Introduction

The era of traditional warfare is fading in relevance. Large-scale mobilization of marching infantries is now rare, and exceptions such as Russia’s invasion of Ukraine only prove the point – data-driven long-range missile strikes, cyber operations, and C4SIR Systems (Command, Control, Communications, Computers, Intelligence, Surveillance and Reconnaissance) have been deployed across the battlefield, rather than antiquated marching infantry regiments, or carpet bombings from the air. Barring exceptions such as Ukraine, most international military action now happens against specific targets identified on the basis of advanced intelligence and data inputs, rather than between nations or regimes as a whole. If Gavrilo Princep had shot the Archduke of Austria today, it is possible the that the retaliation would have been in the form of unilateral, tightly focused, special operations to destroy the Black Hand gang responsible for the assassination, rather than a full-scale military mobilization.

This evolution towards ‘modern warfare’ poses a challenge to the existing understanding of the international law on the use of force, and specifically to Article 51 of the UN Charter which creates an exception to it. In fact, writing for the Economic and Political Weekly, Prof. Bharat H. Desai of Jawaharlal Nehru University (JNU) observed:

“…international law is at the cusp to broaden its scope to include persons (irrespective of their affiliation to state or non-state actors.”

With non-state actors being deemed to hold significant power in the post-9/11 world, and capable of posing existential dangers to the safety and sovereignty of nation-states, the question of acceptable defensive actions against such actors has become much more relevant than of large-scale traditional military mobilization between nation-states. 

Surgical Strikes and Right to Self-Defence

In 2016, Indian forces conducted “surgical strikes” at various “launch pads” across the Line of Control (LoC) from the Kupwara and Poonch districts of Kashmir. As per the official DGMO statement, these strikes were based on “very credible and specific information” that there were terrorist groups arranged strategically at such launch pads with the intent of carrying out terror attacks in Jammu and Kashmir as well as in Indian metros. The DGMO also asserted that “significant casualties” had been inflicted upon the terrorists and “those who are trying to support them”; the latter phase was commonly interpreted to mean Pakistani soldiers.

Firstly, the ICJ has recognized in the Nicaragua case that the duty to report exists under the text of Article 51, but no such duty exists under customary international law of self-defence, which is also inherent in the Article. Thus, the failure to report an action, in effect, amounts more to an irregularity than an illegality, and does not, by itself, vitiate the claim to self-defence. Secondly, as has been pointed out by Prof. Srinivas Burra of South Asian University, India tends to be deliberately ambiguous about the position of its actions under the framework of international law:

 “Indian government’s justifications do not seem to fit within the framework of the UN charter or international law… India does not wish to contextualize the strikes within the international law framework as it only emphasizes terrorist activities and their infiltration without giving any legal justification for the military use of force.” 

However, it is pertinent to note that while not fully contextualized as the right to self-defence under international law, the statement of the DGMO after the strike implicitly relies on the notion of self-defence. 

More importantly, self-defence offers the only framework under which the strikes could have been understood sensibly. India could not rely on the consent of the Pakistani authorities, nor upon any authorization by the UN Security Council – the two generally recognized exceptions to the prohibition on the use of force. Moreover, India did not seriously argue for the recognition of any possibly new exception, except for loosely taking a position that implies that actions against terrorist activities constitute not merely a right but an obligation that does not preclude the exercise of the right to self-defence but encompasses it.

Practice of other States

The repetition of the practice, and justification under the claim of self-defence, is a matter of fact. Among other examples, we may observe the following examples from recent times (subsequent to Operation Enduring Freedom and the US War on Terror) – in July 2006 Israel invaded parts of Lebanon to put an end to the firing of rockets by Hezbollah; in February 2008 Turkey launched a major operation into Iraq in order to stop attacks being carried out from there by the Kurdistan Workers’ Party (PKK); in December 2008 and until January 2009, Israeli military forces invaded Gaza with the aim of destroying the Palestinians’ capacity to fire missiles and rockets into southern Israeli territory.

Israel reported its military operations in Lebanon in 2006 to the UN Security Council as required by Article 51 of the UN Charter and elaborately justified it by relying on its right of self-defence. Similarly, the intervention in Gaza in 2008-09 was also reported to the UN as the application of the law of self-defence. However, Turkey, like India, did not report its actions in Iraq to the UN. However, Prime Minister Erdogan repeatedly invoked the right to self-defence both in Parliament and in public fora.  Moreover, several countries including the United States acknowledged Turkey’s right in the UNSC.

While Israel’s actions were condemned by several countries, the significant thing to note is that no criticism in any instance actually challenged the right of Israel to take action in self-defence. What was challenged and criticized was the actual action itself, and specifically the disproportionate nature of the action – which points to a lack of acceptance of subjective standards for the proportionality test, not the rejection of the plea of right of self-defence against non-state actors per se. Similarly, in Turkey’s case, though only a few countries explicitly accepted its actions, the only country that condemned it was Iraq itself. Thus, the notion of self-defence against non-state actors has remained remarkably unchallenged whenever invoked, and sometimes has even been explicitly accepted.

India’s Statement at Arria Formula

India itself finally shed its reluctance at a meeting of the Arria Formula organized by Mexico in February 2021, where the Deputy Permanent Representative to the UN explicitly contextualized the surgical strike as an “act of self-defence” and insisted that such right extends to use against non-state actors. India’s position at Arria Formula went beyond the general political and moral rhetoric that has become its staple at the UNGA and unequivocally laid down its belief that the inclusion of non-state actors under the exception to the use of force is a matter of state practice and proposes a three-point test under which such action against non-state actors can be justified. This three-point test itself invokes the “unable and unwilling” doctrine, as well as implicitly refers to necessity – but it is important here to differentiate between the test, which can be seen as a tentative proposition to govern the use of force against non-state actors, and the concrete position that such use of force against non-state actors is a valid exercise of the right to self-defence. 

While we do not need to agree with the substantial validity of India’s position (this submission itself is one attempt to analyze this validity, and arrive at the conclusion that India’s statement is not without merit) – we may note that this statement established with certainty that India’s use of force against non-state actors is consciously intended by it to be analyzed and justified in the context of the right to self-defence. Therefore, the requirement of an intended modification of customary international law (if not conventional law under Article 51) is fulfilled.

International Response

While there was no public discussion in the United Nations, in public, the 2016 strike was explicitly supported by several States. Much of this support can be attributed to political and diplomatic efforts by India. However, the political dimension of the response does not take away from its implications for international law – a major state had, not yet explicitly but substantially in practice, exercised its right to self-defence against non-state actors emanating from another sovereign’s territory, with no major objections raised on such grounds, and the explicit approval of many important countries including 4 out of 5 permanent members of the UNSC.

The approval for the subsequent Balakot strikes in 2019 was more muted. However, this muted approval was at least partly attributable to the fact that several countries that had already made their acceptability of such actions by India clear after the 2016 strikes did not feel the need to reiterate their commitments, instead contextualizing such actions as part of the same continuing right.

In the Arria meeting, Australia, the U.S., France, the U.K. and Russia explicitly committed themselves to the validity of the position taken by India. Most European nations, including the Netherlands, Finland, Austria and Ireland, accepted the right of self-defence against non-state actors. The only major opponents of this position were Brazil and China. Some other nations like Iran chose not to comment on the issue specifically while emphasizing in generic terms the need for the evolution of international law.

Conclusion

The position of various countries in the Arria formula is extremely revealing. Firstly, while we may not have reached the threshold required for acceptance of the use of force against non-state actors as a State practice, a majority of the first-world countries, and all permanent members of the UNSC except China, support such interpretation. Secondly, they not only reflect the current opinio juris, but are also important for another reason – on a full reading, most of them explicitly, or by necessary implication, acknowledge the widespread use of force and invocation of self-defence against non-state actors (even when they disagree with the legitimacy of such use). What arises from the discussions at Arria and all the context preceding such discussion, is the reality that the use of force against non-state actors, per se, is both common and justifiable in the modern world. Where the disagreement lies, and what is of concern to most countries – are the tests and rules governing and constraining such use of force. The “unable and unwilling” doctrine that is sometimes invoked is not very popular in several countries. Thus, even though the unwilling and unable doctrine flows easily as a logical consequence of the UNGA and UNSC declarations on the responsibility of states to contain non-state actors, including terrorists, it is wider to abandon this line of argument as it is unlikely to form a sound legal basis for the evolution of such jurisprudence.

However, there is a definite need for an updating of the tests of ‘necessity’ and ‘proportionality’. The criticism directed at Israel for its actions in Gaza targeted specifically the disproportional nature of the actions. Thus, a more objective test to assess the proportionality of response might be a necessity moving forward, and help address the concerns of countries who feel that formally accepting such actions may lead to a slippery slope.

There is also a commonly understood need to assess the ‘gravity of the attacks’, a domain which involves the problem of ‘accumulation’ – whether the ‘accumulation’ of several relatively minor attacks can be taken together to constitute a sufficient cause for the use of force. This theory has been implicitly approved by the ICJ and never objected to by the Security Council. India too depended on this idea, though not explicitly, when it claimed that the 2016 surgical strikes were in response to “[a] matter of serious concern that there has been continuing and increasing infiltration by terrorists across the Line of Control in Jammu & Kashmir.”

Finally, it must be mentioned that this widespread acceptance of the use of force against non-state actors has significant consequences for India’s security regime. While surgical strikes and other so-called ‘black ops’ are not new as security tools, and there are reliable accounts of them being deployed covertly and not infrequently before 2016, the “surgical strikes” were a watershed in terms of diplomacy and international law because they brought the use of such tools out of the shadows and into the diplomatic mainstream. In doing so, India joined a relatively small but influential group of countries that have openly acknowledged the use of such tactics and pushed for their acceptance as legitimate by the international community. In the post 9/11 world, most nations have come to the realization that the future of military and armed conflict is likely to look very different from its past – and non-state actors are going to be an important and significant part of such a future. 

Even though the regime of international law may have not yet passed the threshold required for the formal acceptance of this new doctrine, India has openly joined the debate on the side of those advocating for it, and that gives India a “first mover” advantage of sorts which allows it a wider range of diplomatic and military options in dealing with such threats, as well as giving it an important voice in shaping the debate around the use of force. In the medium and long run, this leverage may prove to be decisive in making sure that India’s security apparatus is able to stay ahead of the curve and carry out its operations with greater transparency – using them not just for strategic but also deterrence purposes and gaining the valuable experience required to operate in the geopolitical scenario of the near future.

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Khushi is a third year student at NLU, Jodhpur.