It was not surprising that there was strong tacit approval at the international level of the surgical strike by India across the LoC. It served to once again reiterate the increasing acceptance of the inherent right of a nation to protect itself from armed attacks arising from outside its borders, whether the perpetrators are state or non-state actors. This flew in the face of those who termed the Indian action of self-defence as “aggression”. International law today is clear that every nation has the right to self-defence, extending to even the use of force. It has, therefore, become an exception to the natural and inherent right of nations to conduct their affairs without interference from external actors. The right to self-defence can be exercised under both customary international law and the UN Charter and has been resorted to even outside the aegis of the latter. The NATO air strikes during the Kosovo war of 1999 may serve as the best example.
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Under the UN Charter, a state can take recourse to Article 51 and use force when it becomes a victim of an armed attack. Though the term “armed attack” does not find mention in the UN Charter, state practice and opinion juris have evolved to fill the gap in international jurisprudence. There are two watershed developments that have articulated such a right of self-defence. The first was the decision of the ICJ in Nicaragua v. US (1986) and the second, the international response in the aftermath of the 9/11 attacks. In the former instance, the court opined that armed attack did not necessarily have to involve the regular army. It held that the “arming, equipping, financing and supplying” or “otherwise encouraging, supporting and aiding military and paramilitary activities” is a “breach” of a nation’s “obligation under customary international law not to intervene in the affairs of another state”. Faced with recurring instances of terrorist attacks like 9/11, the Bali bombing (2002), the Madrid train bombing (2004), the efficacy of the test laid down in the Nicaragua case to meet threats to national security have come under question. The judgement of Justices Kooojiaman and Simma of the ICJ, in Democratic Republic of Congo v. Uganda (2005), expanding the interpretation of self-defence, reflects this. The justices opined that nations have a right to self-defence against terrorist attacks emanating from the territory of a state, even when the state is not supporting such actions. It is sufficient that it is unable to control them.
State practice, a prerequisite to the creation of customary international law, also supports the acceptance of this wide interpretation of the right to self-defence.
The US bombing of a pharmaceutical company in Sudan in 1998 in response to attacks on its embassies in Kenya and Tanzania were justified under Article 51 of the UN. The right to self-defence got further implicit recognition when the criticism of Israel’s deployment of forces in response to the abduction of two officers, was largely of the disproportionate use of force rather than the right to use force.
Seen in this context, Pakistan’s training, financing, arming and allowing the use of its soil to launch terror attacks on India, and the three major attacks on India (in Pathankot, Pampore and Uri) this year alone, gave New Delhi the right to resort to self-defence. The Indian response too met the legal requirement of necessity and proportionality. The surgical strike was based on the evidence that terrorist organisations were preparing to attack major cities. The surgical strike was also targeted at terrorist outposts close to the border, specifically and carefully avoiding both civilian and military establishments. The surgical strike was restrained, limited in its objective and of such duration as to only prevent an attack on Indian soil, thus clearly meeting the legal requirements of the use of force.
In conclusion, it must be said that a state has the responsibility to both desist from organising, assisting or acquiescing in terrorist acts and has a duty to take steps to prevent the commission of terrorist acts. There are obligations laid down by both the General Assembly Resolution 2625 (XXV) and the UNSC Resolution 1373 (2001). It is time that Pakistan lived up to these obligations and if it does not, international law does not prevent India from taking action in defence of her citizens.