‘Preemptive strikes’ is a problematic term in international law

The newly appointed Indian Army chief, General Manoj Naravane, in a stern message to Pakistan, said that India reserves the right to preemptively strike at the sources of terror threats if the neighbouring country does not stop State-sponsored terrorism. It is clear that the Bharatiya Janata Party government believes that cross-border use of force is the “new normal” in dealing with terrorism emanating from Pakistan.

The 2016 surgical strikes against terrorist launch pads across the Line of Control and the 2019 Balakot airstrikes on terror camps in Pakistan clearly point to this trend. But, the reference to “preemptive strikes” needs to be analysed because cross-border use of force has international law implications.

The rules of international law on the use of force are found in the United Nations (UN) Charter and in customary international law. Article 2.4 of the UN Charter prohibits countries from the threat or use of force against any other country’s territorial integrity or political independence, barring two circumstances.

First, the use of force may be authorised by the UN Security Council, acting under Chapter VII of the Charter. And, second, Article 51 of the UN Charter recognises the inherent right of individual or collective self-defence in the case of an armed attack by one State against another State.

A contentious issue is whether countries can invoke the right to self-defence against non-State actors such as terror groups. The International Court of Justice (ICJ) in the Construction of a Wall and Armed Activities on the Territory of the Congo cases held that armed activities by non-State actors should be attributed to the states for the attacked State to exercise its right to self-defence. Thus, in the case of non-attribution, the use of force will be illegal, though a case for counter-measures could be made. Furthermore, as the ICJ held in the US v Nicaragua case, the State should exercise “effective control” over the terror groups to satisfy the attribution requirement. Mere financing and abetting armed groups is insufficient to prove attribution.

There is another emerging principle, though controversial, to justify use of force under Article 51. Championed by countries like the United States, this principle is called the “unable/unwilling” test. According to this principle, if a State has been attacked by a non-State actor based in another State, the attacked State can take action against the State where the threat is located, if the latter 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-defence against terror groups in Pakistan since the latter is unable or unwilling to act against these groups.

Although the 2016 surgical strikes and the 2019 Balakot airstrikes were conducted in the immediate aftermath of Pakistan-based groups launching terror attacks in Uri and Pulwama respectively, India did not invoke the right to self-defence to justify cross-border use of force. It made no public case to show that the actions of the terror groups were attributable to Pakistan.

While explaining the Balakot air strikes, India talked about Pakistan’s unwillingness to act against terror groups operating from its soil, yet did not invoke the unable/unwilling test to justify its actions as part of right to self-defence.

Rather India called its airstrikes as “preemptive strikes” — a problematic term in international law — that General Naravane has repeated. If India’s intention were to act against imminent armed attack emanating from Pakistan, the appropriate terminology would be “anticipatory self defence” and not “preemptive strikes”.

The “anticipatory self defence” doctrine, though not universally accepted, has its roots in the Caroline incident of 1837. The incident involved a pre-emptive strike by British forces in Canada against Caroline, an American ship.

American sympathisers with the rebels against British rule in Canada used the ship to ferry arms to rebels. As per this doctrine, a State claiming self-defence would have to show that the “necessity of self-defence was instant, overwhelming, leaving no choice of means, and no moment of deliberation”. Further, the force used should be proportionate. Arguably, India justified its 2019 Balakot air strikes by relying on the Caroline principle. However, by calling the action as “pre-emptive strikes”, not “anticipatory self defence”, India weakened its explanation.

If India wishes to add cross-border use of force in its arsenal to fight cross-border terrorism, it is imperative that India’s actions and words are rooted in the vocabulary of international law. This requires a clearly articulated stand on cross-border use of force. Or else, India’s actions could be seen as constituting unlawful reprisal, thus a violation of international law.

Prabhash Ranjan is a senior assistant professor, South Asian University’s faculty of legal studies

The views expressed are personal