{"id":25355,"date":"2025-07-04T08:00:26","date_gmt":"2025-07-04T06:00:26","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/de\/?p=25355"},"modified":"2025-11-14T15:07:38","modified_gmt":"2025-11-14T14:07:38","slug":"oh-self-defence-where-art-thou","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/oh-self-defence-where-art-thou\/","title":{"rendered":"Oh Self-Defence, Where Art Thou?"},"content":{"rendered":"

On 7 May 2024, India conducted\u00a0airstrikes<\/u><\/a> across the Line of Control, claiming it was acting in response to a terrorist attack in Pahalgam<\/u><\/a>. The operation was termed Operation Sindoor<\/u><\/a>. The Raksha Mantri (Defence Minister) described the strikes as an exercise of India\u2019s \u201c<\/u>right to respond<\/u>\u201d<\/u><\/a> to cross-border terrorism. In response, on 11 May, Pakistan launched Operation Bunyan Ul Marsoos<\/u><\/a>, targeting Indian airbases, and formally invoked<\/u><\/a>\u00a0the right to self-defence.\u00a0India, by contrast, framed its actions in terms of proportionality and necessity, deliberately avoiding explicit invocation of Article 51 of the UN Charter.\u00a0This article examines the legality of both operations under international law and argues that neither state\u2019s conduct meets the legal threshold required to justify the use of force or self-defence.<\/p>\n

Operation Sindoor: <\/strong>A Marriage <\/strong>W<\/strong>ithout<\/strong>\u00a0<\/strong>Self-Defence<\/strong><\/p>\n

India framed Operation Sindoor in the language of international law. Foreign Secretary Vikram Misri described the action as both measured and proportionate<\/u><\/a>, affirming it as a rightful response to an armed terrorist attack.\u00a0Internationally,\u00a0several states<\/u><\/a> and political leaders<\/u><\/a> endorsed India\u2019s claim to self-defence, lending diplomatic support to its legal framing. Within national media discourse<\/u><\/a>, editorials<\/u><\/a> and columns<\/u><\/a> supported this legal interpretation, framing the strike as a justified counter-terrorism measure consistent with the \u201cunable or unwilling doctrine\u201d. In academic and strategic circles, the operation was analysed<\/u><\/a> as a calibrated doctrinal shift that maintained legal proportionality while reaffirming deterrence. On international platforms, India\u2019s top diplomat<\/u><\/a> and parliamentary delegation<\/u><\/a> reiterated the legitimacy of the strikes by asserting the country\u2019s right to defend itself. Finally, in the realm of global public commentary, political figures such as John Bolton\u00a0endorsed<\/u><\/a> the operation as a justified and necessary act of self-defence.<\/p>\n

The \u201cunwilling or unable\u201d doctrine permits a state to use force in self-defence against non-state actors operating from another state\u2019s territory when the latter is deemed unwilling or unable to suppress the threat. However, this doctrine has attracted widespread scholarly criticism.\u00a0Legal scholars argue that the doctrine violates Article 51<\/u><\/a> by authorising\u00a0the use of force against states not responsible for an \u201carmed attack,\u201d\u00a0lacks<\/u><\/a>\u00a0consistent<\/u><\/a> state practice,\u00a0and\u00a0fails<\/u><\/a> to meet the customary requirements of necessity, imminence, and proportionality.\u00a0The doctrine has also been described<\/u><\/a> as fundamentally incompatible with the framework of the UN Charter. Taken together, these critiques largely invalidate claims of self-defence grounded in the \u201cunwilling or unable\u201d doctrine.<\/p>\n

India\u2019s \u201cright to respond\u201d, which was predicated on Pakistan\u2019s alleged harbouring of terrorists<\/u><\/a> responsible for the Pahalgam attack, faces significant legal obstacles under international law.\u00a0The International Court of Justice (ICJ), in Military and Paramilitary Activities in and against Nicaragua<\/em><\/u><\/a> (1986), has clarified that self-defence against non-state actors is only justified when their conduct can be attributed to a state\u00a0\u2014\u00a0requiring proof that the state exercised effective control over the group, as mere support or harbouring does not meet the threshold of an \u201carmed attack\u201d under Article 51 (para. 195). The ICJ reaffirmed this strict attribution standard in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory<\/em><\/u><\/a> (2004, para. 139), and\u00a0in Armed Activities on the Territory of the Congo<\/em><\/u><\/a> (2005), where Uganda\u2019s arguments failed to demonstrate that the\u00a0Democratic Republic of the Congo perpetrated or legally endorsed attacks by non-state actors based on its territory (paras. 146\u2013147).\u00a0This principle was further clarified in Application of the Convention on the Prevention and Punishment of the Crime of Genocide<\/em><\/u><\/a> (2007), where the Court held that attribution requires effective control over each specific operation where violations occurred (para. 400). This high threshold is codified in Article 8 of the International Law Commission\u2019s Articles of State Responsibility<\/u><\/a>, which allows attribution only when non-state actors act on the instructions of, or under the direction or control of a State.<\/p>\n

In the case of India\u2019s Operation Sindoor, official statements<\/u><\/a> and press briefings<\/u><\/a> referred to Pakistan as providing a safe haven or tacit support to the perpetrators of the Pahalgam attack. However, such allegations do not meet the legal threshold for attributing the conduct of non-state actors to a state. As clarified and reaffirmed by the ICJ, attribution requires clear evidence that the state directed or controlled the specific operations in question. Mere harbouring or ideological sympathy\u00a0\u2014\u00a0without proof of effective control\u00a0\u2014\u00a0remains insufficient to justify the use of force in self-defence under Article 51 of the UN Charter. Thus, India\u2019s response does not satisfy the strict legal conditions for the use of force in self-defence under international law.<\/p>\n

Operation Bunyan<\/strong> Ul Marsoos: A Wall <\/strong>W<\/strong>ithout the Brick of Self-Defence<\/strong><\/p>\n

Pakistan, in contrast, has emphasised<\/u><\/a>\u00a0its inherent right of self-defence under Article 51 in response to what it characterises as an unlawful act of aggression. By issuing a formal communication<\/u><\/a> to the United Nations and framing its response<\/u><\/a> within established international law, Islamabad positioned its retaliatory measures as a lawful use of force in self-defence<\/u><\/a>. International observers have concluded<\/u><\/a> that Pakistan\u2019s response constituted a legally proportionate act of self-defence.\u00a0India\u2019s Operation Sindoor was criticised for breaching fundamental principles of international law<\/u><\/a>. The operation has been described as a dangerous precedent<\/u><\/a>\u00a0that risks eroding the established constraints of jus ad bellum<\/em>\u00a0<\/em>\u2014\u00a0namely, the absence of publicly verifiable intelligence and the unilateral nature of the strikes without UN Security Council authorisation. India\u2019s response has been framed as a disguised act of political coercion<\/u><\/a> aimed at manufacturing a strategic narrative of deterrence without satisfying legal requirements.<\/p>\n

However, Pakistan\u2019s invocation of self-defence under Article 51 of the UN Charter in response to Operation Sindoor also suffers from serious doctrinal infirmities. Under international law, not every use of force amounts to an \u201carmed attack\u201d; to justify self-defence, the force must reach a threshold of gravity, such as \u201caction by regular armed forces across an international border\u201d or other grave forms of force (Nicaragua <\/em>case, para. 191).\u00a0In Oil Platforms (Islamic Republic of Iran v. United States of America)<\/em><\/u><\/a> (2003), the Court reaffirmed that isolated or limited strikes\u00a0\u2014\u00a0even if unlawful under Article 2(4)\u00a0\u2014\u00a0may not rise to the level of an \u201carmed attack\u201d needed to trigger Article 51 (paras. 51\u201372). Although potentially a violation of Article 2(4), India\u2019s Operation Sindoor involved airstrikes on two discrete locations, Bahawalpur and Muridke, conducted as precision strikes rather than as part of a broader military campaign. As clarified by the ICJ in Nicaragua<\/em> and reaffirmed in Oil Platforms<\/em>, the use of force must reach a threshold of gravity, typically involving sustained combat operations, significant destruction, or high-intensity hostilities, to qualify as an \u201carmed attack\u201d under Article 51. In this case, the limited scale, short duration, and geographically contained nature of the strikes suggest they fall short of that threshold.<\/p>\n

Even if India\u2019s action qualified as an armed attack, Pakistan\u2019s retaliatory use of force still fails to meet the requirement of necessity under customary international law, as articulated in Legality of the Threat or Use of Nuclear Weapons<\/em><\/u><\/a> (1996, para. 41), which requires\u00a0that force be\u00a0the only available means of\u00a0averting further\u00a0attacks, with no peaceful alternatives remaining.\u00a0However, there was no indication that India intended to launch additional strikes, nor any evidence of an ongoing or imminent threat. Peaceful alternatives\u00a0such as diplomatic protest or recourse to the United Nations\u00a0remained available at the time.\u00a0Their availability, regardless of expected effectiveness, precludes the use of force under international law.<\/p>\n

In this context, Pakistan\u2019s response appears less as an act of necessity and more as a retaliatory measure. Yet, under the jus ad bellum<\/em> regime, forcible reprisals remain unequivocally prohibited. Pakistan\u2019s Article 51 notification to the Security Council may satisfy the procedural requirement, but this alone cannot cure a substantively weak self-defence claim. Ultimately, Pakistan\u2019s justification collapses under the weight of settled legal doctrine.<\/p>\n

Conclusion<\/strong><\/p>\n

In invoking the language of international law, particularly the right of self-defence, India and Pakistan were not engaging with law in a doctrinal sense, but rather staging performances of legitimacy for international and domestic audiences.<\/p>\n

India\u2019s claim that its airstrikes were a legitimate response\u00a0rests on the assertion that Pakistan harboured the perpetrators of the Pahalgam attack. Yet the Nicaragua <\/em>case affirms that even substantial support to non-state actors does not amount to an \u201carmed attack\u201d unless the state exercises effective control over their operations; something India has not demonstrated.\u00a0Conversely, the legitimacy of Pakistan\u2019s retaliatory strike also collapses, since\u00a0the\u00a0ICJ held that not every use of force amounts to an armed attack capable of justifying a forcible response. Even if India\u2019s operation violated Article 2(4), its limited scope lacked the gravity required to trigger lawful self-defence.\u00a0Neither state\u2019s conduct conforms to the legal parameters governing the use of force under international law.\u00a0Both states breached fundamental principles of international law in the course of their military operations. Each turned to the vocabulary of legality, but neither fulfilled its substance.<\/p>\n

The result is disquieting; both states invoke a right that neither can legally claim. In such a theatre of gestures, one is left wondering: \u201cOh! Self-defence, where art thou?\u201d<\/p>\n

 <\/p>\n

Editorial Note<\/strong>: The author\u2019s identity is known to the editorial team, but the name has been withheld for protection.<\/p>\n","protected":false},"excerpt":{"rendered":"

On 7 May 2024, India conducted\u00a0airstrikes across the Line of Control, claiming it was acting in response to a terrorist attack in Pahalgam. The operation was termed Operation Sindoor. The Raksha Mantri (Defence Minister) described the strikes as an exercise of India\u2019s \u201cright to respond\u201d to cross-border terrorism. In response, on 11 May, Pakistan launched […]<\/p>\n","protected":false},"author":35,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[3975,7631,4645],"authors":[7628],"article-categories":[6000],"doi":[],"class_list":["post-25355","post","type-post","status-publish","format-standard","hentry","category-uncategorized","tag-india","tag-pakistan","tag-self-defence","authors-anonymous","article-categories-article"],"acf":{"subline":""},"meta_box":{"doi":"10.17176\/20250704-143033-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25355","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/35"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=25355"}],"version-history":[{"count":5,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25355\/revisions"}],"predecessor-version":[{"id":25362,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/25355\/revisions\/25362"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=25355"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=25355"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=25355"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=25355"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=25355"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=25355"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}