Expert Speak Raisina Debates
Published on Mar 11, 2019
The Balakot statement: Establishing a responsible India

The February 26, 2019 statement of India’s Foreign Secretary described the Balakot airstrikes as a “non-military preemptive action” against the Jaish-e-Mohammed (JeM), the terrorist outfit responsible for the Pulwama attack. The statement reasons that India’s “pre-emptive strike” was necessitated on the basis of “credible intelligence” of another imminent attack by the JeM, and condemned Pakistan for its failure to dismantle terrorist camps on its soil.

A brief reading of the statement reveals that it does more than simply explain India’s reasons for the strike; it also attempts to base the legality of New Delhi’s action within the framework of international law. In that regard, it shares certain similarities with Lt. Gen. Ranbir Singh’s statement on the 2016 surgical strikes, which were also in response to “credible and specific information” about suspected terrorist attacks against the country. Given the significance of official statements in international law, they indicate that India wishes to be seen as a responsible global power, which – unlike others – is willing to play by the rules of the game.

The UN Charter prohibits the “use of force” against the territorial integrity and political independence of any state

. Of the few recognised exceptions to this prohibition, one of them is self-defense and within it, exists a narrower subset of “preemptive” or “anticipatory” self-defense.

Every state has an inherent right to self-defense if an “armed attack” occurs against it

. What complicates the applicability of this provision in the present scenario is that the Pulwama attack was carried out by the JeM, which is a non-state actor.

Though Article 51 does not specify who the aggressor should be, it was understood to mean that the responsible actor was to be another state. This was the most logical interpretation of Article 51, since the Charter was framed at a time when nations were frequently at war.

In the 1986 Nicaragua case, the International Court of Justice (ICJ) recognised the right to self-defense against non-state actors for the first time. However, it was restricted by the condition that the non-state actor must have been sent “by or on behalf” of the state in whose territory the right of self-defense is being exercised. Fast-forwarding to the 2000s, countries increasingly found themselves facing threats from a new category of non-state actors, i.e. terrorists. Subsequently, the right of self-defense is now invoked in state practice against non-state actors, even if its lawfulness is yet to be clearly established. The UN Security Council Resolutions 1368 and 1373 have also recognised the right of self-defense against terrorism, with reference to the 9/11 terrorist attacks. In consonance with this new – albeit evolving – interpretation, India has rightly emphasised that the target of its “non-military” strike was the JeM for its terrorist activities, and not Pakistan’s military.

India has also addressed the requirements for carrying out a “pre-emptive strike”, which is defined as taking action to prevent or mitigate a presumed attack or use of force. The first is “necessity”, which says that the “need for self defense must be instant, overwhelming and leaving no choice of means, or moment of deliberation”.

Indian authorities had received credible intelligence that the JeM was planning suicide attacks in various parts of the country, thereby prompting swift action. The second condition of “proportionality” is also met by the Balakot operation as the targeted facility was in a “thick forest on a hilltop” and was selected with the desire to “avoid civilian casualties”.

New Delhi has, therefore, made meticulous efforts to ensure that its actions coexist with and complement existing rules of international law. Its bid to support this effort is demonstrated by its use of extant mechanisms, such as the UN 1267 Committee to sanction known terrorists, and by lobbying for the Financial Action Task Force (FATF) to blacklist Pakistan for its failure to curb terror financing. Its attempts to work out an agreeable framework for the Comprehensive Convention on International Terrorism (CCIT) establishes that it is seeking to set up a defined legal basis for the prosecution and extradition of terrorists.

India’s official statements for preserving the “rules based international order” have gained greater coinage in the past few years, particularly with reference to nations who derogate from the tenets of international law. Notable examples would include criticising China’s aggressive overtures in the South China Sea, to berating Pakistan for its treatment of IAF pilot, Abhinandan Varthaman, in violation of the Geneva Convention on Prisoners of War. India’s decision to bring the Jadhav case before the ICJ for a lawful resolution on the right of consular access, displays India’s faith in the international legal system and the primary judicial organ of the UN.

In this backdrop, it may be prudent for New Delhi to understand the value of adhering to binding international legal obligations such as the Indus Waters Treaty (IWT), and not seek to unilaterally revoke it as retaliation or punishment. The 1960 water distribution treaty, which allocates 20% share of the Indus water system to India, has had its share of critics and supporters. While supporters argue that the treaty is equitable and a significant diplomatic achievement, critics claim that the water allocation is lopsided and has impeded India from making full use of its share. Nonetheless, India must ensure that it works within the treaty’s conflict resolution mechanism to resolve any disputes on water sharing. Furthermore, since the treaty does not provide for unilateral revocation (much less as an act of retaliation) India should refrain from proceeding with it, as it will be perceived as a massive breach of an international obligation.

The IWT, considered as a successful instance of conflict resolution between two hostile neighbours, has stood the test of time and any changes to its status quo ought to be brought about in a lawful manner.

India has always supported international law and recognises the importance of aligning its statements and actions within its framework. As New Delhi’s heft in global politics grows, it will have to be even more mindful of its global legal obligations, especially since it has been projecting Pakistan as a ‘rogue’ nation. With this, India will not only earn the respect of other nations, but can also fulfill its ambition to become a responsible world power.

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Aarshi Tirkey

Aarshi Tirkey

Aarshi was an Associate Fellow with ORFs Strategic Studies Programme.

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