials have been underplaying the severity of the incident by describing it as a
strike "across the LoC", not one across the international border. Pakistan has vowed to respond
but this may not go beyond diplomatic measures. However, as some observers point out, there
may be punitive attacks by militants against Indian forces in Kashmir "at an appropriate time".

A FINAL REVIEW
October 1947: First war between India and Pakistan over Kashmir just two months after they
become independent nations.

August 1965: The neighbors fight another brief war over Kashmir.

December 1971: India supports East Pakistan's bid to become independent. The Indian air force
conducts bombing raids inside Pakistan. The war ends with the creation of Bangladesh.

May 1999: Pakistani soldiers and militants occupy Indian military posts in Kargil mountains.
India launches air and ground strikes and the intruders are pushed back.

October 2001: A devastating attack on the state assembly in Indian-administered Kashmir kills
38. Two months later, an attack on the Indian parliament in Delhi leaves 14 dead.

November 2008: Co-ordinated attacks on Mumbai's main railway station, luxury hotels and a
Jewish cultural centre kill 166 people. India blames Pakistan-based group Lashkar-e-Taiba.

January 2016: Four-day attack on Indian air base in Pathankot leaves seven Indian soldiers and
six militants dead.

18 September 2016: Attack on army base in Uri in Indian-administered Kashmir kills 19

soldiers.

30 September 2016: India says it carried "surgical strikes" on militants in Pakistani Kashmir.
Islamabad denies strikes took place.