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  • Manas Raghuvanshi

Justifying India’s Surgical Strikes: A Case for Anticipatory Self-Defence in Internation

Updated: Jul 2, 2023

This blog post has been authored by Manas Raghuvanshi,Junior Legal Associate in the Chambers of Ms. Heena Mongia.


India’s Pre-emptive Attack across LoC:


Director General of Military Operations Lieutenant General Ranbir Singh on 29th September 2016 announced that India carried out surgical operations against terror launch pads, which are temporary safe houses used by militants to worm their way into India, across the Line of Control (LoC). Indian Army’s Special Forces razed not less than seven launch pads that were situated between 500 metres to 3 kilometres in the Pakistan-administered Kashmir to the ground. Indian media reported casualty of two Pakistani military personnel and roughly 50 terrorists. This article, oblivious to the refutation of such claims by the Pakistan’s administration, delves into the legality of such preventive and pre-emptive use of force. Scholars of international law are of the opinion that pre-emption ought to be restricted to attacks that are imminent and unavoidable. However, such incommodious standard is predicated on circumstances where the potential victim state places reliance on the police powers of the state from which an attack is predicted. In situations where the state from which the attack is anticipated contributes to the attack or is unenthusiastic about its prevention, an accommodative conception of necessity of pre-emption is demanded. Pre-emptive use of force can also muster support from the expansion of the doctrine of self-defence, which is gaining worldwide acceptance as a part and parcel of the international policy against terrorism.


The Right of Self-Defence Against Threatened Attacks:


The right of self-defence is predicated on the very notion of Statehood , and consequently it is a principle that is a part and parcel of customary international law and , perhaps, a rule of jus cogens. The Charter does not inaugurate the right of self-defence; it merely indicates the situations wherein its exercise is good in the eyes of law. It did not snatch away the “inherent right” of self-defence by taking cognizance of it in Article 51 , and had it not been so, right would have been extinguished. The United Kingdom Commentary on the United Nations Charter[1] makes plain that Article 51 was a belatedly added to the Charter as the states presupposed that “the right of self-defence was inherent in the proposals and did not need explicit mention in the Charter”.

In Military and Paramilitary Activities (Nicar. v. U.S.)[2], the International Court of Justice took note of the customary right of self-defence vis-à-vis the interconnection between its status as customary international law and the demands of Article 51, which does not have a final say on the legal use of force in self-defence. It is a universally accepted principle that the use of force in self-defence is illegitimate as long as it transgresses the dual requirements of necessity and proportionality in self-defence.

Article 51 allows for the exercise of right of self-defence only in case “if an armed attack occurs”. Nevertheless, the United States and the United Kingdom have diverged from this and asserted that right of self-defence can also be resorted to in cases where an armed attack has not yet materialised but is imminent. Jennings[3] hints at the fact that such standpoint on self-defence can be traced back to the Caroline case of 1837.

By and by, the test in Caroline was made use of by the International Military Tribunals both at Tokyo and Nuremburg. This is symptomatic of the fact that a right of anticipatory self-defence against imminent danger of armed attack is a customary international law that has congealed in Article 51 of the Charter. In post- Charter era, it has been confirmed many a times that right of self-defence in the Charter encompasses a right to use of force for pre-emption. Sir Bowett[4] suggests that the Soviet Union was at the beginning averse to the concept of anticipatory self-defence but, later on, itself on a variety of occasions placed reliance on it.

Scholarship is fractionated with regards the legality of pre-emptive self-defence. One school of thought exemplified by Gray, Henkin and Brownlie argue that until an armed attack has in all actuality has been initiated, the right of self-defence does not exist. Dinstein also deserts the idea of anticipatory self-defence but concedes that a right of “interceptive self-defence” exists in cases where a state has “committed itself to an armed attack in an ostensibly irrevocable way”. The other school of thought championed by Franck, Bowett, Jennings and Watts, is of the view that a right of anticipatory self-defence subsists against an armed attack that is imminent. Greenwood reasons that both ‘State practice’ and ‘realities of modern military conditions’ dragoon the law into abandoning the restrictive reading of Article 51 of the Charter.


Standard for Pre-emptive Self-Defence:


Webster’s imagination of pre-emptive use of force is not universally applicable to all actions pursuant to anticipatory self-defence. The Caroline incident clarified that Webster’s rule finds application in circumstance where the state whose territorial sovereignty will be compromised on executing a pre-emptive attack does not contribute to the threat involved and is enthusiastic about preventing the threat concerned. The yardstick that legalises pre-emptive self-defence is the same as that which legalises the use of force: necessity to act in appropriate situations and proportionality of the military action and the existent threat.

Such an attitude is predicated on the fact that necessity cannot be proved on the basis of an arbitrary assertion that a threat prevails and this, in turn, requires pre-emption in the eyes of the threatened party. Necessity ought to be ascertained by references to pointers that help in the analysis of the legitimacy of the use of force under the Charter and the international law, including: firstly, the nature and severity of the threat; secondly, the probability that the threat will be effectuated unless pre-emptive action is taken; thirdly, the availability and extinction of alternatives to using force; and, fourthly, whether the use of pre-emptive action is in agreement with the values that pulsate within the provisions of the U.N. Charter and concerned international treaties and agreements.


Self-Defence Against Threats from Terrorists:


After the carnage on September 11, 2001, it is pertinent to question whether the notion of “armed attack” as postulated in Article 51 of the Charter is inclusive of a terrorist attack. The traditional use of “armed attack” is usually used in terms of an employment of a regular armed force by the state. Greenwood, however, opines that there exists no a priori explanation for the curtailment of the term “armed attack”. It is indubitable that terrorist aggression can amount to an armed attack and, accordingly, a military retaliation is sensible. The U.N. in General Assembly Resolution 1334 appended a variety of terrorist activities pursued by the states in its conception of aggression in 1974. In addition, the International Court of Justice in 1986 Nicaragua case claimed that a stealthy military adventure by a state can be read into an “armed attack” if it is of considerable gravity. The bloodshed in September 11, 2001, attack without an iota of doubt crossed that threshold, and had such an attack sponsored by a state, and not a terrorist outfit such as Al-Qaida, it would have been categorised as an “armed attack” for the purposes of Article 51 and would have animated the right of self-defence against that state. Formalistic attitude towards “armed attack” leads to the assertion that only when the actions of the people who threaten, or cause an attack, can be tracked back to the state can the aggrieved state resort to the right of self-defence and not otherwise.


Conclusion:


As far as the applicability of the doctrine of pre-emptive force as a matter of self-defence in the Indian context, India has put it in application in a responsible manner. As far as the standard of anticipatory self-defence is concerned, India met, as depicted from its statements in the media, the requirements of necessity and proportionality. In ascertaining the necessity of the requisite military action, all the four pointers were kept in mind by the Indian authorities. In final analysis, India’s unilateral military action in exercise of anticipatory self-defence was congruous to the jus ad bellum and jus in bello essentials and, as a result, are perfectly good in the eyes of law.


[1]https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1251&context=mjil


[2]https://www.icj-cij.org/files/case-related/70/070-19860627-JUD-01-00-EN.pdf


[3]https://www.jstor.org/stable/2190632?seq=1#page_scan_tab_contents



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