Why in the News?

India and Pakistan on 10^th May agreed to halt “all firing and military action” after several days of heightened tensions between the two nuclear-armed neighbours.

What’s in Today’s Article?

• Operation Sindoor (Legal Basis, Right to Self Defence, Necessity, Proportionality, Way Ahead)

Introduction

• In response to the Pahalgam massacre that claimed the lives of 26 civilians, India conducted precision military strikes against terrorist infrastructure in Pakistan and Pakistan-Occupied Kashmir (PoK) under “Operation Sindoor” .
• While India described its actions as “measured and non-escalatory,” Pakistan condemned them as a “blatant act of war.”
• The incident raises questions about the legality of India’s actions under international law and the evolving global doctrines governing state responses to cross-border terrorism.

Legal Basis for Use of Force

• The Role of Article 51 of the UN Charter
  • Article 2(4) of the UN Charter generally prohibits the use of force against any state’s territorial integrity or political independence.
  • However, Article 51 creates an exception, allowing states to exercise the right to self-defence following an “armed attack”.
• Role of ICJ
  • Though the UN Charter doesn’t clearly define what constitutes an “armed attack,” the International Court of Justice (ICJ) in the Nicaragua v. United States (1986) case interpreted it as “the most grave form of the use of force.”
• India’s stand
  • India’s Foreign Secretary did not explicitly invoke Article 51, but his description of the strikes as a response to the Pahalgam terror attack implicitly aligns with the right of self-defence.
  • Additionally, India informed 13 out of 15 members of the UN Security Council (UNSC) about its actions, adhering to procedural requirements.

Use of Right of Self-Defence Against Non-State Actors

• The UN Charter traditionally governs state conduct, complicating the application of self-defence against non-state actors like terrorist organizations.
• However, since the 9/11 attacks, several countries, led by the United States, have argued that Article 51 extends to military action against non-state actors operating from foreign territories.
• The ICJ, however, maintains a conservative view, asserting that such actions require clear state attribution.
• In this context, India attributed the Pahalgam massacre directly to “Pakistan-trained terrorists,” reinforcing its position under the state attribution requirement.

The “Unwilling or Unable” Doctrine

• An emerging legal concept, the “unwilling or unable” doctrine, allows states to use force against non-state actors operating from another state’s territory if that state cannot or will not neutralize the threat.
• The United States notably invoked this doctrine during its 2011 operation to kill Osama bin Laden in Pakistan and airstrikes against ISIS in Syria.
• While controversial, this doctrine is gaining traction. India, although cautious, has previously indicated support for this principle, particularly when host states fail to act against terror threats.
• During his briefing, India’s Foreign Secretary emphasized that Pakistan had taken “no demonstrable step” against terror infrastructure following the Pahalgam attack, indirectly invoking this doctrine to justify India’s actions.

Necessity and Proportionality in Military Strikes

• Customary international law requires that military responses meet the standards of necessity and proportionality.
  • Necessity: India justified the strikes as necessary to prevent further terrorist activities.
  • Proportionality: India’s strikes targeted only terrorist infrastructure, avoiding Pakistani military assets and civilian areas. This restraint aligns with the broader interpretation of proportionality that allows states to prevent future attacks.
• Legal experts have noted that India’s adherence to these principles strengthens the legitimacy of its actions under international law.

Way Ahead:

While a ceasefire agreement between India and Pakistan has been reached, its long-term viability remains uncertain. If tensions escalate, the UNSC may intervene, but the geopolitical interests and veto powers of permanent members could complicate any consensus.

For now, India’s military actions under “Operation Sindoor” set a significant precedent in the evolving landscape of international law concerning self-defence against terrorism.