India’s Inalienable Right to take Preemptive Anti-terror action against Pakistan-II
In the first part of this essay, we looked at the historical backdrop of international law that pertains to a country’s right of self-defence against an imminent or actual armed attack by a foreign country through its non-state actors. The origins of the legal framework in this field were traced back to the Caroline incident in the mid-19th century. Since then, the law has evolved, of course.
In the closing segment of Part 1, a brief assessment was made of the views of a well-known scholar in this branch of international jurisprudence, Daniel Bethlehem, specially in his landmark 2012 essay in the American Journal of International Law (Vol.106:000) titled, “Principles Relevant to the Scope of a State’s Right of Self-Defence against an Imminent or Actual Armed Attack by Non-State Actors”.
At this point, for the benefit of lay readers, I would like to summarise the current position of the law in this subject. There may be minor differences between different scholars and researchers in interpreting the entire terrain, but there is enough consensus on the issue. Let me, then summarise the broad picture.
Generally-accepted principles pertaining to a state’s / country’s right of self-defense against an imminent or actual armed attack by non-state actors from a foreign country.
- States / nations / countries have a right of self-defence against an imminent or actual armed attack by non-state actors from another country.
- Armed action in self-defence should be used only as a last resort in circumstances in which no other effective means are reasonably available to address an imminent or actual armed attack.
- Armed action in self-defence must be limited to what is necessary to address an imminent or actual armed attack and must be proportionate to the threat that a country or state faces.
- The term “armed attack” includes both discrete attacks and a series of attacks that indicate a concerted pattern of continuing armed activity. The distinction between discrete attacks and a series of attacks may be relevant to considerations of the necessity to act in self-defence and the proportionality of such action. Readers will recognise the importance of this aspect of the law, in the context of what India has experienced in its interface with Pakistan in the last few decades. This assumes additional significance because of the jihadi ideology that is prevalent in the Pakistani political establishment’s roots.
- An appreciation that a series of attacks, whether imminent or actual, constitutes a concerted pattern of continuing armed activity is warranted in circumstances in which there is a reasonable and objective basis for concluding that those threatening or perpetrating such attacks are acting in concert.
- Those acting in concert include those planning, threatening, and perpetrating armed attacks and those providing material support essential to those attacks, to the extent that they can be said to be taking a direct part in those attacks.
- Armed action in self-defence may be directed against those actively planning, threatening, or perpetrating armed attacks. It may also be directed against those in respect of whom there is a strong, reasonable, and objective basis for concluding that they are taking a direct part in those attacks through the provision of material support essential to the attacks.
- Whether an armed attack may be regarded as “imminent” will necessarily have to be assessed by studying all relevant circumstances, including (a) the nature and immediacy of the threat, (b) the probability of an attack, (c) whether the anticipated attack is part of a concerted pattern of continuing armed activity, (d) the likely scale of the attack and the injury, loss, or damage likely to result from it, in the absence of mitigating action, and (e) the likelihood that there will be other opportunities to undertake effective action in self-defence that may be expected to cause less serious collateral injury, loss, or damage. The absence of specific evidence of where an attack will take place or of the precise nature will not prevent necessary action by a country under threat, so long as the threat perception is reliably supported with a high degree of confidence on the basis of credible and all reasonably available information. The term “threatening” refers to conduct that, in the absence of mitigating action, is capable of completion and that that there is an intention on the part of the presumed perpetrators to complete it. Whether a threatened attack gives rise to a right of self-defence will have to be assessed comprehensibly. Absence of an attack does not preclude a conclusion that an armed attack is imminent, for the purposes of the exercise of a right of self-defence, provided that there is a reasonable and objective basis for concluding that an armed attack is imminent.
- States are required to take all reasonable steps to ensure that their territory is not used by non-state actors for purposes of armed activities—including planning, threatening, perpetrating, or providing material support for armed attacks—against other states and their interests.
- Subject to the following paragraphs, a state may not take armed action in self-defence against a nonstate actor in the territory or within the jurisdiction of another state (“the third state”) without the consent of that state. The requirement for consent does not operate in circumstances in which there is an applicable resolution of the UN Security Council authorizing the use of armed force under the UN Charter or other relevant and applicable legal provision of similar effect. Where consent is required, all reasonably good faith efforts must be made to obtain consent.
- The requirement for consent does not operate in circumstances in which there is a reasonable and objective basis for concluding that the third state is colluding with the non-state actor or is otherwise unwilling to effectively restrain the armed activities of the non-state actor such as to leave the state that has a necessity to act in self-defence with no other reasonably available, effective means to address an imminent or actual armed attack. In the case of a colluding or a harbouring state, the extent of the responsibility of that state for aiding or assisting the non-state actor in its armed activities may be relevant to considerations of the necessity to act in self-defence and the proportionality of such action, including against the colluding or harbouring state.
- The requirement for consent does not operate in circumstances in which there is a reasonable and objective basis for concluding that the third state is unable to effectively restrain the armed activities of the non-state actors, such as to leave the state that has a necessity to act in self-defence with no other reasonably available effective means to address an imminent or actual armed attack. In such circumstances, in addition to the preceding requirements, there must also be a strong, reasonable, and objective basis for concluding that the seeking of consent would be likely to materially undermine the effectiveness of action in self-defence, whether for reasons of disclosure, delay, incapacity to act, or otherwise, or would increase the risk of armed attack, vulnerability to future attacks, or other development that would give rise to an independent imperative to act in self-defence. The seeking of consent must provide an opportunity for the reluctant host to agree to a reasonable and effective plan of action, and to take such action, to address the armed activities of the non-state actor operating in its territory or within its jurisdiction. The failure or refusal to agree to a reasonable and effective plan of action, and to take such action, may support a conclusion that the state in question is to be regarded as a colluding or a harbouring state.
- Consent may be strategic or operational, generic or ad hoc, express or implied. The relevant consideration is that it must be reasonable to regard the representation(s) or conduct as authoritative of the consent of the state on whose territory or within whose jurisdiction the armed action in self-defence will be taken. There is a rebuttable presumption against the implication of consent simply on the basis of historic acquiescence. Whether, in any case, historic acquiescence is sufficient to convey consent must be determined by reference to all relevant circumstances, including whether acquiescence has operated in the past in circumstances in which it would have been reasonable to have expected that an objection would have been expressly declared and, as appropriate, acted upon, and there is no reason to consider that some other compelling ground operated to exclude objection.
- These principles are without prejudice to the application of the UN Charter, including applicable resolutions of the UN Security Council relating to the use of force, or of customary international law relevant to the use of force and to the exercise of the right of self-defence by states, including as applicable to collective self-defence.
- These principles are without prejudice to any right of self-defence that may operate in other circumstances in which a state or its imperative interests may be the target of imminent or actual attack.
- These principles are without prejudice to the application of any circumstance precluding wrongfulness or any principle of mitigation that may be relevant.
Readers are well aware that the above legal principles are culled from numerous sources. In the above summary, I have tried to present the entire position as simply as possible, but even then, there is enormous complexity in the provisions as laid down. To simplify the exposition, let me point out that the four paragraphs that are most germane for the readers are 9 to 12. In fact, they are almost tailor-made to describe the Indo-Pakistani interface. Para 15 is the icing on the cake for India. Raisina Hill would certainly have brought up these points in their dialogue with friendly countries like Russia, U.S, Israel, France et al, as also the fence-sitters.
However, the internal naysayers like the Congress, its allies and the proverbial “secularist” / anti-Indic civilisation rabble, need to be confronted with this legal framework. India not only has morality and ethics on its side but also the notoriously fickle animal, called “law”.
I would like to conclude this present study by pointing out to the example of other civilised and mature democracies which have not hesitated to use deadly force against non-state terrorist actors. In the fight against Islamic terrorism in the Sahel, Syria and Iraq, former French President François Hollande did not hesitate to give instructions to the French security agencies to carry out targeted executions of terrorists.
These operations were carried out by the Direction Générale de la Sécurité Extérieure (DGSE). In a book titled Erreurs fatales (Fatal Errors), published in 2017, a well-known independent journalist Vincent Nozille gave details of how France draws up lists of dangerous terrorists outside France who are eliminated. These lists are eventually approved by the French President, before specific covert action is actually initiated. Countries like Israel and the U.S. have, of course, carried out such action routinely in the last many decades. The USSR / Russia has made no bones about its use of “wet” methods for many years, though this is not a model that democratic countries should point out approvingly.
The point I am stressing is that India needs to shed its earlier image of a “soft” juggernaut, always groaning and crying after being repeatedly assaulted. The regime change of 2014 has now, finally, resulted in shedding this country’s earlier avatar. And about time, too.
Featured Image: Indian Defence Review