India’s “Non-Military Preemptive Action” Raises International Law Issues

  • On February 14, a suicide bombing attributed to Jaish-e-Mohammed (JeM) killed at least forty civilians in Indian-controlled Kashmir. Pakistan denied any responsibility for JeM’s actions. On February 26, India launched air strikes on a JeM training camp on Pakistani territory. 

  • India did not expressly draw on international law to justify its strike. It characterized the strike as a “non-military preemptive action.” It noted that JeM had conducted a series of deadly attacks and that it had received credible intelligence that JeM was attempting another suicide terror attack. It therefore stated that a “preemptive strike became absolutely necessary” in the face of such “imminent danger.” Moreover, India emphasized that the strike targeted a JeM camp that was far from any civilian presence. 

  • India’s justification for its strike raises various debated questions of international law: Can a State use force against a non-State actor in the territory of a foreign State? If so, when does international law permit this? What significance does international law attach to the fact that the foreign State has been unable or unwilling to address the threat posed by the non-State actor? Can a State use force preemptively in self-defense after a series of intermittent terrorist attacks? 

  • These debates affect the peace and security of the entire international community and may have special salience for small and developing States. For instance, as Brazil has noted, an expansive definition of “self-defense” based on the “unwilling and unable” concept risks jeopardizing the collective security system and permitting the use of force without adequate oversight and accountability. Moreover, the term “non-State actors” might be broadly construed to include involvement in transnational crimes, which disproportionately affect developing States. 

  • It is vital that developing States meaningfully engage with these questions concerning the use of force as well as make efforts to overcome structural problems that hinder their participation in debates of such fundamental importance. 

  • IILA can work with small and developing States to increase their knowledge of the relevant debates in international law and their implications; determine how best to participate in the creation of international norms; and register their disagreements with India’s legal justifications, including via letters to the Security Council and by reiterating statements articulating contrary understandings of international law.

Anika Havaldar