Anticipatory vs actual attack

In the aftermath of the Pahalgam attack, India’s launch of Operation Sindoor and Pakistan’s retaliatory military Operation Banyanun Marsoos pushed regional tensions to a dangerous new high.

By breaching Pakistan’s territorial sovereignty through cowardly military strikes, India blatantly violated Article 2(4) of the United Nations Charter, which protects the territorial integrity of states and prohibits the use of force against their political independence.

As a result of this violation, Pakistan invoked its right of self-defence under Article 51 – an exception to Article 2(4) of the UN Charter – which allows the use of force in self-defence only in relation to an armed attack.

The right of self-defence (droit naturel), under Article 51 of the UN Charter, is a very restrictive right and can only be used in circumstances where an armed attack has occurred. India and Pakistan both relied on the jurisprudence of right of self-defence for the launch of their respective operations – India, specifically on the right of anticipatory self-defence, while Pakistan on the right of self-defence after the occurrence of an armed attack.

The ICJ has provided a very conservative interpretation of the right of self-defence and stated in ‘Nicaragua v United States’ that this right can only be exercised following an actual armed attack. According to ISPR, India targeted multiple Pakistani locations and three air bases with dozens of military drones, which were shot down by the armed forces, constituting an ‘armed attack’ against the independence of the state. This demonstrates the occurrence of an actual armed attack against the territorial independence of a state.

In cases involving the invocation of the right to self-defence, the ICJ has pointed out that the burden of proof regarding the existence of such an attack rest with the victim state. In the present case, India’s military strikes in Operation Sindoor, targeting innocent civilians and places of worship – killing more than 30 people and injuring 57 others – provided legitimate grounds for Pakistan to invoke its right of self-defence under international law.

The ICJ also noted in its advisory opinion on the ‘Construction of a Wall in the Occupied Palestinian Territory’ that no state can unilaterally determine the legitimacy of its actions while exercising the exceptional right of self-defence. It should share credible evidence of a security challenge and provide justification for invoking this right under the UN Charter.

Despite Pakistan’s consistent demands from India to provide substantive evidence against its involvement in the Pahalgam attack, India failed miserably and targeted religious sites and residential areas. This firmly justifies Pakistan’s right of retaliation through Operation Banyanun Marsoos within the legal framework of international law.

On the other hand, India’s justifications for Operation Sindoor rest solely on the claim of the right of anticipatory self-defence against an ‘imminent’ armed threat from Pakistan. This is, once again, a widely contested concept amongst international law scholars and does not constitute a strong argument in the absence of an actual armed attack. Further, for exercising anticipatory self-defence, India must justify its actions through the ‘Caroline Formula’, which elaborates that a state can only use force when the necessity is imminent, overwhelming, leaving no choice of means and no time for deliberation.

India’s claim that its actions were pre-emptive, measured, non-escalatory, proportionate and responsible also lacks legal grounds. In the ‘Armed Activities on the Territory of Congo case’, the ICJ stated that when the pre-conditions for the use of the right to self-defence do not exist, there is no need to inquire whether the response was proportionate and necessary. Thus, even if India’s actions were measured and calculated, its pre-emptive strikes do not find any legitimacy in the jurisprudence of international law.

Thus, India’s continued attempts to sabotage Pakistan’s territorial sovereignty and independence through Operation Sindoor may secure political points at home for the next electoral process but do not find any legitimate legal grounds under Article 51.

Operation Sindoor was based on the concept of an ‘imminent armed attack’ from Pakistan, which never occurred at any stage. On the other hand, Pakistan’s measured and proportionate retaliatory response – Operation Banyanun Marsoos – targeting multiple Indian strategic and military sites held both legal and moral justification under Article 51 of the UN Charter as an act of self-defence.

The writer is a former lawyer at the office of the attorney general for Pakistan.