Published: 15 November 2019 Authors: Carl-Philipp Sassenrath and Stefan Talmon DOI: 10.17176/20220122-162201-0
On 18 September 2016, heavily armed militants stormed an Indian army base in Uri in the disputed state of Jammu and Kashmir near the so-called “line of control”, the cease-fire line separating the Indian-administered part of Jammu and Kashmir from the part administered by Pakistan. In one of the deadliest attacks for more than 20 years, 18 Indian soldiers were killed. India and Pakistan have been locked in a dispute over the region since the two countries gained independence from British colonial rule in August 1947. India intimated that Pakistan was behind the terrorist attack accusing its neighbour of “continued and direct support to terrorism and terrorist groups.” Indian Prime Minister Narendra Modi strongly condemned the terror attack in Uri and assured the nation that those behind this despicable attack would not go unpunished.
On 28 September 2016, India responded by carrying out “surgical strikes” against terrorist camps across the line of control in Pakistan-Administered Jammu and Kashmir. During the commando raid some 38 terrorists and two Pakistani soldiers were killed. During a media briefing on 29 September 2016, a spokesperson for the Indian Ministry of Defence declared that
“there has been continuing and increasing infiltration by terrorists across the Line of Control in Jammu & Kashmir. This is reflected in the terrorist attacks at Poonch and Uri on 11 and 18th of September respectively. Almost 20 infiltration attempts have been foiled by the Indian army successfully during this year. […]
Despite our persistent urging that Pakistan respect its commitment made in January 2004 not to allow its soil or territory under its control to be used for terrorism against India, there have been no letup in infiltrations or terrorist actions inside our territory. […]
Based on very credible and specific information which we received yesterday that some terrorist teams had positioned themselves at launch pads along the Line of Control with an aim to carry out infiltration and terrorist strikes in Jammu & Kashmir and in various other metros in our country, the Indian army conducted surgical strikes last night at these launch pads.
The operations were basically focused to ensure that these terrorists do not succeed in their design of infiltration and carrying out destruction and endangering the lives of citizens of our country.
During these counter terrorist operations, significant casualties have been caused to the terrorists and those who are trying to support them. The operations aimed at neutralizing the terrorists have since ceased. We do not have any plans for continuation of further operations. […].”
On 5 October 2016, the German ambassador to India, Martin Ney, expressed support for the Indian military action. Responding to a query on the recent “surgical strikes” by the Indian Army across the line of control, he told reporters:
“In my last position in the German Foreign Office I headed the legal department. I was the adviser for international law and I am a trained international lawyer. Let me put it this way. It is absolutely clear there are two clear norms in international law governing this issue. The first clear norm is that every State is under a legal obligation to make sure that from the territory it controls three is no terrorism emanating. Secondly, there is a clear international norm that any State has the right to defend its territory from international terrorism. When it comes to counter-terrorism, Germany stands side-by-side with its strategic partner India. That’s absolutely clear. And these are not empty words in a political declaration that was signed by Prime Minister Modi and Chancellor Merkel but we followed this up with concrete projects […].”
Although not expressly pronouncing on the legality of India’s cross-border operation, the German ambassador was widely reported as endorsing the operation. The ambassador’s statement is remarkable for several reasons. First, it links the right to self-defence against non-State actors to the no-harm principle. States are under a general obligation that their State territory or territory under their control is not used to harm other States. The no-harm principle is not a rule of attribution. The fact that a terrorist attack is launched from the State’s territory thus does not automatically mean that the attack is attributable to the State and that it is internationally responsible for the attack. The attribution of the attack depends on the State exercising effective control over the attack itself. The State is responsible for its own conduct, that is, for not preventing the attack by the terrorist group. States are not subject to an absolute obligation to prevent all terrorist attacks from their territory but must exercise due diligence in preventing their territory from being used for such attacks. The German ambassador did not suggest in any way that the terrorist attack was attributable to Pakistan. If the attack, however, was not attributable to Pakistan, and India was, nevertheless, allowed to defend itself against the attack, the right of self-defence can generally be exercised against non-State actors operating from the territory of another State. This is in line with Germany’s position on a right of self-defence against the so-called “Islamic State” operating from Syrian territory.
Second, unlike in the case of the claimed right of self-defence against the “Islamic State” in Syria, the German ambassador did not base the right of self-defence against the terrorist groups operating from Pakistan-administered Jammu and Kashmir on either their control over the territory in question or the so-called “unable or unwilling” theory.
Third, there seems to be no requirement of a minimum scale and effects of the armed attack in case of terrorist attacks. The German ambassador spoke in general terms of every State having “the right to defend its territory from international terrorism.” The two terrorist attacks in Poonch and Uri which preceded India’s military operation had cost the lives of some 18 soldiers and one policeman. In addition, more than 30 soldiers were injured in the Uri attack, which was the deadliest attack in 20 years. Even if one were to take into account that there had been some 20 unsuccessful terrorist infiltration attempts into India-administered Jammu and Kashmir during 2016 and that further infiltration attempts were impending, such acts would have to be classified in the terminology of the International Court of Justice (ICJ) as “mere frontier incidents” rather than as armed attacks. For the ICJ, the acts of armed bands only qualified as an “armed attack” giving rise to a right to self-defence if the acts occurred on a significant scale. The term “frontier incident” is not a term of art with a precisely defined meaning. However, the use of the term in State practice shows that incidents involving several dozen dead and, in some cases, more than one hundred wounded were still considered as mere frontier incidents. With regard to terrorist attacks at least, the German Government seems to have given up on this requirement.
The German ambassador’s statement signifies a further softening of the requirements of the right to self-defence – a development which is alarming as it increases the likelihood of the unilateral use of force.
Category: Use of force