Settling the India-Pakistan Impasse … At Last

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I am grateful for Christian Henderson’s careful, detailed post on the violent confrontation between India and Pakistan that began 26 February. By 3 March direct attacks between the neighbors had tapered off, in part owing to Pakistan’s release of the Indian Air Force pilot it detained after his jet crashed in Pakistan. On the Indian side of the border a harsh crack down continued against separatists — both those seeking accession to Pakistan and those seeking independence.

My own legal assessment of the direct attacks aligns with Christian’s suggestion that they constituted unlawful armed reprisals, not acts of lawful self-defense. (I discussed the prohibition on reprisals here in reference to the U.S., France, and UK’s air strikes on Syria last April.) Christian’s quote from Pakistan’s Acting Foreign Secretary was particularly revealing: Pakistan’s air strikes “[s]ole purpose being to demonstrate our right, will and capability for self defence.”

More proof could be offered, but the space is better used to note some points of difference between Christian and me and to suggest a way forward toward peace after 70 years of violence. In my view, India was the first to use force in clear violation of UN Charter Article 2(4). This serious violation committed against Pakistan just a few months before Indian national elections, could be the opening of a negotiated settlement of the conflict at the heart of the crisis, the dispute over Kashmir.

India’s initial attack on 26 February was announced as a “pre-emptive” strike following a 14 February suicide bombing attributed to Jaish-e-Mohammed (JeM) that killed at least 40 paramilitary troops in Indian-controlled Kashmir. JeM’s aim is to force India out of Kashmir. Following the bombing, India launched air strikes for the first time since 1971 on Pakistan proper. India also stepped up mortar attacks in Kashmir that reportedly killed 6 civilians and injured many more on the Pakistani side of the line. India also increased its repressive tactics against residents on its side of the Line of Control. Fayaz Bukhari and Abu Arquam Naqash, “India-Pakistan Border Quiet But Kashmir Tense Amid Militancy Crackdown”, 3 March 2019 Reuters.

Pakistani Prime Minister Imran Khan denied that Pakistan bears responsibility for JeM and pledged to investigate if credible evidence indicating otherwise could be provided. Instead, India bombed. It said the bombs landed in open fields, killing no one. Damage was done to the natural environment, something international lawyers often fail to add to the cost of military force. Prime Minister Khan called India’s attack “eco-terrorism”.

Christian points out that neither state invoked the UN Charter provision on the right to resort to force in self-defense in Article 51. He wonders whether India failed to do so with respect to JeM’s suicide bomb because Article 51 is triggered “if an armed attack occurs” and requires a state sponsor of the armed attack. He also wonders whether 40 paramilitary troops killed by JeM would meet the “gravity”, “scale” and “effects” characteristics of an armed attack that qualifies as an Article 51 attack as described by the ICJ in Nicaragua. It is not so much the armed attack provision that requires a state sponsor. It is the response against the territory of Pakistan that depends on the link of responsibility by Pakistan for JeM’s actions. Also, 40 killed is a significant attack, but it was also an isolated one, typical of terrorism. Lawful self-defense is restricted to halting and repelling on-going attacks. No near-time next attacks were in evidence.

As Christian notes, India made no public case of attribution to Pakistan of JeM’s actions. He indicates that India’s failure to focus on Pakistani military targets is revelatory. In Armed Activities in the Territory of the Congo, the ICJ held that Uganda had no right to attack Congo for the violent cross-border action of militant groups that Congo did not control. India may have a case against Pakistan for failure of due diligence in suppressing terrorist non-state actors. But it is a case at most for counter-measures, not military force.

Christian also analyzes the “accumulation of events” argument sometimes used to try to justify using force in self-defense after a serious of intermittent terrorist attacks. He mentions that the ICJ “flirted” with this way of viewing the significance of the triggering armed attack. Oscar Schachter and Louis Henkin both defended “accumulation of events”. Article 51 together with the general principle of necessity make it clear, however, that to exercise self-defense requires that the armed attack or attacks compel a military response to halt and repel. Intermittent terrorist acts require police work for effective suppression.

Finally, I would go farther than Christian in dismissing the “unable/unwilling” concept as having any legal validity. He says it is “often” invoked and may be developing toward a new rule of customary international law. Under unable/unwilling, India could presumably claim Pakistan has failed to prevent serious terrorist attacks on India, therefore, India has the legal right to resort to military force against it. Christian does note some of the practical problems impeding the reception of unable/unwilling in international law. He says the test of “attribution” incorporated in unable/unwilling is unclear. In my reading of the literature this new basis for justifying military force has been proposed to dilute or eliminate key conditions of lawful self-defense found in Article 51 and the general principles of necessity, proportionality, and attribution. These are replaced by the attacking state’s judgment that a target state has failed to prevent terrorist activity emanating from its soil.

Christian Tams, Dire Tladi, and I will soon publish, Self-Defence Against Non-State Actors, edited by Anne Peters and Christian Marxsen (Cambridge University Press, July 2019). We have spent the last several years analyzing the law relevant to the very sort of situation unfolding on the Sub-continent. The unable/unwilling proposal is discussed throughout the book. My section raises numerous concerns, even beyond those just mentioned. For example, the terms do not appear in the UN Charter, the Charter negotiating history, or ICJ jurisprudence. They were first used in the context of international law and military force apparently by the U.S. ambassador to the United Nations to support Israel’s hostage rescue operation at Entebbe, Uganda.

To somehow move the phrase from rescue into the law of self-defense, an initiative has been underway to generate sufficient state practice and opinio juris to create a new rule of customary international law. Whether express terms of the UN Charter can be modified in this way seems highly dubious, but, regardless, the effort has involved few states. Even if a new rule of customary international law could be generated, it would be void for derogation from jus cogens and general principles. By expanding the exception for self-defense and, thus the right to use force, “unable/unwilling” conflicts with the peremptory norm prohibiting the use of force. By eliminating the requirements of attribution, necessity, and proportionality, the concept also conflicts with principles inherent in the law, ones that like jus cogens that are not generated by customary law process.

In 2008, terrorists based in Pakistan, Lashkar-e-Taiba (LeT), carried out coordinated attacks at several sites in Mumbai that left 174 people dead. U.S. Secretary of State Condoleezza Rice flew to both India and Pakistan to defuse the crisis and prevent armed conflict. Secretary Rice took the message from India to Pakistan that Pakistan had special responsibility to take measures against groups implicated in the attacks in Mumbai. India complied with international law restrictions on resort to military force, opting for law enforcement measures instead. Those had success and trials continue in India and Pakistan of persons suspected of involvement. India’s response was all the more impressive given that the U.S. was itself in the midst of attacking Pakistan over 30 times in 2008 with drone-launched Hellfire missiles.

Changing course in 2019, India has triggered another round of killing and destruction and another incident that might only serve to further entrench the two sides in their opposing positions on title to Kashmir. India’s unjustified breach of Article 2(4) on February 26 is the gravest violation since 1971 when it last attacked Pakistan beyond Kashmir. That was before the two states acquired nuclear weapons.

This latest breach could lead in different directions. It might finally provide the wake-up call needed to revive long-stalled negotiations. In simplest terms, India has the better legal case for title to Kashmir, while Pakistan would likely win any popular referendum. In addition, however, Pakistan now has a legal case against India for violation of Article 2(4). Pakistan can offer to withdraw its claim for a more favorable position by India toward a final settlement on Kashmir — agreement, for example, on the Line of Control as the de jure, not just the de facto boundary. The final boundary delimitation could be left to the International Court of Justice, which would thereby add its imprimatur to the agreed division. A traditional UN peacekeeping unit to monitory the boundary has proven effectiveness. The agreement would need to incorporate mechanisms for human rights protections. Pro-independence Kashmiris need specific protection. And a plan for long-term peace should include joint law enforcement cooperation to suppress terrorism throughout the region.

India and Pakistan have charismatic leaders. These men have the ability to use that charisma to finally end the use of militarism to win votes. Changing mindsets will be a critical part of the chance for peace in Kashmir. A peace agreement of this magnitude could also be an accelerator among the many developments leading away from the long-dominant ideology of realism-militarism. If that ideology is to be replaced by respect for the rule of law, the law must be well understood and taught as clear and unequivocal in prohibiting the first resort to military force.

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Raj Krishna says

March 8, 2019

In this era of hyper nationalism, peace talk seams difficult. But, once the General Election is over in India one can expect a new foreign policy for Pakistan. However, if these Non-State Terrorism continues for long, negotiation between the 2 neighbor states will become impossible.

Mary Ellen O'Connell says

March 8, 2019

Dear Raj,

You are right to consider the election angle, and I agree with you that it is imperative to seek an effective approach to terrorism suppression. For many reasons ...

This comment from my colleague, Peter Wallensteen (Uppsala and Notre Dame), shared with his permission, also mentions the elections, as well as the extraordinary devastation of a nuclear exchange:

'Very well argued and an important contribution. I hope it can enter into the discussion.

I would add two things:

1. The comparison with the 2008 much graver bombing/shooting/killing event is important and illustrates that election dynamics do not necessary have to lead to this type of response by India (India had elections beginning April 2009, the attacks took place in late November 2008, i.e. within half a year of the attacks). India preferred a non-escalatory response then.
2. It is also necessary to stress the enormous consequences of a 'limited' nuclear war in South Asia also for the planet. There is a climatological study that came out a couple of years ago, demonstrating that it would lower the temperature of the planet as a whole by 1 degree C.

To this might add one more observation:
India's attack shows that nuclear deterrence is not working. According to the theory of deterrence this should not have been possible in the first place (for fear of a retaliatory strike, but Pakistani nuclear weapons did not deter) and second, it should have required an immediate response of the same kind from Pakistan (which did not happen) in order to demonstrate the credibility of its retaliatory capacity.'

Mary Ellen