Article – India’s unilateral use of force: Pakistan’s protection under International Law
Barrister Nudrat B. Abdel-Majeed
Address: 5-J, Shabbir Road, Lahore, 54824, Pakistan
Phone: +92 42 3668 9738 (office) / +92 300 433 9147 (mobile)
On Tuesday, 26 February, 2019, Indian fighter jets crossed over into Pakistan’s sovereign territory. India’s ANI news agency quoted Indian Airforce sources as saying that Indian fighter jets had dropped 1,000 kg of bombs on militant camps. India’s foreign secretary, Vijay Gokhale said that raid targeted the largest training base of the terrorist group, Jaish-e-Mohammad and so “in the face of imminent danger, a pre-emptive strike became absolutely necessary.” According to him, the operation that eliminated a large number of terrorist, trainers and senior commanders was a non-military pre-emptive action in response to the menace of terrorism and not the Pakistani state. India’s human resource development minister, Prakash Javadekar tweeted “This was a necessary step for the defence of the country and Prime Minister Narendra Modi had given the armed forces a free hand.”
The International law implications of such armed unilateral actions are grave and they come right on the heel of the Jhadav case between India and Pakistan that just finished its second round of oral arguments at the International Court of Justice on 21 February, 2019. The issues in the Jhadav case on rights of consular access to nationals of another State under the Vienna Convention on Consular Relations, 1963 may have been the same in this case had Pakistan not made the magnanimous gesture in announcing release of the Indian Airforce pilot, Wing Commander Abhinandan, on 1st March, 2019. By doing so, Pakistan has also wisely protected itself from any possible attack under the Geneva Conventions on humanitarian treatment of prisoner-nationals of another state.
Despite the release of the pilot, this secret unilateral attack by India on sovereign territory raises a number of international law questions. India claimed that it acted on grounds of pre-emptive self-defence in the face of an imminent terrorist attack. There are, to-date, 19 international legal instruments to prevent terrorist acts that have been developed by the United Nation and related agencies. Whilst they are more particular in their scope (dealing with suppression of nuclear terrorism, financing of terrorism, taking of hostages etc.), it is the UN Charter that one immediately turns to for justification or lack thereof in acts such as this recent one of India’s, on the unilateral use of force.
Article 2(4) of the UN Charter has a ban on “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 U.N.” This encompasses acts outside war-time as well as during war and is an established rule of international law. It is, however, limited in its scope by the right of self-defence.
Article 51 of the United Nations Charter allows a general right to action by a State if motivated by self-defence. There are contrasting views on whether this right can be exercised in the absence of an armed attack. Article 51 “does not impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
Notwithstanding that India could invoke Article 51 of the UN Charter in its defence, Pakistan should act swiftly by reporting the incident and raising the issue before the Security Council since the paramount purpose of the UN is to maintain peace and security and to supress any acts of aggression or other breaches of peace (Article 1, UN Charter) and since there is no guarantee that even after Pakistan returning the Indian pilot safely to his homeland, India will not undertake similar, potentially catastrophic operations in the future.
Raising the issue before the Security Council may also lend support to Pakistan’s position in the Jhadav case (the judgment on which will come out in June 2019) by showing that Pakistan takes seriously its role in the comity of nations and upholds principles of international law,.
UN General Assembly Resolution 2625 deals with the principles of international law concerning friendly relations and co-operation among States in accordance with the UN Charter. It emphasises, in its preamble, amongst other points, (i) that States must strictly observe the obligation not to intervene in the affairs of another State since the practice of any form of intervention not only violates the spirit and letter of the Charter but also leads to the creation of situations which threaten international peace and security; and (ii) that it is the duty of States to refrain in their international relations from military, political, economic or any other form of coercion aimed against the political independence or territorial integrity of any State.
This is reiterated by UN General Assembly Resolution 3314 which adopted a unified definition of Aggression as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State or in any mother manner inconsistent with the Charter of the United Nations.” (Article 1). Article 3 of the Resolution elaborates that “bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State” qualifies as an act of aggression. Article 5 makes it is clear that “no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression.”
There are other relevant Resolutions e.g. the General Assembly Declaration 2131 on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty of 1965, the Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation among States in Accordance with the Charter of the United Nations of 1970 and the Definition of Aggression of 1974.
Pakistan has a strong position in international law to pursue this matter at the world’s dispute resolution forums. For even if one gave the benefit of doubt to India on the purpose of its violation i.e. to attack a terrorist training camp on grounds of pre-emptive self-defence, India still has violated international law norms and customary international law by unilaterally deciding to intervene in matters that are within the domestic jurisdiction of a State. Pakistan has been publicly vocal, both on the domestic plane and the international plane, on its stance against terrorism. Its own people and military have suffered from acts of terrorism in the last 20 years even more than its neighbouring countries so there is no doubt that it is in Pakistan’s own interest to root out terrorism as completely as it can and that it has, despite US criticism of ‘not doing enough’, undertaken a number of successful operations – at the cost of many brave and innocent lives – to reduce terrorism.
If India had intelligence on any covert terrorist training camp within Pakistan, it would have behooved it to have shared the intelligence with Pakistan in the interest of peace and security in the region. To have undertaken this unilateral use of force, it has sown the seeds of distrust and suspicion for its respect for international obligations and desire for regional peace. That has been reinforced in its stance to refuse dialogue despite the hand of friendship and peace extended by Pakistan’s Prime Minister, Imran Khan. Being a member of the UN upholding international law norms, India is bound to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of Pakistan. It has not done so and its foreign policy – as evidenced by its rejection to meet with the Pakistan Foreign Minister on two occasions in the last year – unfortunately does not seem to going in that direction either.
It is pointed out that UN General Assembly resolutions do not have intrinsic legal effects (Article 38 of the International Court of Justice (ICJ) Statute does not list the resolutions of the Security Council or the General Assembly as sources of international law nor does the UN Charter provide for such effect) but the ICJ has considered and made reference to the force and scope of binding effects of the General Assembly and Security Council resolutions. While General Assembly resolutions are recommendatory as regards external relations with Member States, the ICJ has given General Assembly resolutions an authorizing ‘pre-substantive’ effect which lay the ground for substantive effect leading to statements on principles of international law and acceptance of a practice which is sufficient to create legal obligations (opinio juris in international law). International practice has shown General Assembly resolutions to be more persuasive than simple statements of international political will. In its advisory opinion on the threat and use of nuclear weapons of 1996, the ICJ noted that General Assembly resolutions can provide evidence of a rule of international customary law.
On the force of these General Assembly Resolutions, Pakistan could argue for a legal determination under international law and move the UN Security Council to find that India has committed an act of aggression under Article 39 of the UN Charter.
Statements of facts from both sides are in total opposition. India has claimed over 300 casualties at the terrorist camp in Balakot in the KPK province of Pakistan. From the Pakistan side, the official statement is that there was no evidence of any casualties resulting therefrom. Social media accounts showing video interviews of local residents and doctors in nearby hospitals to the alleged attack site were seen as saying that other than a middle-aged man who was injured when the walls of his house collapsed and was treated for first aid, no other person was brought in with injuries resulting from the alleged terrorist camp bomb attack. Pakistan Army announced that there was no attack at all. On the contrary, the bomb was dropped when the Indian MiG was trying to escape the radar of the Pakistan Airforce pilot. It was then that it dropped its payload.
In addition to recourse of action available to Pakistan in international forums, there are also international law implications as regards bilateral agreements between the two countries. As between Pakistan and India specifically, there is no dearth of bilateral treaties and agreements that have been signed since Partition including the Karachi Agreement of 1949 establishing the cease-fire line in Kashmir which, later under the 1972 Simla Agreement, was converted into the Line of Control; the Indus Waters Treaty of 1960 which deals with water distribution; the 1991 India-Pakistan Non-Attack Agreement which is limited in scope to prohibiting attacks on works, installations containing dangerous forces, namely dams, dykes and nuclear generating stations (this Agreement expands the scope of Article 56 and 15 of the first and second protocols to the Geneva Convention); and the 1991 Non-Nuclear Aggression Agreement dealing with the use of nuclear armament in both countries and the 1999 Lahore Declaration addressing similar issues.
The 1972 Simla Agreement between Pakistan and India sets out that the principles and purposes of the Charter of the United Nations shall govern the relations between the two countries while stressing that “the prerequisite for reconciliation, good neighbourliness and durable peace between them is a commitment by both the countries to peaceful co-existence respect for each other’s territorial integrity and sovereignty and non-interference in each other’s internal affairs..” and that “in accordance with the Charter of the United Nations, they will refrain from the threat or use of force against the territorial integrity or political independence of each other.”
In addition, Bilateral Agreement No. 31419 between India and Pakistan on The Prevention of Air Space Violations and for Permitting over Flights and Landings by Military Aircraft is of utmost importance. This Agreement was signed at New Delhi on 6 April 1991 and registered by India on 15 December 1994.
Article 5 deals with communication between the Indian Airforce and Pakistan Airforce. If, as India has declared its fight is against terrorism and not against the State of Pakistan, it was bound under the Agreement to contact its Pakistani counterparts by “the quickest means of communications available. The Air Advisor shall be kept informed of such contacts. Matters of flight safety and urgent air operations should promptly be brought to the notice of the other side through the authorities designated by using the telephone line established between the Army Headquarters of the two countries.”
Article 6 allows combat aircraft (as defined in Article 2 of the Agreement) operating from the air bases close to border points to maintain a distance of 5 kms from each other’s airspace. Wing Commander Abhinandan’s plane was well beyond the 5 kms distance and well inside Pakistan airspace. Article 7 sets out that military aircraft may fly through each other’s airspace with the prior permission of the other country and subject to conditions. Both Pakistan and India have the sovereign right to specify additional conditions (other than those laid out in the Agreement) at short notice for flights of military aircraft through its airspace. India has openly breached this Agreement and even surpassed the violations of previous unilteral attacks in 2016 on the Pakistan side of the Kashmir Line of Control.
The fact that Wing Commander Abhinandan flew over 80 kms inside Pakistan territory gives rise to the possibility of radio exchanges between him and the Pakistan military and possible warnings given to the Indian Wing Commander. International press sees the violation as exposing the rudimentary capability of Pakistan air defences in their delayed response akin to the US attack in 2011 when American helicopters came into Abbottabad and alleged to have captured, killed and dumped-into-the-sea Osama bin Laden’s body ensuring that no one would ever be able to challenge the veracity of the event.
However, political history has shown that revelation of actual facts rarely coincide with events. Notwithstanding that the facts of what actually transpired in the early morning of Tuesday, 26 February, 2019 may or may not be revealed, Pakistan should be careful, measured and thorough in substantiating its stance on grounds of international law and considering international law protections afforded to it.