Introduction
Post the Pahalgam terror attacks in April, India put the Indus Water Treaty (“IWT”) in abeyance for an unspecified duration of time, citing, inter alia, Article 60 of the Vienna Convention on the Law of Treaties (“VCLT”). This Article states that a treaty may be suspended or terminated where there is a “material breach”. The problem with the usage of the VCLT is that it is solely concerned with the breach of a treaty. The Pahalgam attack, heartbreaking it may be, is not strictly a breach of the IWT, which is concerned with the water sharing mechanism between India & Pakistan. This reasoning is strengthened considering the IWT’s objective, which is to ensure continuity even in turbulent times. India’s past conduct provides further credence to this argument when larger conflicts/ events like the Kargil War and the Mumbai terror attacks saw no suspension/abeyance/termination of the treaty.
Considering this, scholars have argued that the regime for countermeasures provides a suitable legal basis for India’s actions. However, beyond passing references, the idea has not been fleshed out properly in contemporary scholarship. This piece aims to fill this gap by analysing the concept of countermeasures. It argues that India’s decision to put the treaty in abeyance must be seen in the backdrop of the relationship between India & Pakistan, where Pakistan’s support for terrorism has been an enduring issue. It is further argued that this breaches the complicity standard under Article 16 of the Articles on Responsibility of States Internationally Wrongful Acts (ARSIWA). It further analyses the proportionality of the countermeasures and finds the same to satisfy the standard of Article 51 of the ARSIWA.
Twin Aspects of Complicity: Accomplice and Attribution
Vladyslav Lanovoy, in his work on complicity regarding Internationally Wrongful Acts, proposes complicity as a new threshold for attribution. Article 16 of the ARSIWA provides for the imputation of liability on a state that provides aid or assistance (complicity) for the commission of an Internationally Wrongful Act. Lanovoy’s argument imposes direct responsibility on the state for the conduct of the terrorist activities by making it the primary culprit, along with the terrorist organization. The prerequisite for this is the fact that the impugned state harbours or tolerates the activities of terrorism to the extent that it “knowingly or repeatedly fails to prevent and punish the unlawful conduct carried out by the private entities.”
This turns the traditional requirement of “effective” or “overall” control for attribution on its head and proposes complicity as an additional and lower threshold for attribution. The requirement of effective control entails satisfaction of an extremely high threshold of complete dependence of the non-state actor upon the state. As per the Nicaragua case there cannot be any decision making autonomy left with the non-state actor and each of its actions must be completely orchestrated by the state. The overall control test presents a lower threshold than effective control and recognizes that the degree of control may vary as per the circumstances of each case. However, it mandates that the state must play a role in “organizing, coordinating or planning the military actions in addition to financing, equipping and training.”
Article 16, on the other hand, imputes a secondary liability on the state because of its conduct of facilitating/enabling or aiding a terrorist activity. Here, the state is not liable for the conduct of the terrorist organization but for the independent wrongdoing of its organs which facilitate the wrongful act.
The subsequent sections explore the feasibility of both arguments and argue that even if the high threshold for attribution is not met, India’s countermeasures are justifiable owing to the breach of Article 16.
Pakistan’s conduct as complicity
Complicity has a lower threshold than direct attribution but a higher one than the violation of the obligation to prevent. Unlike due diligence obligations, which are solely concerned with the omissions of a state, complicity deals with both conduct and omission. Recently, Claudia Candelmo, in her book “State Responsibility and Terrorism”, has argued that omission by itself may also constitute a standard for complicity. She borrows from Lanovoy’s argument that due diligence fails to satisfactorily account for situations where “state inaction amounts to connivance with private wrongdoers, namely when the state repeatedly and knowingly fails to prevent and to punish the unlawful conducts carried out by private entities under its jurisdiction.” Here, she states that cases where a territory is repeatedly being used for terrorist activities should not be exonerated merely on the ground that there is no official acceptance of the terrorist conduct by the offending state, since the same amounts to the state benefiting from its wrongs.
Complicity involves a twofold test of knowledge and a causal link between the act of the state and the terrorist act (see Ch. 3). The element of knowledge is satisfied when the state is aware of the relevance of its action for committing a potential wrongful Act. It does not need to be proved that the state intends to specifically facilitate the wrongful Act (Pg. 76). This is furthered by the notion of intent in the various International Conventions regarding terrorism which state that the mental element for terrorism need only be present for the principal wrongdoer (terrorist) and not the accomplice (state) (Pg. 88). Furthermore, the assessment of this knowledge can be objective by looking at the direct and indirect evidence such as the traditional approach of the state towards terrorists in its territory, official statements, information available to the state and international reports amongst others.
Causation requires the actual transfer of the materiel/training/money, etc. Furthermore, the fact that the state, despite having the capability to prevent, fails to act becomes relevant in this context. Regarding the first aspect, Article 16 states that the aid need not be essential for committing the Act, and the threshold of substantial contribution is enough. An omission may also contribute to a wrongful act where the failure to take measures despite having knowledge regarding the potential of harm makes the state responsible. Thus, complicity needs contribution by the state irrespective of the form that complicity may take (eg, providing assistance through omission). Simply put, a material omission may be sufficient for complicity as seen in the DRC v. Uganda case, where the ICJ held Uganda responsible for the failure to prevent the non-state actors from killing civilians under its obligations as an occupying power. It also differentiated between the areas where Uganda was not the occupying power and held its responsibility for reparations to not extend to those areas.
For this purpose, four levels of state involvement as identified by R.J. Erickson may be used. The first level is of Direction where the state actively controls or directs terrorist activities. The second level is of Support where the state, despite not controlling the terrorists, provides active support in the form of materiel, training, financing, etc. The third level concerns toleration, where the state neither actively supports the terrorist movement nor takes any serious action against them, essentially allowing them a free rein and the last level concerns a state that is unable to deal with terrorists owing to its instability or weakness.
Over the course of its history, Pakistan has fallen somewhere between the second and the third levels on this list. We will argue below that it is leaning more toward the second level. Beyond the obvious assumption that a terrorist group cannot survive against the might of a state without its active connivance, Pakistan’s conduct has demonstrated its intent. Its generals and top political brass have sometimes expressly accepted charges of harboring terrorists, as evident from the admissions of Gen. Parvez Musharraf in the aftermath of the Mumbai terror attacks.
Internationally banned terror groups like the Jaish E Mohammed (JeM), officially responsible for over 60 terror strikes in India, have expressly laid down their objective, which is to liberate Kashmir, aligning with Pakistani state policy on the subject. The United States State Sponsors of Terrorism designation list officially describes Pakistan as a terrorist haven, and US investigative agencies have directly concluded that Pakistan was involved in the terror attacks in Mumbai in 2009.
The recently published report titled “Country Reports on Terrorism” by the US State Department reiterates that Pakistan continues to be a base for several UN and US-designated terror groups like JeM and Lashkar E Taiba (LeT). While acknowledging Pakistan’s actions to counter terror financing, it noted that terror groups enjoyed a relatively free rein. Even the recent Pahalgam terror attack was attributed by the UNSC to The Resistance Front (TRF), an offshoot of the LeT, a fact corroborated by the UNSC’s Sanctions Monitoring Team.
The above facts clearly establish that the element of knowledge is present. Regarding the element of causation, multiple factors show that Pakistan, despite having knowledge and the capability to prevent, has refused to exercise the same. Most prominently, the crackdown by the Pakistani government against the Baluchistan-based terror groups and the TTP, while allowing the JeM and LeT a free rein, underscores the capacity of the Pakistani state, which it has chosen to exercise selectively. This fact has been underscored by International Reports on this subject. Satellite imagery also indicates the presence of several terrorist camps in Pakistan. Furthermore, the ideologies of the terror groups targeting India match the agenda of the Pakistani state, providing further credence to the causality aspect. There has been a long history of Pakistani military and especially the ISI’s association with various terror groups. Rishi Gulati in his article assessing the Responsibility for Pakistan in the 26/11 Mumbai Attacks uncovers the systemic nature of this interaction. The above analysis underscores that Pakistan’s conduct is punishable under Article 16 ARSIWA.
Pakistan’s conduct as attribution
Regarding complicity as a standard for attribution, Lanovoy highlights cases where the Courts have imputed direct liability on the state for conduct of non-state actors. He argues that these cases highlight the lowering of the standard of attribution from the Nicaragua and the Tadic tests. He highlights the cases involving Colombia and the massacres carried out by paramilitary groups which acted with the “support, acquiescence, involvement and cooperation of the State security forces (below the standard of “effective or overall control”) .” Furthermore, in Ilascu & Ors v. Moldova and Russia, the European Court of Human Rights (ECtHR) found responsibility on both Moldova (the host state) and Russia since the Transdniestria regime was under “the effective authority or atleast the decisive influence of Russia and in any event, it survives by virtue of the support provided by Russia.” Similarly, In the landmark SERAC v. Nigeria, the African Court of Human Rights (ACHR) upheld the liability of Nigeria for facilitating the destruction of the Ogoniland people through its policies favoring the MNC’s.
These cases highlight the instances where state inaction amounts to connivance with private wrongdoers due to repeated failure to prevent and to punish the unlawful conducts carried out by private entities under its jurisdiction. A factor which may distinguish these cases from the case at hand is that there is no clear acceptance of terrorism by the Pakistani government, which complicates the issue of attribution. However, in the absence of such acceptance, the evidence as highlighted in the preceding paragraphs proves important.
Proportionality
Article 51 of the ARSIWA states that the countermeasures should be commensurate with the injury suffered. This requirement of proportionality has both qualitative and quantitative aspects. The quantitative aspect relates to the direct symmetricity between the damage suffered by the injured state and the injuring state.
The qualitative aspect accounts for the quality or character of the affected rights and sees it as a matter of principle. The commentary on the ARSIWA states that this qualitative interest which refers to the importance of the interest which is protected by the infringed rule. For instance, in the Gabcikovo Nagymaros case, the ICJ characterized the issue as one affecting the community of interest of the bordering states of the Danube and not merely as an issue relating to the bilateral treaty breach. It found that the principle of perfect equality of all states regarding this usage was firmly established in international law and Czechoslovakia’s unilateral assumption of control deprived Hungary of its share of the water and had the cascading effect of affecting the rights of the other states as well.
Furthermore, the injured state may respond by nonperformance of a different obligation than the original breach. Some states are of the view that the necessity for the purpose of a countermeasure should also be considered as a part of proportionality, however diverging opinions exist. They advocate that the countermeasure may be excessive if there is a necessity for such excessiveness to ensure that the breaching state remedies its wrong.
In the present case, Pakistan’s actions over the past 4 decades constitute a continuing breach of multiple international obligations regarding terrorism. As argued above, despite difficulties in direct attribution under the traditional standard requiring effective control, complicity is proven under Article 16. Pakistan’s conduct has also undermined the plethora of UN Resolutions calling for countering terrorism, and its conduct of refusal to extradite known terrorists and noncompliance with mutual legal assistance question its intent regarding the same. Pakistan’s inclusion in the FATF’s grey list which includes specific criteria like “terrorist financing offences” further underscore the systemic nature of this problem.
Pakistan has been put on FATF’s grey list on 3 separate occasions with its latest stint between 2018 and 2022. Its financial system has been called a “hub for hawala- hundi operations” becoming a conduit for supporting terror activities. Despite its removal, officials within the FATF have expressed reservations. Many have argued that Pakistan’s approach towards countering terrorism stems is reactive in nature and stems from a desire to avoid economic sanctions rather than a genuine effort. Furthermore, a comparative may be drawn to the American Response to 9/11 which despite being an attack of a significantly larger scale was a one-off instance. India’s decision to put the IWT in abeyance is an unarmed response to Pakistan’s historical conduct, which has resulted in thousands of fatalities.
Conclusion
Hence, India’s decision of putting the Indus Water treaty in abeyance exemplifies a dynamic shift in the country’s foreign policy while raising questions of international law. This article discussed the evolving notion of complicity and how the same may be used to justify India’s decision.
Shambhavi Singh is a practicing lawyer in the Supreme Court and the Delhi High Court, and Rudra Singh Krishna is a fourth-year law student at WBNUJS.
Picture Credit: PTI
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