An act of self-defence

India makes a successful case for surgical strikes to the world. Now government must address doubts within.

Written by Chinmaya R Gharekhan | Updated: October 10, 2016 1:12 pm
surgical strikes, india pakistan, strikes, pakistan terrorism, india attack pakistan, loc strikes, india strikes, questions on surgical strikes, international law, Un security council, defence, 2001 american afgan intervention, uri attack, baramulla firing, indian express opinion India’s surgical strike was carried out in the early hours of September 29.

According to current international law, there are only two scenarios in which armed intervention by one state in the territory of another is permitted: With the authorisation of the UN Security Council or in self-defence. All other use of force is illegal. The Security Council’s authorisation comes in the form of a resolution under Chapter VII of the Charter. Thus, the American intervention in Afghanistan in 2001 was legitimate since it had been approved by the Security Council whereas its invasion of Iraq in March 2003 was illegal since it did not have the UN’s endorsement.

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As for the right of self-defence, it has been strictly defined in Article 51 of the Charter. This right is available only in the event of an attack by another state. It cannot be invoked in anticipation of an attack.

India’s surgical strike carried out in the early hours of September 29 is justified on two counts. It was clearly an act of self-defence after the Uri attack; the Charter does not say the right of self-defence must be exercised within a prescribed time limit. Secondly, it was not legally speaking, an armed action in the territory of another state. After the partition of the Subcontinent, Pakistan signed a Standstill Agreement with the ruler of the state of Jammu and Kashmir. India did not sign this instrument. Pakistan launched an invasion of Kashmir despite having signed the Agreement. The ruler asked for India’s help, but India refused in the absence of the ruler concluding the Instrument of Accession with India. Only after he did so did India rush troops to repulse the invaders. Thus, India’s military action in 1947 and all subsequent such actions, including the one on September 29, were within our own territory and hence not a violation of international law.

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In an address on “India’s Foreign Policy” to the Indian Council of World Affairs on March 22, 1949, Prime Minister Nehru said about relations with Pakistan: “There is no doubt at all in my mind that it is inevitable for India and Pakistan to have close relations — very close relations sometime or the other in future, situated as we are, with all our past. We cannot really be just indifferent neighbours. We can either be rather hostile to one another or very friendly with one another. Ultimately, we can only be really friendly, whatever period of hostility may intervene in between”. Nehru’s conviction was understandable since he did not have to deal with another aggression by Pakistan after 1947-48.

What Nehru said in 1949 about hostility has been proved right. Unfortunately, his confidence that ultimately there have to be really good relations at some time in future has yet to be borne out after a 70-year history, mostly of hostility.

Many analysts have criticised the government’s “flip flop” policy towards Pakistan. Consistency is not necessarily a virtue in diplomacy; it might even indicate lack of adaptability to changing circumstances. Pakistan is consistent in its India policy; it is consistently hostile. But we, most of us anyway, genuinely wish for “non-hostile” relations with Pakistan. Hence, we need to be pragmatic, flexible and subtle in diplomacy. We also need to be realistic.

PM Modi was right to have tried the friendly approach by inviting Nawaz Sharif to his inauguration ceremony and also to drop in in Lahore to wish Sharif on his birthday. It is better to have tried and failed than not to have tried at all.

Many Pakistan watchers believe that Nawaz Sharif genuinely wants better relations with India. Well, so far, he has given no evidence that he is unhappy with the military’s anti-India stance.

There was also a question about the wisdom of raking up the Balochistan issue. The government must have thought through the possible consequences and the end result that it might have in mind. However, unlike J&K, Balochistan is not on the agenda of the UN Security Council.

It was Prime Minister Manmohan Singh who had agreed to bring Balochistan into the bilateral agenda at Sharm el-Sheikh. The government has been careful in not calling for secession or independence for the Baloch people which will not get support from any other country. “Bangladesh” cannot be repeated in Balochistan. Perhaps the government has another objective in mind. Focusing on the hazardous security situation in Balochistan as well as in Gilgit Baltistan might give China second thoughts on the China Pakistan Economic Corridor. At a minimum, it will slow down the pace of work on the Corridor. Already, China has asked Pakistan to ensure security for the projects which form part of the scheme.

The government’s campaign to diplomatically isolate Pakistan has succeeded at least beyond this writer’s expectations. In South Asia, Pakistan has been forced to postpone the SAARC summit. All other members of SAARC have condemned the Uri attack. Each of these countries has its own reasons for the decision. Nevertheless, the fact that they announced their non-participation so soon after India did suggests a solidarity with India. Internationally, all major powers have supported India. Pakistan’s effort to raise the issue in the Security Council has been rebuffed. Uri has had an impact the Pakistan establishment simply did not anticipate.

But this does not mean total isolation. Pakistan is a significant military power and has at least one reliable friend in China. The concern that some countries have expressed at the tensions and their advice to both countries to resume dialogue is legitimate and should not be taken as unfriendly to India. In this context, it is imperative for us to keep in close touch with those powers, not least with Russia.

Some political parties have expressed doubts about the army’s claim of having carried out the surgical strikes, quoting Pakistan’s denial as well as UN observers. We should dismiss the UN part of it since we do not recognise its jurisdiction. As for Pakistan, what else can one expect? The government is justified in not wanting to release the video of the operation. The Pakistan establishment is still smarting from 1971.

Releasing the video will add to their humiliation and make it impossible for them not to react in some fashion. Nevertheless, the government can and ought to take responsible politicians into confidence and arrange a private, confidential screening of the video to remove all doubts.

The writer is India’s former permanent representative at the UN, is adjunct senior fellow, Delhi Policy Group. Views are personal

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  1. S
    SubbuI
    Oct 10, 2016 at 5:08 am
    TRUTH IS BETTER YOU BAKHTS OF NALAYAK NMODI. FIRST UNDERSTAND WHAT IS THE WRITER TRY TO CONVEY.DON'T ABUSE HIM BECAUSE HIS NAME.(We don't know for sure this gentleman is Hindu or Muslim). LOOK OUT FOR A RAT AND GET LOST BEORE2019
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      Arvind
      Oct 10, 2016 at 5:39 am
      Another bhangi yapping here
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        Arvind
        Oct 10, 2016 at 5:39 am
        Bureaucrats and Diplomats and Lawyers are overstating their positions. Its really quite simple. India has a right to self defense 5 times over, Bombay, Pathankot, Uri, Parliament and many others. We are legally allowed to carry out strikes 20 times over. So lets not be carried away by the views of Babus, Lawyers and Diplomats. We have to defend our country and ensure that our people are not killed by terrorists from stan
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          Arvind
          Oct 10, 2016 at 5:26 pm
          Check again. This in no way alters the casualties of the Let and other groups terrorists killed on the line of control. People in stan are other country centric. They are more interested in Russia, China and the US. The Indian Army message is local and it has been delivered to the terror groups of stan and the ISI and the are the ones we are interested in. No country in the world has supported the internationalizing of the Kashmir issue by stan and no one has denied the right of India to self defense.
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            aggrieved indian
            Oct 10, 2016 at 12:15 am
            Mr Gharekhan.. please move over real quick... while you were paying back the Nehruhi dynasty , I a new India has emerged... much more self confidence and aggressive. As far as UN is concerned it was reduced to status of used toilet paper if the powerful nations... So it's fade into retirement please Mr Gharekan... we neither need you nor your comment... baju hut.... move aside please
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              Bhagwat Goel
              Oct 10, 2016 at 4:10 am
              WHO IS THIS GHADEKHAN TALKING LIKE TRAITOR WITH FLOWERY ARGUEMENTS? SHOULD BE PUT BEHIND THE BARS TRYING TO UNDERMINE ONGOING WAR EFFORT.
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                Devendra Nagar
                Oct 10, 2016 at 4:06 pm
                Even selected political leaders should be shown video under oath of secrecy as the political stuff has tendency to fall to lowest level at an earliest opportunity.
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                  Sriniwasan
                  Oct 10, 2016 at 5:23 am
                  I agree to the former Indian UN Official views partly.However,what I am unable to understand is the views of the Indian Political Cl including the FO Babus.while we have a parliament resolution of 1994 which is unanimously ped stating that the entire JandK belongs to the Union of India and yet time and again Indian has been unable to enforce the resolution and hit itself in the foot,by saying that LOC is inviolable.lt;br/gt;Why this contradiction and this itself smacks of Indian political duplicity while dealing with stan?
                  Reply
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