The recent attack on India in Uri, Jammu and Kashmir, is an act of war, however, because of the element of non-state actors vox populi terms it as terrorism. The choice of apparatus of attack, non-state actors, is careful result of understanding of the international legal order and its constitution post World War II, to deny the attribution of legal responsibility on a State which is supporting or fomenting these activities.
Should the series of attack on India for last 20 years be qualified as terrorism or an act of war? What is the normative principle therefor in international law? In this article these two questions are answered.
Law of War or International Humanitarian Law
The international law pertaining to armed conflict has two branches dealing therein as jus contra bellum and jus in bello. Jus contra bellum is codified under UN Charter, which can be termed as constituting document of international legal order. Jus contra bellum literally means law against war, therefore it prohibits use of force to be employed by state. The law that is applicable once the actual war or armed conflict breaks out is dealt by Jus in bello. It governs the behavior of individuals who are allowed to participate in warfare, combatant, and of those who do not, non-combatant. It is also called Law of War or International Humanitarian Law.
Jus contra bellum is codified in UN Charter which is only applicable on those entities which under international law are granted the status of Statehood. UN Charter as primary constitution of international legal order has created a system which is based on sovereign equality of States, which means only a body which has elements of Statehood, would be constituting international legal order as envisaged under UN charter.
Post World War II international community came together to constitute a world order in which States will have no freedom to resort to war or armed conflict for solving their dispute in international relations at their whim and fancy. Therefore, they devised a scheme of collective security system which is structurally etched in UN charter.
Principle of Non-Intervention
This resulted in States agreeing to give up their erstwhile privilege or freedom to use force in their international relations and is codified Art.2(4) UN, Charter. This is known as principle of non-use of force. The carving out of collective security system under UN charter rendered the privilege of States to resort to force in their international relations to a restricted right to self-defence, only if it fulfills the ingredients of Art.51, UN Charter.
A natural corollary of such international legal order based on State-centric system was de-recognition of colonies and all other entities which were not states, a principle that gave birth to the concept of right to self determination or self governance as codified under Art.73-74 read with Art.1(2) UN Charter. The principle of non-use of force was premised on the principle that territorial integrity or political independence of States are not be altered through use of force or even threat thereof by any other States, therefore, this norm is also called as principle of non-intervention.
Hence, international law became a system primarily concerned with States. However, other subject matters of international law, which are non-States, could only be result of treaty relation among States. For example, WTO, WIPO, Human Rights Council, etc., have their germination in treaties signed among States. Thus, international legal order as it stands today has States and Organisation as its main subject matter.
What is Terrorism?
With the coming into force of Rome Statute of International Criminal Court, international law now has jurisdiction over individuals too, which hitherto were exclusive domain of municipal law. A municipal law is that part of a territory over which a government has writ and those territory over which its writs cease to exist would constitute territory of other government. The writ is municipal law and territorial demarcation is Statehood.
The State-centric international legal order, pertaining to use of force, is germane to the very concept of non-state actors related to use of force, as under international law only State could use force in their international relations. In other words, principle of non-intervention in international relations led to the creation of intrumentalities by the states which were not on their official payroll, thus official linkage were denied which resulted in non-violation of principle of non-intervention or a plausible deniability of any obligation to be breached by a State employing such measures.
Soon such practices were recognised and loopholes were plugged as UNGA enunciated principle of friendly relations (UNGA Res. 2625) through a resolution to reinforce the principle of non-intervention and its various manifestation in international relations. This resolution mandated the states, among other things, to ensure that their territory is not used by miscreants for carrying out activity in the territory of other State which violates the principle of non-intervention.
In the above mentioned scheme of international legal order if some group of people who are outside the control of State decides to carry out use of force in other State’s territory, in principle, the state from whose territory such activity has emanated could not be held responsible. Hence, such act would not be an act of war or armed conflict as normatively only a State has the ability to wage war. Thus, any exchange of violence between two groups would not be war or armed conflict until both the groups are States. Thus, the term coined for all such acts, where belligerency does not involve or is not between or among States, is terrorism.
Sometime, it can be legitimate case of use of force, to be termed as terrorism, by individuals because they are genuinely outside the effective control of State. Nevertheless, if the acts of use of force are of the professional nature which displays the training and arming of such people by professionals, the act would not be terrorism, it should be an act of war.
Difference Between Act of War and Terrorism
To explain the distinction between act of war and terrorism through irregulars, one needs a case study of Taliban operating from the land of Pakistan and other India specific forces operating from the land of Pakistan. Taliban and its splinter groups operating from Pakistan are using its soil but they are not under their effective control as once they are asked by Pakistan to stop their activity against NATO in Afghanistan or come to peace talks with Afghan government, it was rejected by them, and any law enforcement or military action would result in action against Pakistan Armed Forces.
The American pressure has resulted in some action against those forces which were hurting their interest in Afghanistan. Thus, if those group against whom operation Zarb-e-Azb is being carried out if they act against Pakistan or Afghanistan it would be act of terrorism. If such irregular forces carry out violence against Afghanistan, it will not be a war, as party attacking Afghanistan is not State, since the requirement of an armed conflict to be termed as war is that both the parties should be States. But if those group which have access to military hardware, intelligence, funding, training, and sanctuary on the soil of Pakistan, there acts it should never be termed as terrorism, it is purely an act of war. Because these groups are instrumentality of State, and their acts are attributable to State.
Thus, in Uri the perpetrators may not be the member of regular armed forces of Pakistan but their acts are attributable thereto. Hence, Uri attack is an act of war and not terrorism. Instrumentality of act of war could be any so long as acts are attributable to the state under the international law of state responsibility. To conclude, if the instrumentality is not established it is act of terror, and if established it is act of war, irrespective of people representing state or non-state.
(This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same. Abhishek Mishra is an author of the book Indian Capital Market: Legal Regime and currently a PhD fellow at Albrecht Mendelssohn Bartholdy Graduate School of Law, University of Hamburg.)
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