Pakistan-India stand-off in February 2019


What the United Nations can do

 The Indian Air Force air strikes on Balakot on 26 February and the response by the Pakistan Air Force the very next day set off a wave of fear and uncertainty about further escalation of hostilities between the two nuclear armed states. This fear and uncertainty, which gripped both sides of the border (with perhaps the exception of some hubristic Indian politicians, their jingoistic media channels and their ill-informed viewers) and the region and the world at large, led to multilateral behind-the-scenes efforts by the USA, Russia and some of the Gulf states for the de-escalation of hostilities. At the time of writing, Pakistan apprehends further Indian misadventures as per the recent statements of Foreign Minister Shah Mehmood Qureshi.

The United Nations Charter, in its Article 2(4), requires its members to refrain, in their international relations, from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Article 2(4) has been held by the International Court of Justice (in the case of Nicaragua v. United States) to represent customary international law. The damage to only a few trees in Balakot notwithstanding, India clearly committed a violation of Article 2(4) through the IAF air strikes. These air strikes violated Pakistan’s territorial integrity and, had Pakistan not responded responsibly and with proportionality, had the potential to set off a series of cataclysmic events that would have posed a grave threat to regional and world peace. It is also noteworthy that any Indian threats of further armed attacks against Pakistan also fall within the ambit of a flagrant violation of Article 2(4) of the UN Charter.

A significant reform of its decision making process should incentivize States subject to an armed attack or involved in armed conflict to approach the Security Council

The IAF air strikes also triggered Pakistan’s right of self-defence set out under the UN Charter and customary international law. Article 51 of the UN Charter states that 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 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. Article 51 is supplemented by the customary international law right of self-defence which has its origins in the Caroline case and has been further developed by State practice to include the right of anticipatory self-defence by a State. This right of self-defence by a State in response to an armed act (or in anticipation of further armed attacks) is required by international law to meet the requirements of necessity and proportionality. The PAF air strikes at selected targets in the Indian Occupied Kashmir were a straightforward case of self defence by Pakistan in response to the Indian armed attack the previous day as well as in reasonable anticipation of, and to deter, further such attacks by India. Therefore, the requirements of necessity were clearly met by Pakistan in exercising this right of self-defence. Furthermore, these PAF air strikes that only targeted open areas with no resultant loss of human life also provided an exemplary textbook compliance with the requirements of proportionality in the exercise of the right of self-defence by a State in response to an armed attack. By even the most stringent objective standards, this should serve as a commendable precedent to military planners and decision makers across the globe of how responsible restraint and proportionality, exhibited by a State while exercising its inherent right of self-defence under international law, can avoid unnecessary human casualties or collateral damage during armed conflict.

Another very interesting outcome of the events of February 2019 was the notable absence of the UN (apart from a single statement from the UN Secretary General), and in particular the UN Security Council, in playing any role towards de-escalation of hostilities between Pakistan and India. Chapter VII of the UN Charter assigns a pivotal role to the Security Council to intervene in instances of threats to the peace, breaches of the peace and acts of aggression. In the 1965 war between Pakistan and India, the Security Council played a proactive role and passed a series of resolutions for ceasefire and the cessation of hostilities. It did the same in the 1971 conflict through Resolution 307 (which was overshadowed by Mr. Bhutto’s famous speech and walk-out from the Security Council a few days earlier). However, the events of February 2019 kicked in substantive behind-the-scenes multilateral efforts by the USA, Russia and the some of the Gulf states (instead of the direct involvement of the UN Security Council) for the de-escalation and cessation of hostilities. The argument that these air strikes and the subsequent air-to-air combat between the air forces of Pakistan and India did not rise to the threshold required to involve the UN, overlooks the highly calamitous potential of escalation of hostilities between two nuclear armed States. It may well be that the open endorsement by France (which is one of the permanent members of the UN Security Council) of the Indian side’s version of the IAF air strikes would most likely have resulted in the veto of any draft resolution condemning the Indian armed attack, and henceforth would have disincentivized Pakistan to approach the Security Council as its first port of call. Therefore, in such circumstances, it may make more pragmatic sense to take a leap of faith towards multilateralism outside the UN Security Council sphere for conflict resolution by involving influential States (who are common friends or allies) as opposed to a singular focus towards the Security Council due to its current voting structure. While not to undermine the significant and substantive role that the UN and the Security Council continue to play towards international peace and security, the lack of involvement of the UN Security Council in the events of February 2019 further strengthen the case for carrying out a significant reform of its decision making process. This reform should incentivize States subject to an armed attack or involved in armed conflict to approach the Security Council with the confidence that any resolutions and actions relating to condemnation of armed attacks and de-escalation of hostilities will be guided by a more democratic process instead of the self-interest and strategic alliances of its permanent members. Otherwise, the famous axiom international relations is not about morality but about self-interest shall continue to permeate the UN Security Council’s decision making process, and may progressively undermine its significance as a first port of call of conflict resolution for States involved in any sort of armed conflict.