Military encounters, cross border firing and claims of terrorist movement across the Line of Control (LoC) have been a regular feature of contemporary Indo-Pak relations. However, on the 29th of September 2016, the Indian military conducted a series of surgical strikes against military launch pads, allegedly used by terrorists to infiltrate into Indian territory and claimed, according to the Indians, the lives of at least 38 terrorists. The operation stands out as an unprecedented aggressive and clinical move targeted towards terrorists which India accuses Pakistan of harbouring. While the surgical strikes’ impact on the future politics and diplomacy of the neighbouring states has been widely debated, little attention has been devoted to the analysis of the attacks within the existing and evolving contours of international law on the use of force against non-state actors. In the above context, this article argues that the surgical strikes of September 2016 not only constitute a legitimate use of force by India, but also contribute crucial state practice to the nascent customary international norms regarding the right of self-defence against terrorists and non-state actors. The following paragraphs discuss the evolution of customary international law on the issue and highlight how the surgical strikes provide both a politically and legally significant example from South Asia.
THE EVOLVING CONTOURS OF SELF DEFENCE
Questions regarding the ‘threat or use of force’ have historically been key concerns of international law and the United Nations framework. Article 2(4) of the UN Charter requires Member States to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. However, Article 51 recognises the inherent right of self-defence, upon the incidence of an armed attack, thereby allowing states to use force in such circumstances. These two foundational principles have been widely accepted as norms of customary international law, evidenced by widespread state practice, constituting legally binding international obligations. In the case of Nicaragua vs United States 1986, for instance, the International Court of Justice described “outlawing the use of force in international relations”, as a fundamental principle common to both the UN Charter and customary international law. In the same case, the Court identified self-defence as a “natural” or “inherent” right that was customary in nature, codified in the UN Charter. However, the determination of the parameters of the right to use force in self-defence has seen much historical evolution. This normative dynamism may perhaps be appreciated in the context of global terrorist groups, particularly non-state actors, which not only provide complex normative challenges to international law, but also threaten the sovereignty of modern states.
Traditionally, the right of self-defence was understood in a restrictive manner, which operated only upon an armed attack by another state. The International Court of Justice has referred to this crucial limiting qualification in several instances, most prominently in Nicaragua vs United States 1986. In order to exercise force in self-defence, the belligerent non-state actor must have been under the ‘effective control’ of the state upon whose sovereign territory force was to be applied. The underlying idea was to incorporate an element of state responsibility as a prerequisite to a victim states’ use of force in self-defence.
The advent of modern terrorism changed the perception of threats from non-state actors. Groups such as Al-Qaeda and ISIS who operated from failed states such as Afghanistan and Syria grew increasingly organised and capable of large scale attacks with a global outreach. The 9/11 attacks fundamentally challenged the idea that only states could launch armed attacks of the scale that legitimised use of force in self-defence, as the international community sought to reconsider the norms that bound them. Criticising the attacks and recognising an inherent right of self-defence under the UN Charter, the Security Council Resolution 1368 elucidated the international community’s support of a normative reconfiguration, which appeared to affirm the American right to self-defence despite Al-Qaeda being a non-state actor. The ineffectiveness of the ‘effective control’ test in light of modern terrorism saw the evolution of the ‘unable and unwilling’ principle. Though an apparent departure from international precedent, this principle was justified by existing international authorities. The ICJ in the 1949 Corfu Channel case referred to a positive obligation on states to ensure that their territory was ‘not used for acts contrary to the rights of other states’. This principle was perhaps at the heart of the Security Council Resolution 1373 which, in the context of the 9/11 attacks, prohibited states from using their territories as safe havens for terrorists. The ‘unable and unwilling test’ would possibly legitimise the use of force in self-defence against such states.
Despite the above developments, the ICJ’s observations in the Advisory Opinion on the Wall, and Armed Activities in the Congo case appeared to depart from the emerging norm of self-defence and attribution of state responsibility, the ‘unable and unwilling’ test. In the Advisory Opinion on the Wall, the ICJ found that a right to self-defence existed only in case of “armed attack by one state against another state”. Because Israel did not claim that the attacks against it were “imputable to a foreign state”, it had no right to self-defence under international law. In Armed Activities in the Congo, the ICJ rejected the Ugandan claim of self-defence against the Democratic Republic of Congo (DRC). It observed that the armed attacks in question came from the rebel group, the Allied Defence Forces, and insufficient evidence of direct or indirect involvement of the Government of DRC. Thus, the ICJ held that the attacks were non-attributable to the DRC. In this manner, the ICJ ostensibly reverted to the traditional restrictive approach, requiring the state attribution of an armed attack by a non-state actor in order to invoke a right of self-defence. These developments were criticised in the separate opinions of Judge Higgins and Simma as regressions in the development of international law. The contemporary position affirming the ‘unable and unwilling test’ was finally settled with the American military action against the ISIS in Syria in 2015. While Security Council Resolution 2249 called for the eradication of the safe haven in Syria, it did not by itself refer to a legal authorisation of the use of force in Syria. However, viewed in conjunction with the international support for the Resolution backed by military action, it reaffirmed the rapid evolution of international legal norms responding to the threat of modern terrorism. In this manner, the ‘unable and unwilling’ test emerged with outstanding speed as the contemporary standard of customary legal norms governing the use of force in self-defence against non-state actors.
SURGICAL STRIKES: SELF DEFENCE WITHIN EVOLVING NORMS
The significance of the Indian surgical strikes must be understood in light of the above discussion on evolving norms of extraterritorial use of force in self-defence against terrorists.
Firstly, it appears that a longstanding Indian claim of an underlying nexus between terrorist groups and the Pakistani military establishment may no longer be important to justify a cross border Indian attack. The requirement of establishing an institutional nexus between the state and non-state actors is central to an argument that seeks to attribute an armed attack by the latter to the former. As discussed above, a state may be deemed as an author of an armed attack by a non-state entity if the state exercised ‘effective control’ over the actions of such an entity. However, the attribution of state authorship to an armed attack is crucial only if the right to use force in self-defence is interpreted in a narrow, restrictive manner. Therefore, as international law evolves beyond the strict requirement of state attribution to the ‘unable and unwilling test’, the use of force in self-defence by India need not be founded upon Pakistani state responsibility due to its alleged nexus with terror groups.
Secondly, under the emerging customary status of the ‘unable and unwilling’ test, India has the right to use force in self-defence based on Pakistani inability or failure to prevent its territory from being a safe haven for terrorists. This is perhaps India’s strongest argument not only to justify the strikes, but also to legitimately sanction further use of force against terrorists in Pakistan.
Thirdly, these strikes raise important questions with regard to the issue of ‘anticipatory’ self-defence. In the context of post 9/11 anti-terror policy, an expanded form of ‘preventive’ self-defence appeared, which sought to invoke self-defence without evidence of imminent threat of attack, arguing that terrorist groups constituted a continuing threat to the state, and therefore the possibility of attack must be seen as always imminent. However, it is pertinent to note that neither state practice nor jurisprudence provides a clear answer to whether the right of self-defence may be invoked once an armed attack has begun or when a State is threatened with such an attack. While the Indian experience of periodic terror strikes across the country may appear to suit this normative expansion, there is little evidence of this having acquired the status of customary international law. Given the above normative indeterminacy, it may be argued that the Indian surgical strikes fall under a legal grey zone. Some scholars have proven the existence of significant state practice exclusively with regard to non-state actors, that contemplates a right to pre-emptive attacks in cases of continuing conflict punctuated by intermittent violence without formal declaration of hostilities. Others, acknowledging the normative indeterminacy, have proposed a strict scrutiny approach, under a permissive interpretation of anticipatory self-defence. While such an approach allows a state to take anticipatory action against a non-state actor, it requires the state executive authority to elucidate the appropriateness of such use of force based on relevant and viable intelligence. In this context, according to the Army press release after the strikes, India appears to have positioned itself well within the norm of ‘anticipatory’ self-defence, stating that the attacks were directed “based on very credible and specific information”, that “terrorist teams had positioned themselves at launch pads”, “with an aim to carry out infiltration and terrorist strikes” across the country. Given the lack of a settled position of international law, such a conclusion is always open to debate and criticism
Finally, the legitimacy requirement/criterion of the surgical strikes has not been met with the expected political outcry for several underlying reasons. A crucial reason for this is perhaps the conformity of the strikes to several limitations that international law imposes on states, in order to prevent the abuse of the right to use force in self-defence. First, the surgical strikes were targeted specifically at the non-state actors, and to that extent did not significantly harm state interests. Though Pakistan claims the death of two of its soldiers, it denies the surgical strike altogether, maintaining the cause of death to be ordinary cross border firing. Second, the surgical strikes complied with international norms of proportionality during armed conflict. Proportionality is a key element of jus in bello, which seeks to balance the often-dichotomous objectives of military goals and cost in terms of human lives. Finally the Pakistani denial altogether has to a large extent precluded public debate on the question of legality of the surgical strikes India claims.
The Indian attack of 29th September 2016 provides not only a politically significant event in Indo-Pak relations, but also a relevant event to the development of international norms governing the use of force against non-state entities. While India as an object of international law may justify its action within emerging customs, as a subject of international law, Indian state-practice provides crucial legitimacy to the evolution of nascent norms on ‘use of force’. Its contribution as a major South Asian actor must be viewed as globally significant in the determination of the normative status of the ‘unable and unwilling’ test and the evolving right to use force in self-defence against non-state actors.