Context

• India's evolving counterterrorism posture has increasingly embraced kinetic responses to threats emanating from across its borders.
• Operation Sindoor marks a significant manifestation of this shift, showcasing India’s willingness to engage in direct military actions, such as hot pursuits, against terrorist threats from Pakistan.
• However, beyond these military responses lies an underutilised arsenal: the strategic application of international law, or ‘lawfare.’
• This approach presents a formidable non-kinetic avenue to hold Pakistan accountable for its long-standing support of terrorism, complementing India’s military and diplomatic strategies.

The Case for Lawfare

• Lawfare involves the use of legal systems and principles to achieve strategic or political objectives.
• For India, lawfare offers an opportunity to systematically expose and counteract Pakistan’s sponsorship of terrorism within an international legal framework.
• Although India has pursued diplomatic avenues to highlight Pakistan’s role in cross-border terrorism, it has yet to fully exploit legal tools available under international conventions and treaties.
• These tools can amplify India’s case globally and increase pressure on Pakistan.

Exploiting Terrorism Conventions

• Central to this strategy is the effective use of existing international and regional terrorism-related conventions.
• Both India and Pakistan are signatories to several key legal instruments aimed at curbing terrorism.
• These include the SAARC Regional Convention on Suppression of Terrorism, the International Convention for the Suppression of the Financing of Terrorism (ICSFT), and the International Convention for the Suppression of Terrorist Bombings.
• These conventions impose clear obligations on signatories to criminalise terrorist acts, prosecute offenders, and, importantly, prevent the financing of terrorism.
• Article 2(1) of the ICSFT and Article 6 of the SAARC Additional Protocol explicitly classify terror financing as a crime and mandate state action to eradicate it.
• Despite these legal obligations, Pakistan has consistently abetted and funded terrorism, as evidenced by the 2008 Mumbai attacks and the more recent Pahalgam terror attack.
• India must, therefore, compile and present concrete, admissible evidence of Pakistan's violations in these and other incidents.
• International platforms such as the United Nations and regional forums must be used to publicise Pakistan’s non-compliance with its treaty obligations.
• A legally grounded narrative, backed by indisputable evidence, will serve to build credibility and garner international support, moving beyond political rhetoric to a more substantive legal indictment.

Taking the Fight to International Court of Justice and Legal Hurdles

• Taking the Fight to the International Court of Justice
  • A pivotal yet underutilised option is recourse to the International Court of Justice (ICJ).
  • Many terrorism conventions, including the ICSFT and the Terrorist Bombing Convention, contain compromissory clauses that confer jurisdiction to the ICJ to adjudicate disputes between state parties.
  • These clauses allow states to bypass traditional jurisdictional limitations that require mutual consent.
  • India has precedent in this arena: it successfully brought Pakistan to the ICJ in the Kulbhushan Jadhav case.
  • A similar approach could be taken by invoking violations under the ICSFT and other treaties, following the example of Ukraine, which used the ICSFT to bring a case against Russia.
• Legal and Strategic Hurdles
  • However, the path to legal redress is not without challenges. Notably, Pakistan has opted out of ICJ jurisdiction under the ICSFT, potentially limiting India’s ability to enforce a legal ruling.
  • Nonetheless, India can still file proceedings to highlight the issue and bring global attention to Pakistan’s conduct.
  • Paradoxically, India itself has placed a reservation on ICJ jurisdiction under the Terrorist Bombing Convention, while Pakistan has not.
  • This inconsistency could be resolved if India were to withdraw its reservation, thereby allowing it to initiate proceedings under this treaty.
  • Additionally, India must anticipate a restrictive interpretation of these conventions by the ICJ, as seen in the Ukraine v. Russia ruling.
  • To navigate this, India must assemble fool-proof evidence and possibly draw on dissenting opinions, such as that of Judge Hilary Charlesworth, to fortify its legal arguments.
  • Even if the case does not result in a favourable judgment, the process itself can be strategically valuable.
  • International litigation would help project India’s narrative globally and delegitimize Pakistan’s support for terrorism in the eyes of the international community. 

The Way Forward: Building Institutional Capacity for Lawfare

• For lawfare to become an effective tool of statecraft, India must invest in building institutional and legal capacity.
• This includes training diplomats and legal professionals in international law, creating inter-agency mechanisms to collect and preserve legal evidence, and incorporating lawfare into the country’s broader strategic planning.
• Ultimately, embedding international law within India’s foreign policy apparatus will enable more sophisticated and effective responses to cross-border threats.

Conclusion

• India’s battle against terrorism must not be confined to the battlefield or diplomatic chambers.
• International law provides a robust framework for confronting state-sponsored terrorism and presenting India’s case to the global community.
• By integrating lawfare into its strategic arsenal, India can enhance its legitimacy, pressure Pakistan through legal accountability, and mobilize broader international support.
• Operation Sindoor may have demonstrated India’s kinetic resolve, but the courtrooms of The Hague may prove equally critical in the long struggle against terrorism.