“Preventive strikes” is a problematic term in international law – analysis
The newly appointed head of the Indian Army, General Manoj Naravane, in a stern message to Pakistan, said that India reserves the right to preemptively attack sources of terrorist threats if the neighboring country does not stop state-sponsored terrorism. It is clear that the government of the Bharatiya Janata Party believes that the cross-border use of force is the “new normal” in the treatment of terrorism emanating from Pakistan.
The 2016 surgical strikes against terrorist launch pads through the Line of Control and the 2019 Balakot airstrikes on terror camps in Pakistan clearly point to this trend. However, the reference to “preventive strikes” should be analysed because the cross-border use of force has implications for international law.
The rules of international law on the use of force are found in the Charter of the United Nations (UN) and customary international law. Article 2.4 of the Charter of the United Nations prohibits countries from threatening or using force against the territorial integrity or political independence of any other country, except for two circumstances.
First, the use of force may be authorized by the United Nations Security Council under Chapter VII of the Charter. Second, Article 51 of the Charter of the United Nations recognizes the inherent right to individual or collective self-defense in the case of an armed attack by one State on another State.
A contentious question is whether countries can invoke the right to self-defense against non-state actors, such as terrorist groups. The International Court of Justice (ICJ) in the Building a wall And Armed activities in the Congo Territory declared that the armed activities of non-State actors must be attributed to States for the attacked State to exercise its right to self-defense. Therefore, in the event of non-attribution, the use of force will be illegal, although a case of countermeasures could be made. In addition, as the ICJ celebrated in the US v Nicaragua the State must exercise “effective control” over terrorist groups to satisfy the attribution requirement. The mere financing and complicity of armed groups is insufficient to prove attribution.
There is another emerging, albeit controversial, principle to justify the use of force under Article 51. Promoted by countries such as the United States, this principle is called the “incapable/non-voluntary” test. According to this principle, if a State has been attacked by a non-state actor based in another State, the State under attack may take action against the State where the threat is located, if the threat is unable or unwilling to take action against the non-state actor in its territory. Arguably, India can use force as part of its right to self-defense against terrorist groups in Pakistan, as Pakistan cannot or is not willing to act against these groups.
Although the 2016 surgical strikes and the 2019 Balakot airstrikes were carried out immediately after Pakistan-based groups that launched terrorist attacks in Uri and Pulwama respectively, India did not invoke the right to self-defense to justify the cross-border use of force. He did not make any public case to show that the actions of the terrorist groups were attributable to Pakistan.
While explaining the Balakot airstrikes, India spoke of Pakistan’s unwillingness to act against terrorist groups operating from its soil, but did not invoke evidence unwilling/unwilling to justify its actions as part of the right to self-defense.
Rather, India called its airstrikes “preventive strikes”—a problematic term in international law—that General Naravane has repeated. If India’s intention was to act against an imminent armed attack from Pakistan, the appropriate terminology would be “anticipated self-defense” and not “preventive attacks.”
The doctrine of “early self-defense,” although not universally accepted, is rooted in the Carolinens incident of 1837. The incident involved a pre-emptive strike by British forces in Canada against Caroline, an American ship.
American sympathizers with the rebels against the British government in Canada used the ship to transport weapons to the rebels. According to this doctrine, a State that claims self-defense would have to demonstrate that the “need for self-defense was instant, overwhelming, leaving no choice of means or moment of deliberation.” In addition, the force used must be provided. India arguably justified its 2019 Balakot airstrikes Caroline Beginning. However, by calling the action “preventive attacks,” not “anticipated self-defense,” India weakens its explanation.
If India wishes to add the cross-border use of force in its arsenal to combat cross-border terrorism, it is imperative that India’s actions and words are rooted in the vocabulary of international law. This requires clearly articulated support on the cross-border use of force. Or, India’s actions could be regarded as an illegal retaliation, thus a violation of international law.
Prabhash Ranjan is a senior assistant professor at the University of South Asia’s faculty of legal studies
The opinions expressed are personal