MEA Air Strikes Briefing Ticks All Boxes Under International Law
At a press briefing at 11:30 am, the Ministry of External Affairs confirmed that India had conducted air strikes against a Jaish-e-Mohammad camp in Balakot in the early hours of Tuesday, 26 February. Foreign Secretary Vijay Gokhale read out the official statement of the MEA, saying:
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The statement is being rightly applauded for being crisp, clear and carefully worded. This goes beyond the cool-headed delivery of Gokhale and the absence of inflammatory language in the statement – the statement is also perfectly crafted to justify India’s actions under international law, while also giving Pakistan non-military options for raising objections without losing face.
The Use of Force in International Law
International law is often vague and uncertain, but there is one rule of international law that is set in stone: You cannot use force against another country in its own territory.
Article 2(4) of the Charter of the United Nations spells out the prohibition against the use of force as follows:
Any attack by one country on the territory of another country, regardless of the target or the casualties/damage, violates this prohibition. Technically, an air strike conducted by India on Pakistani soil without Pakistan’s consent, would be an infringement of Article 2(4), even if it were against terrorist targets.
Of course, the prohibition of use of force cannot be a blanket one, and the UN Charter expressly recognises a country’s right of self-defence. Article 51 says that no other provision of the Charter shall “impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.”
Key Phrase: ‘Preemptive Strike’
The Pulwama attack may seem an obvious candidate for being considered an “armed attack,” which could make the air strikes an act of self-defence, but it’s not quite as simple as that. India would have to prove Pakistan conducted the attack, or allowed it to happen, which is difficult to do given the way organisations like the JeM operate, and has been expressly denied by Pakistan Prime Minister Imran Khan.
The Indian statement strategically avoids this minefield, and instead relies on the doctrine of preemptive self-defence to justify the air strikes.
The doctrine of preemptive self-defence states a nation can act in self-defence before an armed attack takes place against them, provided they can show there was a necessity to act which was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
This test is derived from the Caroline affair in 1837, when British forces from Canada attacked a US ship in US territory, because it was being used to support rebels against the British. The British justified the attack as preemptive self-defence, but the US claimed this could only apply when the above test was satisfied.
While there are those who claim Article 51 of the UN Charter doesn’t recognise the right of preemptive self-defence, state practice from the Nuremberg Tribunals to Israel’s air strikes in the Six Days War indicate it has become part of customary international law, and this has been acknowledged by many scholars and jurists.
This is why India’s statement says:
Necessity and Proportionality
To rely on the doctrine of preemptive self-defence, it is essential to show two things:
- The use of force was necessary, ie, there was an imminent threat which could not be addressed in any other way.
- The force was used in a proportional manner, ie, the response was not excessive.
The MEA statement clearly establishes both of these things as well.
First, it takes pains to point out how the JeM has been responsible for multiple major terrorist incidents, including the suicide terror attack on CRPF jawans in Pulwama on 14 February, the Parliament attack in December 2001, and the attack the Pathankot airbase in January 2016.
It is then clarified that “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.”
This is important since it shows that if India had informed Pakistan about the JeM camp in Balakot and our concerns about it, this would not have led to any action. This satisfies the ‘Caroline test’ as India was left with “no choice of means” when faced with a threat from the JeM except an attack by Indian forces.
Second, the MEA statement notes that India had “credible intelligence” that the JeM was going to attempt another suicide attack similar to Pulwama in other parts of the country, and that “fidayeen jihadis were being trained for this purpose.”
This is important since it allows us to claim there was an imminent danger that satisfies the ‘Caroline test’ for necessity being “instant” and “overwhelming”.
Third, the MEA statement explains how the air strikes were proportional as they was conducted in a way to avoid collateral damage.
The statement claims that the air strikes eliminated several “JeM terrorists, trainers, senior commanders and groups of jihadis,” all of which would be valid targets. The strategic value of the strikes was also emphasised by noting that the camp was headed by Maulana Yousuf Azhar, the brother-in-law of JeM chief Masood Azhar.
Using the term “non-military” also helped clarify that this was not an attack against Pakistani forces, but terrorists, which makes it tougher for Pakistan to protest the attack.
Pakistan Given Face-Saving Options
One of the potential risks of launching air strikes like this is that Pakistan would have no choice but to retaliate. However, by rolling out the doctrine of preemptive self-defence in the MEA statement, this gives Pakistan the choice of making this a technical dispute in the UN Security Council or the International Court of Justice over whether or not India’s actions are justified in international law.
This allows them to issue a stern response (their foreign minister has already termed it a “grave aggression”) without having to resort to strikes of their own. Because preemptive self-defence is not universally recognised and also requires so many elements to be satisfied, they could potentially make this a big diplomatic row, without any real military escalation.
Both sides can issue indignant statements, indulge in some amount of sabre-rattling, and maybe face off in the ICJ again, all of which is preferable to an actual conflict. The careful crafting of the MEA statement needs to be appreciated for this as well.