Tit-for-Tat-for-Tit: The Indian and Pakistani Airstrikes and the Jus ad Bellum

Over the past few days there has been a flurry of confusing reports regarding military confrontations between India and Pakistan in the Kashmir region. It appears that in the early hours of 26 February Indian air force MiG-20s carried out air strikes in Pakistani territory in the small city of Balakot in response to a suicide bombing in Indian controlled Kashmir on 14 February which took the lives of over 40 Indian paramilitary soldiers and for which Pakistani based terror group Jaish-e-Mohammad (JeM) claimed responsibility. India claimed that it hit a JeM militant training camp during the strikes with a significant number of militant casualties, while Pakistan claimed that the Indian aircraft retreated after being confronted by the Pakistan Air Force, dropping four or five bombs in open field as they left across the border and which resulted in no causalities. While there have been several border skirmishes between the two states since they gained independence from Britain in 1947, this is the first time Indian military aircraft have carried out strikes across the ‘line of control’ since the war between them in 1971 which led to the creation of Bangladesh.

The following day Pakistan claimed to have carried out air strikes on ‘open ground’ within Indian territory, while India claimed that a military installation had been targeted. During an ensuing confrontation, Pakistan shot down an Indian Air Force MiG-21 jet which fell within Pakistani territory and led to the capture of the pilot. India has also claimed to have shot down a Pakistani fighter jet which had fallen on to the Pakistani side of the LoC. The US, EU, Russia and China have all called for restraint.

While clearly a dangerous development between two nuclear-armed states, with various accounts of underlying political motives for the clashes, and with shelling continuing across the LoC between them at the time of writing, it is, however, the legal justifications – or, rather, lack of – by both states for their strikes that will be the focus here.

In a statement on the day of the initial air strikes the Indian Foreign Secretary stated that ‘[c]redible intelligence was received that JeM was attempting another suicide terror attack’ and ‘[i]n the face of imminent danger, a preemptive strike became absolutely necessary’. Pre-emptive strikes are extremely controversial under international law, even those taken ‘in the face of imminent danger’, but it was surprising that India did not attempt to provide the strikes with as much legitimacy as possible by wrapping the justification up in the language of international law. For example, it is unclear why it decided to use a phrase as toxic as ‘preemptive strike’, and not, for example, ‘preemptive self-defence’. Indeed, India did not invoke the right of self-defence or Article 51 of the UN Charter at any point within its justification (although – somewhat oddly given the connotations the euphemism has with UN Security Council authorisation for forcible measures, which of course India had not received – India did claim that it was ‘firmly and resolutely committed to taking all necessary measures to fight the menace of terrorism’ (emphasis added)). 

There was, as such, no attempt to frame the suicide bombings as an ‘armed attack’, although in invoking self-defence states rarely classify the preceding attack in this way. There is, in any event, cause for doubt as to whether a non-state suicide bombing by itself could constitute an armed attack for the purposes of the right of self-defence. On the one hand, it might be argued that it simply does not possess the gravity, scale and effects that the International Court of Justice has seemed to require of such attacks (eg Nicaragua case, (1986) ICJ Reports 14, at paras 191 and 195), despite the fact that the suicide bombings were the deadliest to take place during the course of the insurgency against Indian rule in Kashmir over the past three decades. In addition, it is arguable that JeM, and terrorist groups in general, are not able to perpetrate armed attacks in the absence of their actions being attributable to a state.

Yet, on the other hand, it could be argued that the suicide bombings on 14 February should not be seen in isolation, but rather in the context of other attacks by the group as just the latest in a series of such attacks. Indeed, as the Indian Foreign Minister stated: ‘This organization, which is proscribed by the UN, has been responsible of [sic] a series of terrorist attacks including on the Indian Parliament in December 2001 and the Pathankot airbase in January 2016.’ This may be an implicit – or more likely unconscious – reference to the accumulation of events theory which provides that the gravity threshold for an armed attack may be met by accumulating the scale and effects of previous attacks. Again, while the ICJ has implicitly flirted with this idea (eg Nicaragua case, (1986) ICJ Reports 14, at para 231; Oil Platforms case, (2003) ICJ Reports 161, at para 64; Armed Activities case, (2005) ICJ Reports 168, at para 146), it remains underdeveloped and controversial. Even then, the balance may have been reset when India responded to the 2016 attacks through ‘surgical strikes’ on militants in Pakistani Kashmir.

However, and continuing the veiled or implicit nature of India’s justification, while it appeared to claim that the ‘preemptive strikes’ were justified on the basis of Pakistan being unable or unwilling to take the necessary action against JeM, it did not do so explicitly, but instead stated that

‘The existence of such massive training facilities capable of training hundreds of jihadis could not have functioned without the knowledge of Pakistan authorities … India has been repeatedly urging Pakistan to take action against the JeM to prevent jihadis from being trained and armed inside Pakistan. Pakistan has taken no concrete actions to dismantle the infrastructure of terrorism on its soil.’

While this was in a sense unusual, as states taking action in similar circumstances have often expressly invoked the ‘unable or unwilling’ incantation, the legality of taking action in such circumstances remains, nonetheless, controversial on several levels. Aside from whether such a doctrine can be said to have emerged, or at least be emerging and the practical difficulties in implementing such a doctrine, there has been significant debate as to how to legally rationalise the taking of self-defence in such circumstances. That is, whether we require attribution through ‘effective control’, attribution through a lower standard (such as ‘aiding and abetting’), or whether one attempts to rationalise the action on the customary criterion of necessity. Attribution of the suicide attacks to Pakistan would have meant that India would have been permitted to take direct military action against Pakistan itself, while if we attempt to rationalise such action on the basis of the customary criterion of necessity then India’s actions would have been limited to taking action specifically targeted against the non-state group, which appears to have been the case here. In this respect, while India was keen to call into question Pakistan’s culpability and due diligence for the existence and functioning of JeM, it did not seem to go as far as to attribute the attacks to Pakistan by emphasising that Pakistan’s military was not the target of the sorties.

If India had, as it stated, ‘credible evidence’ of a further ‘imminent’ attack – and the reality and credibility of evidence is often what these events turn on and even then there is no accepted standard of proof in this context – then this would be a factor in determining the necessity of the strikes. And even if there was credible evidence of a further ‘imminent’ attack, questions arise as to whether India was referring to the traditional and strictly defined temporal Caroline interpretation of imminence or the broader and more liberal one recently peddled by, in particular the US and UK, which is based more on contextual factors, such as the gravity of the anticipated attack and its mode of delivery. Yet, without this evidence – and India has so far failed to release further details regarding the evidence that it had – we are left with the prospect that it was unlawful reprisal action with the rather limited strike perhaps doing nothing to end the activities of JeM, raising question marks over their necessity on the one hand, but also their proportionality on the other, given that a proportionate defensive military response would arguably need to be of a greater magnitude to have any impact.

However, if India appeared to be making a veiled reference to a right of pre-emptive self-defence in its justification, Pakistan’s justification was also far from clear. While its Acting Foreign Secretary described India’s action as ‘aggression’ and ‘strongly condemned the Indian violation of Pakistan’s sovereignty and territorial integrity’, in justifying its response it stated that:

‘Pakistan Air Force undertook strikes across Line of Control from within Pakistani airspace. This was not a retaliation to continued Indian belligerence. Pakistan has therefore, taken strikes at non military target, [sic] avoiding human loss and collateral damage. Sole purpose being to demonstrate our right, will and capability for self defence. We have no intention of escalation, but are fully prepared to do so if forced into that paradigm. That is why we undertook the action with clear warning and in broad daylight … If India is striking at so called terrorist backers without a shred of evidence, we also retain reciprocal rights to retaliate against elements that enjoy Indian patronage while carrying out acts of terror in Pakistan.’

This does appear to be a more explicit claim to self-defence, albeit without also invoking Article 51 (although, of course, if we are to accept India’s implicit claim of self-defence, then Pakistan’s more explicit claim to self-defence cannot stand. There is, after all, no self-defence against self-defence). But in rather contradictory terms Pakistan also states that the strikes were ‘not a retaliation to continued Indian belligerence’, leaving the question as to what, exactly, they were in response to? Furthermore, what were the ‘elements that enjoy Indian patronage’ that were targeted, given that it stated that open fields were the targets of the strikes? Lastly, the fact that Pakistan repeatedly uses the term ‘retaliation’ provides an indication that the strikes were an unlawful and provocative reprisal – as opposed to defensive – action. Indeed, while Pakistan claimed that it ‘had no alternative to respond’ it also contradicted this apparent claim to necessity by also previously having stated that its response would be ‘at a time and place of its choosing’.

Finally, assuming that the underlying claim is that the strikes by both states were being legally justified as self-defence (and there is no other plausible explanation for them) they violated their Charter-based obligation of reporting them to the UN Security Council (Article 51, UN Charter (1945)), which leads to the further question of whether the UN will step in to take necessary measures to counter this clear threat to, or more appropriately breach of, international peace and security.

The situation continues to evolve and while both states have been eager to state that their actions are ‘non-military’ to avoid going ‘on the path of war’, we are now clearly in the realms of an international armed conflict, regardless as to whether one adopts a ‘first strike’ or ‘threshold’ approach to the applicability of IHL. This was only further confirmed with the capture by Pakistan of the Indian pilot, Abhinandan Varthaman, and its statement that it is treating him ‘as per norms of military ethics’, although which can be severely doubted with its brandishing of pictures and a video of him, something which India correctly claimed was ‘in violation of all norms of international humanitarian law’.