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International Laws regarding the Legality of the Indian Military Strikes on Pakistan

What Really Is A Military Strike?

Military strikes or surgical strikes are only designed to deal with specific targets. It intends to cause damage only to legitimate military targets, while causing little or no incidental damage to civilians, general public infrastructure, vehicles, surrounding structures and utilities.

In other words, this is a rapid and targeted attack (usually without prior warning), so the average person is least affected. The use of military / surgical strikes to neutralize targets also helps prevent full-scale warfare.

These kinds of attacks can be conducted by air strikes, special operational forces can be airdropped also, or by sending commandos or regular troops to conduct rapid ground operations.
In the contemporary context, surgical strike is an action that can disable or greatly reduce the enemy's head. For example: On May 2, 2011, Osama Bin Laden, the founder of Base Helicopter Company, was picked up by the US (SEALS) Navy on a helicopter in Abobttabad, Pakistan The SEALs killed, this is an example of a surgical attack. Successful surgical strikes often achieve their desired goals and have devastating effects.

Recent Military Strikes Conducted By India

The line of control is located between the Indian and Pakistani control sections of the former princely state Kashmir (J & K). This is the de facto border and is generally respected by both parties. However, Indian and Pakistani troops sometimes attempt to change the areas under their control during large-scale operations. Cruelty and cruelty are common occurrences in LoC. As we all know, soldiers and militants of the armed forces crossed the border and exceeded a post, causing a large number of casualties and using beheading as a humiliating act. The two sides accused each other of conducting such cross-border attacks and denied that they were involved in such raids.

Indian Loc Strike, 2016

India has operated on the launch pads of militant groups allegedly in Pakistan-occupied Kashmir (PoK) and caused heavy casualties. The number of casualties given by Indian media is between 35-50. Pakistan denied India's claims. On September 18, 2016, four armed forces launched a Fidayeen attack at a military base near Uri town. 19 Indian soldiers were killed. India accused the Pakistani terrorist organization Jaish-e-Muhammad (JeM) of the attack. Eleven days after the Uri attack on September 29, 2016, India announced that it had operated on LoC of Pakistan occupied Kashmir's militant launch pad and caused heavy casualties. Some shots of the strike were released to the Indian media on June 27, 2018 as proof of the strike.

Balakot Airstrike, 2019

India carried out the Balakot airstrike in the early morning of February 26, 2019, when Indian warplanes crossed the de facto border of the disputed Kashmir region and dropped bombs near the town of Balakot in Khyber Pakhtunkhwa Province, Pakistan. The airstrike was named as a response to the terrorist attack in Pulwama in February 2019. JEM claimed responsibility for the fatal terrorist attack in Pulwama on February 14 and killed more than 40 CRPF personnel.

The characteristic of India is that this is a non-military pre-emptive strike against terrorist training camps, causing a large number of terrorist deaths. It attacked JeM's largest camp in Pakistan, which is speculated to be preparing for a suicide attack in India.

The Indian Air Force has guarded the air defence system at international borders and local governments in response to any retaliation by the Pakistan Air Force.

Question Of Legality

Immediately after the attack, Pakistani President Imran Khan held an emergency meeting to review the situation. Pakistan's Minister of Foreign Affairs Shah Mahmood Qureshi said: India has violated the law of armed conflict and has committed aggression, and Islamabad has the right to defend itself'.

The Pakistan National Security Council (NSC) also said: India has carried out a silent aggression and Pakistan will respond to it at the time and place it chooses.
A few minutes after the Pakistani Foreign Minister marked the Indian Air Force's strike in Khyber Pakhtunkhwa as serious aggression', people questioned the validity of the strike in international law.

Conjectures Are Unnecessary

Although there is no doubt that the bombings in Pakistan are more legally affected than in the past PoK surgery, India still has comprehensive legal defences, so it is not appropriate to speculate. India strengthened its position by calling it a pre-emptive strike against terrorist attacks, and cited examples of various strikes conducted in the past.

The United States claims to be acting in accordance with Article 51 of the Charter of the United Nations. In August 1998, the United States launched cruise missile attacks in Afghanistan and Sudan. India also ran out to UN Resolutions 1368 and 1373.

These resolutions recognize the terrorist attacks as a serious harm to the peace and security of the nations worldwide.
The statement given by the UN Security council for condemning the attack in Kashmir, and calling on all countries to actively cooperate' with the Indian government and demand accountability for the perpetrators, organizers and initiators of the attacks was also welcomed by India.

Legal Defences Put-Forth By India

Although it is indisputable that, in principle, the explosions that took place in Pakistani territory had a greater legal impact than the surgical operations in the former Pakistan occupied Kashmir, the ministry of foreign affairs of India states that India has the full legal defence library, so it is speculated that conjectures are improper.

The Use Of Force In International Law

India claims the existence of the defence in the UN Charter and claims that the attack is a right of self-defence. It is specified by the article 2 (4) of the Charter of the United Nations that all member states should avoid threatening or using force in their international relations to threaten the ministerial independence and integrity of the territory of any country, or in any other manner that does not serve their purposes.

This article of the UN Charter prohibits the use of constraint and threat against the independence or integrity of any country, as well as authorizes the intrinsic self-defence rights of each member state to be an exception. This rule is reflected in the 1945 UN Charter, which is a good reason to prevent a country from using force at its own will. It is important to understand the use of phrase self-defence in this situation as he Indian government has narrated the strike to be a pre-emptive action.

The UN Charter- Article 51

If an armed attack is carried out against a Member State of the United Nations, this Charter shall not damage the inherent right of individual or collective self-defence; until the Security Council takes the necessary measures to maintain international peace and security. Measures taken by Member States to exercise this right of self-defence shall be immediate Reporting to the Security Council must not affect the actions and powers of the Security Council under this Charter in any way. It is considered necessary to maintain or restore international peace and security.'

Even if the UN Charter's definition of Article 51 excludes the self- defending right in the lack of a military attack, the International Court of Justice tends to downplay and expand the applicability of defence against non-state actors who are addicted to terrorist acts. This was observed and also stated true by justice Sima of ICJ during the case of armed activities on Congolese region, as well as other opinions in the decision of the International Court of Justice on the legal consequences of the separation of the Palestinian territories.

Of course, the use of force cannot be generalized. The UN Charter clearly recognizes a country's right to self-defence. Article 51 stipulates that there are no other provisions in the Charter if an armed attack is carried out on a member state of the United Nations, the inherent right of individual or collective self-defense will be damaged.

A controversial issue before jurists is whether the right to self-defence under Article 51 of the Charter of the United Nations includes a preemptive action.

Key Phrase: Pre-Emptive Strike

The Pulwama attack is clearly considered a candidate for an armed attack, which may make the air attack a self-defence operation, but the fact is not so simple. India must prove that Pakistan carried out the attack or allowed the attack to happen, which is difficult to do. India's statement strategically avoided this minefield and instead relied on pre-emptive self-defence to defend the air raid.

Pre-emptive self-defence says that a country can take self-defence actions before carrying out an armed attack on them, provided that they can show that the necessity of taking action is immediate, overwhelming, and have no other choice.

This is why the Indian statement said:
In the face of imminent danger, it is absolutely necessary to pre-emptive strikes.

Pre-Emptive Self Defence: Protection In Customary Law

The right of self-defence is strengthened not only by the article 51 of the Charter of the United Nations, but also stems through the customary international law principles. In fact, according to the customary international law, this is considered to be an inherent right, which means that it is equally important as the concept of state, and it will also exist even if it is not mentioned in the UN Charter and Article 51.

After Caroline's affairs, the Caroline test became one of the principles of customary international law, and it was ambiguous that countries were allowed to enjoy priority self-defence rights on the condition that they must be immediate, proportionate, and necessary.

As the Indian Government insists that these strikes were based upon reliable information it received in the near future about JeM's possible attack, it is quite in line with the standards of customary international law. Also, it should be noted that this was strike against the non-State actors, and not an act against the country where the wrongdoers live.

Also to be noted that effective pre-emptive strikes against terrorist attacks have also occurred in the past. The United States claimed to have taken action in accordance with Article 51 of the UN Charter. On August 20, 1998, the United States conducted attacks with the help of cruise missiles in Afghanistan and Sudan in reciprocation to its terrorist attacks in Kenya and Tanzania.

It is also important here to state the technicality mentioned in the statement by the Foreign affairs minister, in which he specifically denotes that strikes are pre-emptive because they directly expect another suicide bombing. Therefore, the direct reason for the Indian air raids is that suicide bombings may occur in the future, but not in the past. This provides a good legal basis for India's actions under international law.

Resolutions 1368 & 1373

United Nations Resolutions 1368 and 1373 reinforce India's position, which recognizes international terrorist acts as a viable danger to worldwide peace and security. In terms to provide a legal backing for armed attacks, India has used various defensive measures. The Indian government also stated these resolutions to prove that the attack was a pre-emptive action against future suicide bombing attacks planned by JeM terrorists' organizations.

UN Security Council Resolution 1368

The UN Security Council unanimously adopted UN Security Council Resolution 1368 on September 12, 2001 after expressing its determination to combat the threat of terrorist acts to international peace and security and recognizing the right to individual and collective self-defence. The resolution calls on all countries to cooperate to bring the perpetrators, organizers and sponsors of the attack to justice, and to hold accountable those responsible for supporting and harbouring criminals, organizers and sponsors.

The international community is urged to implement counter-terrorism conventions and Security Council resolutions through international cooperation and step up efforts to prevent and combat terrorist attacks. Resolution 1368 concluded with the conclusion of the Security Council. It expressed its willingness to take steps to respond to and prevent attacks and combat all forms of terrorism in accordance with the Charter of the United Nations.

UN Security Council Resolution 1373

The UN Security Council Resolution 1373 was unanimously adopted on 28th September, 2001 after the terror attacks against the US on 11th September, 2001, is an anti-terrorism measure. The resolution was adopted in accordance with Chapter VII of the United Nations Charter and it is thus binding on all United Nations Member States.

This resolution aims at obstructing terrorist groups in various ways. It recalled the provisions on terrorism in resolutions 1189 (1998), 1269 (1999) and 1368 (2001). Member States of the United Nations are encouraged to share information about terrorist organizations to help reduce international terrorism.

The resolution specified that all countries should also ensure that all terrorist attacks are classified as serious criminal offences in domestic laws and regulations, and reflect the seriousness of such acts in a true sentence. This resolution also established the Counter-Terrorism Committee of the Security Council to keep a check on the country's compliance with its regulations.

It also aims to restrict the provisions of the immigration laws:
Before obtaining refugee status, all countries must take relevant measures to ensure that asylum seekers do not plan to assist or participate in any form of terrorist activities. In addition, the states should ensure that any terrorist attack the organizers, organizers, facilitators or sponsors do not abuse refugee status, and politically motivated claims are not considered as grounds for refusing to extradite accused terrorists'.

Therefore, India launched a major diplomatic attack on Islamabad after the Pulwama attack and emphasized Pakistan's role in using terrorism as a national policy tool. It gave a reasonable explanation for the air strike and largely maintained its status as a non-violent country in the United Nations. 

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