Does India have the legal right to strike?

By Yasser Latif Hamdani

Vigilance of the Pakistan Air Force in response to the Indian threat of a surgical strike has given many in our neighboring country a lot to be bitter about. One gentleman wrote to me calling the PAF the “Al Qaeda Air Force” for not allowing Indian strike to take place. Perhaps our eastern neighbors don’t understand that it is the PAF’s legal responsibility to ward off any incursions with the intention to cause harm or to use force on Pakistani soil. I use the word legal because PAF has a mandate from the sovereign government of this republic to do so. There is a proper procedure that must be followed and the principle states that in the territories and constituent units of Pakistan, it is the Pakistani law enforcement that must reign supreme. An incursion by the Indian Air Force will be both an illegal act of aggression by a foreign power and domestically a criminal act under the Pakistani Penal Code against the foreign nationals involved i.e. Indian Pilots actually piloting the aircrafts used in such an action.

A lot of Indian commentators have been wailing and flailing about the right to strike inside Pakistani territory as established by President elect Barack Hussein Obama (who famously said that he would attack targets on Pakistani soil if Pakistan could not or would not). I have great respect for Mr. Obama and his legal acumen but what he said on the issue of US’ right to carry out strikes in Pakistani territory when divorced from the reality of NWFP is so utterly against all established legal principles that it can only be electoral posturing, for I cannot conceive of a Harvard lawyer to make such a blunder. When asked recently if India was right in its protestations, Zbigniew Brezinsky, that old cold war horse, declared that India had the right to retaliate but that such retaliation would achieve nothing.Allow me to explain why these gentlemen are completely wrong in their bold claims about legal rights as they occur between nation states.

For one thing, International Law is treaty law and therefore contractual as opposed to national law which is any general command of the sovereign i.e. a national parliament of a nation state. The act of war, it may be recognized, is not illegal provided it follows established conventions on war. If a terror attack is carried out by a citizen of country A against country B, then the country B can ask country A to take the necessary legal action against such a citizen. If country A refuses to act, country B can go to the United Nations Security Council and obtain a resolution or can even – as is its sovereign right to – declare war on country A. Both counties are then parties to war and are governed by rules of war. Naturally the Indians must ask if this was the procedure United States adopted in Afghanistan after 9/11 and then in drone attacks on tribal areas in our North West? In Afghanistan, the US obtained a UN security council resolution and asked the Taliban – who mind you were not the internationally recognized government of Afghanistan but were characterized as insurgents- to turn over Ossama Bin Laden, who in turn was not a citizen of Afghanistan to begin with. The subsequent action happened as a result of the refusal of the Taliban regime to do so.

More importantly, we must consider whether US attacks on tribal areas constitutes a legal precedent for India to carry out strikes against Pakistan? Since international law is treaty law, if Pakistan chooses to ignore or even implicitly or explicitly agree to US attacks on its soil, it does not constitute a waiver of Pakistan’s sovereignty for all times to come. Why then would we not extend that agreement to the Indians? Well for one thing, Pakistan and the US have not been involved in a hostile conflict against each other. On the contrary, right or wrong, Pakistan and the US have had a military alliance in the past. Indeed, the Badaber Air Force base once housed US Spy planes. Pakistan and the US fought together against the USSR in Afghanistan and have a history of military cooperation. It is an understatement but to put it simply the same cannot be said of India. Therefore the US attacks on Pakistani soil don’t constitute a precedent for Indians to act.

Ultimately it seems that the only guarantee of security is military strength in this great drama of power politics. The reason why Palestinians face “surgical” strikes which take out hundreds of non-combatants and Pakistanis don’t is because Pakistan has the ability to strike back. Despite our progress as humanity, might is right seems to be the only real principle of international law.

Yasser Latif Hamdani is a lawyer based in Islamabad. He blogs on

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