The doctrine is an American creation and not a part of customary international law. It should not be confused with the right of anticipatory self-defence.
This post first appeared on Scroll.in on March 5, 2019
n the wake of the February 14 Pulwama attack, the Indian Air Force conducted a cross-border counterterrorism operation that was hailed as a new paradigm in India’s sub-conventional warfare tactics and overall security strategy. The strike was carried out by a fleet of 12 Mirage 2000 jets to target a suspected Jaish-e-Mohammed training camp in Pakistan. Vijay Gokhale, India’s foreign secretary, described it as “non-military preemptive action”.
Indisputably, “non-military” means the target was a non-state actor, not the Pakistani state or its armed forces. But let us examine the concept of non-military “preemptive” action.
Some commentators hastened to grant a stamp of approval to the foreign ministry’s “well-drafted statement” that “checks all international law boxes”. They, however, confused the right of anticipatory self-defence that is recognised as customary international law with the American “preemption doctrine”, referring to it as the “right of preemptive self-defence”.
Three conditions must be met to exercise both variations of this same right. One, possibility of an imminent attack. Two, necessity to use military force to avert the threat of such an attack. Three, proportional use of force.
Soon after the “surgical strike” of 2016, Yateesh Begoore provided a useful explanation of this distinction. He pointed out that anticipatory self-defence has been a rule of customary international law since the Caroline affair of 1837. The correspondence between Daniel Webster, then United States Secretary of State, and his British counterpart describes the legal elements required to establish such a right that have been reaffirmed over the centuries. It states:
“It will be for the government to show a necessity of self-defence instant, overwhelming, and leaving no choice of means, and no moment of deliberation…it will be for it to show also that the…authorities – even supposing the necessity of the moment authorised them to enter the territories…at all – did nothing unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.”
The rule of preemptive self-defence adapts this doctrine to US national security needs. According to James Baker, “At a minimum, the preemption doctrine appears to apply a lower threshold not only of imminence but also of factual judgment as to when force may be used.”
Post 9/11, the 2002 US National Security Strategy elevated this new concept to the level of a “preemption doctrine”. Unlike anticipatory self-defence, the right of preemptive self-defence as it stands is not part of customary international law.
Certainly, the foreign ministry’s statement takes this difference into account. The reference to the preemptive nature of the operation, however, directly contradicts extensive reporting on the strike which indicates the Indian Air Force was given the go-ahead to avenge the Pulwama attack the very next day. The chronology of the IAF’s preparation for the attack as well as inputs from the US National Security Advisor have also emerged. Yet, it is remarkable that the foreign secretary’s statement does not make any mention of retaliation or contain a reference to India’s inherent right of self-defence against armed attacks by non-state actors. The statement reads:
“Credible intelligence was received that JeM was attempting another suicide terror attack in various parts of the country, and the fidayeen jihadis were being trained for this purpose. In the face of imminent danger, a preemptive strike became absolutely necessary.”
No details about these potential suicide attacks are in the public domain. We also do not know how a single attack could be conducted at multiple places as the statement states. It is indisputable that matters of national security must transcend political ideologies and affiliations. At the same time, it is imperative that our decision-makers ensure acts done in the interest of national security do not transcend the international legal constraints on the waging of war.
Question of ‘credible intelligence’
“Retaliation” and “preemption” are by no means synonymous. While in some situations there may be a deterrent effect inherent in retaliatory action – as it is always in response to a preceding attack – it is not required that retaliation be preceded by credible intelligence indicating the possibility of imminent attacks. In making this distinction, it is not my intent to question the legitimacy of the air strike but to examine only the legal basis in international law relied upon by the foreign ministry.
As for the “credible intelligence” about imminent attacks, there are only two possibilities: the intelligence was received by the Cabinet Committee on Security before February 14 or afterwards. If it was received before the Pulwama attack and even if it was credible, it fell outside the realm of actionable intelligence and could not be used to intercept or preempt an attack after it had already occurred. Hence, the foreign ministry’s claim of the strike being preemptive falls flat as the imminence element has not been established.
If the information about “multiple potential fidayeen attacks” was received after thePulwama attack, the claim of the air strike being retaliatory is at best only partially true. The absence of information regarding the nature and magnitude of these anticipated attacks makes it difficult, if not impossible, to determine the necessity and proportionality of deploying a dozen Mirage aircraft to prevent such a threat from materialising. Even if information about imminent attacks indicated a real and credible threat, the necessity and proportionality of preemptive military action would be measured against the anticipated nature of the potential attacks and not against the Pulwama attack. Whether more attacks after Pulwama were just a mirage or imminent can only be ascertained from facts I suspect the government would be extremely reluctant to release in the public domain.
Thus, although the legitimacy of counterterrorism operations remains unquestionable, the proffered justification under international law leaves a lot to be desired. Indeed, India is well within its rights as a sovereign country and an equal member of the community of nations to contribute to the development of a new customary international legal norm. In doing so, we must remember it would magnify the American “preemption doctrine” if we engage in such practice with a sense of legal obligation. It would also have the effect of lowering the customary international legal standard, the threshold of what may be considered an “imminent attack” that justifies the use of force against non-state actors.
Right of self-defence
However, if it is the American interpretations of international law that we are so willing to follow blindly, perhaps a reaffirmation of India’s “inherent right of self-defence” against armed attacks by non-state actors pursuant to Article 51 of the United Nations Charter would have been a simpler, less burdensome and more effective justification for the foreign ministry to establish factually. The ministry’s adoption of the American preemption doctrine overlooks one important distinction between US legal policy and international legal norms: the American version makes no distinction between terrorists and those who knowingly harbor or provide aid to them. On the other hand, the right of self-defence against attacks by non-state actors such as the Jaish is firmly established in international legal practice post-9/11. Not only is this the legal foundation of the US-led War on Terror, Article 51 was also invoked by France in the aftermath of the November 2015 Paris attacks as the legal basis for swift airstrikes against ISIS in Syria.
This legal position would have served a three-fold purpose. First, it would have been factually consistent with the Indian government’s public claim that the air strike was carried out to bring to justice the perpetrators of the Pulwama attack, the IC 814 hijack, and beyond.
Second, if India indicated an intent to target only the Jaish installations and not the state that harbors them, it would have weakened Pakistan’s claim under international law that a right of self-defence had accrued to it in response to an “aggressive attack” by India against non-state actors on its territory. The escalation of conflict that ensued at the border on February 27 was not entirely unexpected as Pakistan had already written to the UN Security Council after the Pulwama attack, accusing India of threatening regional security.
Third, the legal classification of the conflict that would have ensued with the Jaish in lieu of Pakistan’s armed forces would fall under the category of non-international armed conflict with a non-state actor that entails obligations only under Common Article 3 of the Geneva Conventions of 1949, allowing our forces relatively more freedom of action in counterterrorism operations in bringing the perpetrators of the attack to justice. Instead, with retaliatory attacks by the Pakistani Air Force, we now find ourselves in the midst of a traditional international armed conflict between two sovereign states, and have engaged the entire corpusof jus in bello obligations incumbent upon both states, as parties to all the four Geneva Conventions.