Applying International Law to Pulwama
From an etymological viewpoint, all abstract concepts are equal. This, however, may not be true in the real world of India-Pakistan relations where two concepts of terrorism and aggression compete for primacy. While the concept of the latter is an ancient construct of world order that has been part and parcel of all the international legal orders, that of the former is nascent and underdeveloped. The concept of aggression denies territorial legitimacy of states whereas terrorism, as a phenomenon, has its linkages with power. In this context, Pulwama incident, which saw the death of over forty personnel of Central Police Reserve Force (CPRF) in the territorial limits of the Indian-Occupied Kashmir (IOC) on 14th February 2019, provides an opportunity to look at the central themes of the foreign policies of Pakistan and India towards each other from an international law perspective. It is clear that the foreign policy of Pakistan, in the matter, essentially argues against the aggression of India; conversely, India’s case rests on advocating against role of Pakistan in terrorism on its soil.
India’s Case: Role of Pakistan in Terrorism
The nub of India’s stance is that Pakistan played a role in Pulwama attack. India was quick to categorize the incident as ‘terrorist attack’ without investigating into facts, and by rejecting Pakistan’s offer to cooperate for a joint investigation into the incident. This is not the first time that India has blamed Pakistan for such incidents. Prior to this, India was quick, many a time, to point fingers at Pakistan. Earlier, India had linked Uri (18th September 2016) and Pathankot (2nd January 2016) incidents to Pakistan. The propensity to blame Pakistan for any terrorist attack in Kashmir or on Indian soil is now part of India’s foreign policy. Unfortunately, the policy is not sustainable. It is a matter of record that international law does not treat terrorism central to its scope; the discourse about terrorism is by way of exceptionalism and it is only for political reasons that terrorism is being internationalized. This point was articulated by Professor Daniel Moeckli of the University of Zurich, Switzerland, in his article ‘The Emergence of Terrorism as a Distinct Branch of International Law’, wherein he concluded:
“…the emergence of terrorism law is characteristic of the general trend towards the fragmentation and compartmentalization of international law….The emergence of the international anti-terrorism regime is equally the consequence of political pressures, albeit of a different sort: it is the result of a hegemonic attempt by certain states to impose a global approach to countering terrorism that mirrors their own domestic anti-terrorism policies.”
The so-called international law related to terrorism is not supported by the jurisprudence nor does it get its sanction from the customary international law.
Pakistan’s Case: Aggression by India
In contradistinction to India’s case, the case of Pakistan is grounded in international law. Pakistan argues that India should refrain from ‘use or threat to use force’ against it. The argument is based on customary international law that obligates states not to use force against other states. The obligation is reinforced by treaty law as Article 2(4) of the UN Charter prohibits use or threat to use force. It may be noted that the acts of use of force by one state against another are categorized as aggression. The definition of aggression was agreed to by the United Nations General Assembly through its Resolution 3314 of 1974. Later, it was included in the Statute of International Criminal Court as an offence, and inter alia, for this very reason the US and states like Israel did not sign the Statute. In any case, Pakistan’s viewpoint is backed by the existing international legal order that makes it convenient for other states to subscribe to Pakistan’s legal position. In view of this background, the acts of aggression by India, in the latest episode, may be detailed as:
1. Surgical Strikes
After the Pulwama incident, and without investigating or setting some mechanism for determination of facts at international level, India instantly blamed Pakistan for ‘terrorism’ within ‘its territory’. Based on its self-concocted blame, it opted to use force against Pakistan in sheer violation of its international obligation to refrain from using force as enshrined in Article 2(4) of the UN Charter. It packaged its ‘use of force’ as ‘surgical strikes’ that it claimed to have carried out in target area of Balakot in Mansehra district of Khyber Pakhtunkhwa on 26th February 2019. The purported ‘surgical strike’ was without any evidence. Independent investigators who compared satellite imagery of the target site on comparable dates also refuted Indian claims. Despite being internationally disgraced for want of evidence to back up its claim, India persisted in claiming that it had conducted aggressive strikes, in breach of international law. Its claim even failed to meet the dubitable exceptionalism of the collective self-defence under Article 51 of the UN Charter as it did not get any sanction from the UN Security Council. In addition, the so-called strikes did do some sort of environmental damage that was reported to the UN and was a strong proof that India had committed acts of aggression that could not be justified under the international law.
2. Ceasefire Violation
Saeed Ahmed Rid, a postgraduate fellow at the University of Oxford, the United Kingdom, stated in his article ‘India and Pakistan: Formalizing the 2003 Ceasefire Agreement’ traced the history of ceasefire agreements. He stated:
“…one formal ceasefire agreement already exists between India and Pakistan in the Karachi Agreement signed between India and Pakistan on 27 July 1949. It drew the original Ceasefire Line (CFL) between the Indian Jammu and Kashmir and Pakistani-controlled Azad Kashmir. But, as India and Pakistan entered into the 1965 and 1971 wars, and signed two different treaties after those two wars, the 1949 Karachi Agreement has become almost redundant, except for the boundary lines between Azad Kashmir and the Indian-held Jammu and Kashmir.”
Since Pulwama incident — maybe to reap political premium in the 2019 Indian elections — Ceasefire Violations (CFVs) are taking place between India and Pakistan. India’s CFVs, which are motivated by its failure to prove its claim of surgical strikes, are in clear breach of the 2003 Ceasefire Agreement between India and Pakistan, besides the UN Resolutions on Kashmir. The acts of aggression by India do not get diluted by the fact that these are being committed at Line of Control (LoC).
3. Airspace Violation
After the increased tensions between India and Pakistan due to the former’s false claim that it had carried out ‘surgical strikes’ against the latter, the airspace of Pakistan was shut down to air traffic. From the point of view of military action, this meant that both the countries were on guard for their air spaces. On 26th February, Pakistan Air Force (PAF) locked six targets on the Indian side of the LoC and carried out the strikes. In response, Indian Air Force (IAF) sent its ‘combat aircraft’ that violated airspace of Pakistan. As the ‘combat aircraft’ of the IAF flew beyond 10 km airspace of Pakistan, as agreed in the 1991 Agreement between Indian and Pakistan on Prevention of Air Space Violations, in self-defence, Pakistan struck down two IAF aircraft besides taking into custody a pilot, who was an enemy hors de combat (out of action) under Article 41 of the Additional Protocol I of 1977. In fulfilling its obligation, Pakistan released him as a gesture of peace.
4. Violation at Sea
On 4th March 2019, an Indian submarine tried to intrude into Pakistani waters. This incursion was in sheer violation of the multilateral treaty law contained in the United Nations Convention on the Law of the Sea (UNCLOS) that determines different zones, in which, states exercise progressive rights. Article 20 of the UNCLOS obligates submarines and underwater vehicles to navigate on the surface and to show their flag; non-compliance can obviously be treated as violation of International Law and, in the hostile environment that exists between India and Pakistan, a threat to use force amounting to an act of aggression.
An examination of the positions of India and Pakistan will show that India is relying on power for its stance whereas Pakistan’s view is based on legitimacy. The relationship between power and legitimacy has been complex, and in order to ensure global peace, legitimacy has to be the basis of the international order; power will corrupt the international order as it does with municipal order.
Who is “hors de combat”?
Article 3 common to the three Geneva Conventions (Common Article 3) – applicable both to state and non-state actors – lays out that in non-international armed conflicts, fighters who have laid down their arms and those placed “hors de combat” are to be treated humanely in all circumstances without distinction. Amongst other acts, violence to life and person, mutilation, cruel treatment and torture, and murder are specifically prohibited.
While Article 3 offers no definition of the term hors de combat, its definition is provided for in Article 41 of Additional Protocol I of the Geneva Conventions (Additional Protocol 1), which lays out that a person is hors de combat if:
a. he is in the power of an adverse party;
b. he clearly expresses an intention to surrender; or
c. he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is, therefore, incapable of defending himself.
Provided that in any of these cases, he abstains from any hostile act and does not attempt to escape, he may not be made the object of attack.
A fundamental rule of international humanitarian law is that persons who are hors de combat must not be attacked and must be treated humanely.