Home Global Village The illegality of India’s surgical strike – Dr Zafar Nawaz Jaspal

The illegality of India’s surgical strike – Dr Zafar Nawaz Jaspal


Dr Zafar Nawaz Jaspal |

The Government of Pakistan and the United Nations Mission monitoring the ceasefire on the Line of Control officially denied the occurrence of a surgical strike on September 29, 2016, but no one has so far questioned its legality. These developments provided Prime Minister Narendra Modi with the ‘necessary pretext’ to stage the farcical ‘surgical strike’ in Azad Kashmir in September 2016 and conduct of Balakot operation on February 26, 2019.

On February 26, 2019, the US National Security Advisor (NSA), John Bolton supported India’s attack by stating that it has the right to self-defence. Also, US Secretary of State Michael Pompeo said it was a “counter-terrorism action.” These statements give out an impression that India’s ‘surgical strike’ is legally liable under international law.

The UN Charter only permits the Member State to use force against the territory of another Member State by the latter’s invitation.

India’s Surgical Strike Stratagem bluntly defies in letter and spirit the United Nations Charter’s Article 2(4) that governs the laws of the use of force by states: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the Purposes of the United Nations.” Indeed, Article 51 of the UN Charter permits the use of force in self-defence.

It states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

Read more: Modi rekindled ‘imaginary’ surgical strikes debate in London

Secondly, the UN Charter only permits the Member State to use force against the territory of another Member State by the latter’s invitation. Thirdly, use of force is a legal act, if the UN Security Council (UNSC) under Chapter VII of the UN Charter authorizes it. Article 42[12] of the Charter empowers the Security Council to use necessary force to maintain international peace and security.

The Security Council does not have a military force of its own; therefore, it authorizes member States to use force. However, besides the exceptions as mentioned above, using force on any other grounds amounts to a violation of Article 2(4) of the UN Charter. The UN Charter’s Article 51 permits Member State the use of force in self-defence when there is an armed attack against that state.

The Government of Pakistan and the UN Mission monitoring the ceasefire on the LoC officially denied the occurrence of a surgical strike on September 29, 2016.

However, “the language of Article 51 in particular and the purposes of the UN Charter, in general, do not provide the possibility of justification for the right of self-defence against the attacks of the non-state actors unless they are attributable to the State.” In reality, Article 51 does not allow ‘surgical strike’ for the sake of domestic political advantage in elections; justifying military budgets; and bleeding the neighbouring states for demonstrating regional hegemony. Secondly, India’s phantom ‘surgical strike’ in September 2016 and attack on Balakot were illegal because the UNSC did not authorize both.

Read more: US satellite images expose Indian surgical strike claims

Thirdly, it is illegal because they were not conducted in retaliation to Pakistan’s invitation or invasion. India has been making vociferous claims that undesirable persons from the side of the Azad Jammu Kashmir Line of Control keep infiltrating in the Indian Occupied Kashmir or the territories of India. India alleged that such infiltration was made with intent to foment unrest and bloodshed in Indian Occupied Kashmir by instigating and staging terrorist and anti-state activities. It further asserted that such infiltration has its origin in Pakistan or such elements have direct or indirect support of Pakistan.

In reality, these allegations have not found substantiation from the official Indian sources. In January 2019, the Indian Defence Minister Nirmala Sitharaman claimed “We have not had one major terrorist attack in this country after 2014. There are of course disturbances on the border, but the Indian Army has made sure that every attempt to come into this country is eliminated even at the border.”

To conclude, India’s airstrike in Pakistani territory on 26 February 2019, was a gross violation of international law. It was a declaration of war giving the victim a right of self-defence under Article 51 of the UN Charter that declared unlawful all aggression.

Dr. Zafar Nawaz Jaspal is Associate Professor, School of Politics and International Relations, Quaid-i-Azam University, Islamabad. He is also an advisor on Non-Proliferation to SASSI, London and a course coordinator at Foreign Services Academy for the Pakistan Ministry of Foreign Affairs. Email: jaspal_99@hotmail.com. This article was first published in Pakistan Observer and has been republished with the author’s permission. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.

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