International law and its processes on their own cannot resolve the India-Pakistan conflict, only political will can. But as these two nuclear armed countries face-off, Dr Rishi Gulati (LSE Law) explains how the international legal system can provide the tools to an aggrieved party to respond to a breach of its rights, and therefore help play a constructive role in moments of heightened tension.
India and Pakistan were brought to the brink of potential nuclear catastrophe following the events of the Pulwama terrorist attack of 14 February 2019 which killed 40 Indian paramilitary police. Jaish-e-Mohammad (JeM), a prescribed terrorist organisation based in Pakistan took responsibility for the Pulwama attack. The events subsequent to Pulwama not only bring into sharp focus the rules around the use of force, but also the taking of countermeasures. An escalation in both those respects has already occurred. International law and processes can and should play their part to prevent the ever-worsening situation in South Asia.
The fog of war
In the aftermath of Pulwama, on 26 February 2019, India stated that its Air Force jets crossed the Line of Control in Kashmir and bombed a JeM camp inside Pakistan, saying: “Credible intelligence was received that JeM was attempting another suicide terror attack in various parts of the country…In the face of imminent danger, a pre-emptive strike became absolutely necessary.” The following day, the Pakistani Air Force crossed the LOC into India, a dog-fight between the Indian and Pakistani Air Forces occurred, one Pakistani and one Indian jet was shot down during combat. India and Pakistan were most likely engaged in an international armed conflict between 26-27 February 2019 (the ‘Two-day IAC’).
Thankfully, the threat of an imminent international armed conflict between India and Pakistan has subsided somewhat, albeit the highly tense atmosphere has not lifted given ongoing skirmishes. The statements made by India and Pakistan purporting their respective conduct in the Two-day IAC to be ‘non-military’ (innovatively calibrated words subjected to analysis here and here), show that neither India, nor Pakistan wish to escalate further the Two-day IAC. As far as the law on the use of force and self-defence is concerned, both India and Pakistan have sought to obfuscate international law considerations given the contentiousness inherent to the law. However, the reasons for de-escalation have little to do with the law on the use of force, but the reality that both those countries possess nuclear weapons. Any prolonged international armed conflict could result in mutually assured destruction (MAD). While the Two-day IAC is over, the longstanding conflict between India and Pakistan is not, bringing into focus the application of countermeasures.
The fog lifts – from ‘strategic restraint’ to enhanced countermeasures
The Two-day IAC must be understood in a much broader context. In addition to multiple IACs, the India-Pakistan conflict has been largely conducted via proxies raising issues of state responsibility and the taking of legitimate countermeasures. As I explain below, it is the taking or threat of taking of countermeasures that is acquiring centre-stage. The Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001 (Draft Articles) provide useful guidance. A victim state can take countermeasures against another state who has engaged in an internationally wrongful act vis-à-vis the former with a view to procuring cessation of and reparation for the internationally wrongful act. Crucially, countermeasures should not amount to the use of force (Draft Article 50(1)(a)); so the laws on the use of force will continue to govern situations of armed conflict.
For present purposes, a precondition of taking countermeasures would be to establish state responsibility. As to establishing Pakistan’s international responsibility, India states that Pakistan uses organisations based in Pakistan to perpetrate terrorism/attacks in India. There is no better example of this than the 2008 Mumbai terrorist attacks (26/11). Images of ten terrorists entering into India from Pakistan by sea indiscriminately firing and killing civilians while receiving instruction from their Pakistani handlers are much too vivid (issues of state responsibility for 26/11 were considered in detail by this author here). One of the 26/11 terrorists, Ajmal Kasab (a Pakistani national), was caught alive and his trial in India provided compelling evidence as to who was behind the attacks. The attack was conducted by another Pakistan-based terrorist group, Lashkar-e-Taiba (LeT). Crucially, without the active support of certain elements of Pakistani authorities to LeT, the attack would not have been possible. Adopting ‘strategic restraint’, the then Indian government did not militarily respond to 26/11 despite evidence of Pakistani involvement making the latter responsible in international law for those attacks (see here).
In view of continued attacks in India by Pakistan-based groups, the end of ‘strategic restraint’ by India was not a question of if but when. That question has been answered. What is apparent is that India is willing to impose a range of increasingly serious countermeasures on Pakistan. Immediately following Pulwana, India removed the Most Favoured Nation (MFN) status from Pakistan, meaning that Pakistani exports to India will attract duties. This is largely a symbolic move given the minimal trade flow between those two countries. More critically, there are some hints that India may repudiate from key aspects of the Indus Waters Treaty 1960 (IWT) following the Pulwana attack (see here). This would mean that India will block the water flow into Pakistan from the rivers the subject of the IWT. The IWT, which creates a mechanism for cooperation and information exchange regarding the use of the six rivers in the Indus river system is the ‘single most successful example of cooperation between the two nuclear-armed rivals’. If the IWT is frustrated, water wars are likely to lead to military escalation. Pakistan has said that a move by India to exit the treaty would be perceived as ‘an act of war’. This would be a remarkable shift to the IWT regime which has survived many conflicts. As the World Bank has noted:
Seen as one of the most successful international treaties, it has survived frequent tensions, including conflict, and has provided a framework for irrigation and hydropower development for more than half a century. Former U.S. President Dwight Eisenhower described it as “one bright spot … in a very depressing world picture that we see so often.”
Whether India refuses to comply with aspects of the IWT remains to be seen. The lawfulness of any such countermeasure (if taken) deserves careful analysis for it must be proportionate (Draft Article 51). For present purposes, the point being that India is increasingly taking a muscular stance, may it be its willingness to conduct operations inside Pakistan; or taking or threatening significant countermeasures going beyond the use of force. One must not underestimate the danger of countermeasures escalating into military action. International law ought to play its part in managing the India-Pakistan situation.
A new paradigm: what role for international law?
International law and its processes on their own cannot resolve the India-Pakistan conflict, only political will can. They can however provide tools to an aggrieved party to respond to the breaches of its rights. Let me give three examples of immediate relevance.
First, as we speak, the ICJ is in the midst of determining the case of Jadhav (India v Pakistan). This case is a fairly narrow dispute where India argues that Pakistan is in egregious breach of Article 36 of the Vienna Convention on Consular Relations 1963 being that consular access was not granted to Mr Jadhav (an Indian national) who was sentenced to death by a Pakistani military court without access to a fair trial. On 18 May 2017, the ICJ made a provisional order stating ‘Pakistan shall take all measures at its disposal to ensure that Mr. Jadhav is not executed pending the final decision in these proceedings’.
Second, there are also ongoing efforts by the World Bank to help resolve certain disputes between India and Pakistan relating to the IWT arising out of certain hydroelectric projects pursued by India. Assuming that the IWT survives, which it probably will, Article IX provides a carefully calibrated mechanism to resolve disputes between the parties doing what it can to take away the political heat from any dispute (howsoever technical) that the India-Pakistan relationship inevitably creates.
Third, of most relevance to the immediate future is the potential role of the United Nations Security Council. In the coming days, the UNSC will consider the initiative by France, UK and the US seeking the listing of JeM’s head, Masood Azhar (a Pakistani national), within the regime of the UNSC 1267 Al Qaeda sanctions committee. If this occurs (a longstanding Indian demand), Masood Azhar’s assets will be frozen; an arms embargo placed; and his movement restricted. So far, China has repeatedly prevented Masood Azhar’s listing in the 1267 UNSC Sanctions List. Should Azar be listed, a meaningful breakthrough may occur giving India some hope that the UNSC is in fact capable of taking effective action in the maintenance of international peace and security in South Asia. This would play a significant role in lowering tensions and reducing the potential of the vicious circle of the use of force and countermeasures between India and Pakistan.
The above mentioned examples are specific legal disputes and processes that occur within the context of a very difficult relationship. If each of those dispute resolution mechanisms and processes work as they should, international law will do its job well.
This article gives the views of the author, and not the position of the South Asia @ LSE blog, nor of the London School of Economics. Please read our comments policy before posting.
Rishi Gulati is a LSE Fellow in Law. Rishi is also a Barrister at the Victorian Bar, Australia.