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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 http://hotelmohenjodaro.blogspot.com.

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20 Responses to "Does India have the legal right to strike?"

  1. Hossp United States Unknow Browser Unknow Os says:

    “Despite our progress as humanity, might is right seems to be the only real principle of international law.”

    SecDef Bob Gates recently pointed out that US spending on diplomacy is barely $40 billion versus $700 billion in military spending. This has militarized the US diplomacy. There is a huge reluctance coupled with the cold war mindset that prevents the US from pursuing diplomatic options. The consistent US behavior encourages every country with small or large disputes to believe that military diplomacy would help resolve problems.

    Most of the Defense expert all over the world follow US lead in many areas and this is one area which has contributed to an unprecedented militarization in the world.
    However, the two most recent event-Iraq and Afghanistan- plus the growing financial crisis might provide the pause that the world needs from this escalating militarization.

    Kind of late right now..Will contribute more to the topic… good one for a thorough discussion.

  2. lal India Unknow Browser Unknow Os says:

    nice point ylh,what if the strikes are on azad kashmir (or pok)..what is the legal status then……

  3. Majumdar India Unknow Browser Unknow Os says:

    Yasser mian,

    Since you are a good lawyer, I will not argue with you and if you say so accept that India prolly does not have a right to strike. But that is besides the point. More importantly it is not going to achieve anything and could well provoke a suicidal nuclear war.

    But had Pakistan been Gaza and India been another US or even China, all these legal niceties would not have come in India’s ways.

    Regards

  4. PMA United States Unknow Browser Unknow Os says:

    “Ultimately it seems that the only guarantee of security is military strength”

    You are right YLH as is MajumDar. A robust Pak Armed Force capable of effectively defending the homeland is the only guarantee to the peace in South Asia. When comes to India-Pakistan there is no such thing as ‘surgical strike’. More true is the scenario of ‘tit for tat’. Any future attack on Lahore, Karachi or Islamabad will guarantee deadly missile strikes on Delhi, Bombay and Calcutta. Sad as it is, these are the realities of South Asia. Legal or not. Fear of mutual destruction has kept India and Pakistan away from all out attacks on each other.

  5. alok Singapore Unknow Browser Unknow Os says:

    Really! well your well equiped and robust army cannot fight few thousand militants in SWAT and yet they will fight India.

    what a sham!

  6. takhalus United Kingdom Unknow Browser Unknow Os says:

    as my professor international law said..international law is no law.

  7. azhar aslam United Kingdom Unknow Browser Unknow Os says:

    Lal , u r such an idiot.

    the following is the legal status of Azad Kashmir ( or to use the correct term, Azad Government of Jammu and Kashmir).

    as far your term PoK, you only wish. I can’t stop laughing. If only all ”occupied” territories were like this. prosperous and free ( within subcontinental perspective ofcourse).

    And before u come back blaberring with some inane nonsense, I am a State Subject ( look it up if you dont know what that is ) , so don’t bullshit.

    ”As far as the United Nations is concerned, the entire area of the former princely state of Kashmir and Jammu, including Azad Kashmir, remains a disputed territory still awaiting resolution of the long-standing dispute between India and Pakistan.

    In 1950, the government of India, ignoring a United Nations resolution on Kashmir, abandoned its pledge to hold a plebiscite and, in 1956, unilaterally annexed that portion of the former state that was under its control, thereby making that portion an integral part of India.

    The Indian claim to Kashmir is based on very controversial and ‘forced accession’ to India made by the Maharaja on 26 October 1947 , when he was fleeing his Capital, Srinagar . The Kashmiri people rejected this ‘accession’, and so did Pakistan (the other contender of Kashmir ) and the world community in the United Nations.

    Even the Indian leaders rejected this ‘accession’, Pandit Nehru, the Prime Minister of India said:
    “We have declared that the fate of Kashmir is ultimately to be decided by the people. That pledge we have given (and the Maharaja has supported it) not only to the people of Kashmir but to the world. We will not and cannot back out of it. We are prepared, when peace and order have been established, to have referendum held under international auspices like the UN. We want it to-be a fair and just reference to the people and we shall accept their verdict.”
    Nehru’s telegram No Primim 304 dated 8 November 1947.

    In another statement to the Indian Parliament on 16 June 1948 , Pandit Nehru said:
    “If after a proper plebiscite the people of Kashmir said we do not want to be with India, we are committed to accept it even though it might pain us. We will not send an army against them. We might feel about it, we will change the constitution if necessary.”

    In his own words on October 31, 1947, Jawaharlal Nehru wired Liaquat Ali Khan, Pakistan’s prime minister, that his promise was “not merely a pledge to your government but also to the people of Kashmir and to the world”. On November 2nd and 3rd, Nehru used the words “referendum under U.N. auspices.” (Nehru’s legacy to India A.G. NOORANI)

    UN Security Council Resolution 122 of 24 January 1957 provides that, “the final disposition of the state of Jammu and Kashmir will be made in accordance with the will of the people expressed through the democratic method of a free and impartial plebiscite conducted under the auspices of the United Nations.” The modalities of such a plebiscite have been spelled out in the Security Council Resolution 47 of 21 April 1948. It is submitted that the Kashmiri self-determination struggle is founded on these Security Council decisions. Under international law it is clear that the Kashmiri people’s right to self-determination remains, and has not been extinguished by any subsequent Indian constitutional measure, or local elections.

    The issue of the competence of an elected body such as Constituent Assembly to adopt a decision on the dispensation of the state of Jammu and Kashmir on behalf of the people of Kashmir as an alternative to UN administered plebiscite has been effectively dealt with in the UN Security Council Resolution 122 of 1957, which declares that the convening of a Constituent Assembly, as recommended by the General Council of the “All Jammu and Kashmir National Conference”, and any action that Assembly may have taken or might attempt to take to determine the future shape and affiliation of the entire State or any part thereof, or action by the parties concerned in support of any such action by the Assembly, would not constitute a disposition of the State.

    The government of Pakistan, on the other hand, continues to this day to regard the entire area of the former state as “territory in dispute” to be resolved by a plebiscite to be held at some future date, in order to determine the entire area’s accession to either India or Pakistan.”

    However, I suspect that if India does try to strike inside Azad Kashmir, the Azad Government will have a right to call upon Pakistan for protection under various treaties and Paksitani Government will act appropriatley as it is obliged to do.

  8. simply61 Bahrain Unknow Browser Unknow Os says:

    Legality? That is hardly what comes to mind when talking of strikes or war, inspite of all the International law you have quoted..India has a right to defend itself and to attack a country if hostilties are the flavor of the day and Pakistani Airforce/Army/Navy has an equal right to defend their country and carry out what they deem fit in the situation.

    Regarding what the bloggers/commentors say on the issue: it is just so much hot air generated.

    All this discussion about who will wreak more havoc and on which cities in the two nations, basically serve only to let out some steam and vent out anger and ‘hatred ‘for each other.

    YLH, aapke aise comments,”A lot of Indian commentators have been wailing and flailing” only add to the two sides commenting with increasing vitriol.

  9. YLH Pakistan Unknow Browser Unknow Os says:

    PMA…

    Good to have you back…

    Sherry mian and the Pink0-fascist brigade has gone crazy on the other board.

    Would love to get your perspective on the matter.

  10. alok Singapore Unknow Browser Unknow Os says:

    ok so my comment was not published because its derogatory about your army!!!or plain reality!

    huh! why the heck u maintain such a blog!

  11. alok Singapore Unknow Browser Unknow Os says:

    Bangladesh is gone, FATA is gone, Swat is gone, Baluchistan is gone:

    conclusion: hang on to kashmir you will lose some more.

  12. lal India Unknow Browser Unknow Os says:

    Look my friend azhar,
    In the last post ,i asked a question,i didnt give any opinion.Any way thanks for that wonderful history lesson.As all of us know,a strike is not being seriously contemplated at this point of time.Even if there is a strike,legality of that will be the last thing on both our nations mind.I partly agree with YLH on that.My question was for him and it was clear enough.Strike across intenational boundary can be argued to be illegal.What is the legal status about the strike across LOC..(ideally we will avoid discussing kashmir in this column.we will only start abusing each other if we start that)

  13. Majumdar India Unknow Browser Unknow Os says:

    Aloke mian,

    FATA is gone, Swat is gone

    You are clueless as usual. FATA and Swat havent gone anywhere, both geographically and politically. The Taliban dont wan’t to secede but to implement their system in the whole of Pak.

    Regards

  14. PMA United States Unknow Browser Unknow Os says:

    YLH: My fondness of Raza and his even handed editorial fairness keeps me attached to PTH. Also I have much respect for your in-depth research and knowledge of Pakistan Movement and our Great Leader, Mohammad Ali Jinnah. I always enjoy reading your articles here at PTH. My suggestion is that you develop a ‘Fellowship’ with an international ‘Think Tank’ where your scholarship receives a greater audience.

    About Shaheryar (Sherry). Well he brings in, however poorly, a socialist and communist perspective just like Adnaan Sidiqui brings in Islamist perspective; of course here we are speaking of ‘perspective’ only within a Pakistani context. The beauty of PTH is that it accommodates all points of views. But in my opinion we must also maintain civility towards every reasonable discourse whether we agree with it or not.

    Looking forward for your next contribution.
    With regards. PMA.

  15. Riaz Haq United States Unknow Browser Unknow Os says:

    “Gung-ho members of India’s middle class clamor for Israeli-style retaliation against jihadi training camps in Pakistan. But India can “do a Lebanon” only by risking nuclear war with its neighbor; and Indian intelligence agencies are too inept to imitate Mossad’s policy of targeted killings, which have reaped for Israel an endless supply of dedicated and resourceful enemies.”

    The preceding words were written by Pankaj Mishra and published in the Guardian newspaper just a few months ago. Mishra is the author of Temptations of the West: How to Be Modern in India, Pakistan and Beyond

    Writing for the Guardian newspaper, Mr. Mishra further added, “In an article I wrote for the New York Times in 2003 I underlined the likely perils if the depressed and alienated minority of Muslims were to abandon their much-tested faith in the Indian political and legal system. Predictably Hindu nationalists, most of them resident in the UK and US, inundated my email inbox, accusing me of showing India in a bad light.”

    For more, please visit: http://www.riazhaq.com/2008/12/can-india-do-lebanon-in-pakistan.html

  16. alok China Unknow Browser Unknow Os says:

    ohh actually u had a tete a tete with baitullah mehsud, and what else did he tell you?

    thanks for the lessons in geography! you are what Indian minister on Pakistani affairs? or are you an illegal bangladeshi?

  17. alok China Unknow Browser Unknow Os says:

    by the way my name is alok….drop that ‘e’ which comes from your bengali/bangladeshi inheritance

  18. YLH Pakistan Unknow Browser Unknow Os says:

    I would like to see all perspectives represented. However, it seems that sherry and his brigade are trying to impose censorship on PakTeaHouse.

  19. alok China Unknow Browser Unknow Os says:

    Thursday, January 22, 2009
    Kamila Hyat

    The writer is a freelance columnist and former newspaper editor

    The Pakistan military seems to have suffered a decisive defeat in war. While a fierce military operation has continued in Swat since July 2007, the extremist militants who now control nearly three quarters of the valley have, through these months, dramatically expanded their hold. Till early 2008, only about a quarter of the Swat area, home to 1.8 million people, fell under their grip. Today, they have closed down hundreds of schools, run their own ‘Shariah’ courts in the area and execute people almost each day at a central square in Mingora. Among the victims of the militants has been a school teacher who worked to support her children. She was labelled a prostitute, forced to wear ‘ghungroos’ (ankle bells) on her feet and then killed after being mercilessly demeaned. Other young women and their parents speak of threats and harassment aimed at preventing them from working or studying. Parents have been ‘visited’ by militants and asked to keep daughters indoors. Those killed include persons, some elderly, who dared to speak out against the militants. In most cases they were dubbed government ‘spies’.

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