Legality of India's pre-emptive surgical strike in PoK

India's claim of conducting surgical strikes on the terror launch pads in Pakistan-occupied-Kashmir (PoK) has invoked mixed response from different quarters. Even though Pakistan and the UN mission monitoring the ceasefire on the Line of Control (LoC) have officially denied the occurrence of such an incident, no one has so far questioned its legality. On October 4, the Russian Ambassador to India has supported India’s attack by stating that it has the right to self-defense. All this gives out an impression that such attacks are legally viable under international law. This article attempts to examine the legality of such self-defense through pre-emptive surgical strikes under international law and analyses whether India's action on September 29 was within its limit.

The details of the September 29 attack are best revealed by the statement made by Indian Army. A relevant portion of the statement reads as below.

“Based on very specific and credible information, we have received that some terrorist teams have positioned themselves at launch pads along the Line of Control with an aim to carry out infiltration and terrorist strikes inside Jammu and Kashmir and various other metros in our country. The Indian Army conducted surgical strikes last night at these launch pads. The operations were focused on ensuring that these terrorists do not succeed in their design of infiltration and carrying out destruction, endangering the lives of the citizens of our country.”

This very well composed statement outlines the attack as a pre-emptive surgical strike for self-defense made on the basis of very specific and credible information to prevent the imminent attack on Indian cities. Proving each one of these points is pertinent for India to claim legality of the attack.

Right of self-defense: The right of states to use military force is restricted to self-defence under the UN Charter. Article 51 of the UN Charter recognises the rights of states for self-defense and specifically mentions self-defence against an armed attack as a legitimate use of force that does not require any authorisation from the Security Council. This authorisation is normally used when there is no immediate alternate remedy available—like the immediate support from the Security Council.

Legality of attack on terrorist launch pads: It is also important to note that the right of self-defence mentioned under Article 51 does not stipulate any particular types of aggressors and does not limit the right of self-defense to attacks by states alone. It could be exercised against the non-state actors, especially terrorists. This is substantiated by the Security Council resolutions 1368 (2001) and 1373 (2001). Hence India’s action in attacking the terrorist camps are justified. However, the International Court of Justice (ICJ), in its advisory opinion on legal consequences of the construction of a wall in the occupied Palestinian territory, differed on this point and opined that Article 51 of the Charter recognises existence of an inherent right of self-defence only in the cases of armed attack by one state against another state. The ICJ's justification, in this case, was given considering the fact that Israel does not recognise Palestine and the attacks against it are not imputable to a foreign state. Another reasoning ICJ projected was that Israel exercises control over the territory from where the threat emanates and hence the threat originates within the territory, not from outside. In the present Indian scenario, even though India does not recognise PoK, it does accept the LoC. Also, unlike Israel, India does not exercise control over PoK. This effectively vitiates the effect of this advisory opinion on the present case.

Right to pre-emptive surgical strikes: The text of Article 51 does not speak on any scope of pre-emptive attack as employed by India before the real attack happens from the other side. However, customary international law has many a time recognised (however with criticisms) the right to use armed force pre-emptively for self-defense even without actual attack from the other side if it is evidenced by noticeable preparations for offensive military action. In such cases, 'the necessity of self-defense should be instant, overwhelming, and leaving no choice of means, and no moment of deliberation' and the force used is proportional to the actual attack (the Caroline criteria- based on an 1837 US-UK dispute).

It is important to note that traditionally considerable difference has been made between pre-emptive attack and preventive attack, with the later being not considered legal under the customary international law. Pre-emptive war is defined as a situation where a would-be aggressor has exhibited sufficient hostile act; that suggests an intent to imminent attack accompanied by military preparation that makes the intent a "positive danger". The preventive war, by contrast, is to prevent a possible future threat without any imminent threat or vulnerability. It has been far enough removed as it is largely hypothetical rather than clear and present. However, there is a paradigm shift in this differentiation after the 9/11 when the US officially incorporated preventive action, or anticipatory self-defense into US strategic doctrine through its National Security Strategy in 2002. Two major justifications for this dilution in the customary practice are possession of weapons of mass destruction and action against terrorist groups who attack without warning and inflict grievous harm. This strategy was put into practice by George W. Bush administration in the subsequent war in Iraq.

The evidence on previous attacks in the military camps in Pathankot and Uri, and the failure of India and Pakistan in diplomatically negotiating such attacks show that the act is overwhelming, leaving no choice of means and no moment of deliberation but to pre-emptively take out the terror launch pads. The attack in Baramulla immediately after the surgical strikes further support the fact that India's operation was indeed pre-emptive and not preventive. As the strike was surgical with low collateral damage, it is proved that the force used is proportional to the attack preempted.

The importance of specific and credible information: This would be the most difficult part for India—to prove that the information on which they acted was credible. So far, the evidence given by the Indian side on the terrorist attacks were refuted by Pakistan. History has examples like the pre-emptive attack on Saddam’s Iraq by US and its allies on the basis of information on stockpiles of weapons of mass destruction, which later turned out to be false. This could favour Pakistan in arguing that there are no terror launch pads in PoK as claimed by India, and in alleging that India’s act was nothing but another violation of the LoC. The remedy for India on this point remains with its diplomatic agility to convince the world that its action was based on the specific and credible information.

Dr Sanoj Rajan is an academician specialising in International Law and Human Rights. He is a professor and dean at the School of Law, Ansal University, Gurgaon and an affiliate expert with Harvard Humanitarian Initiative at Harvard University, Massachusetts, USA.