Opinion World

Two Truths and Three Lies

The airstrike at Balakot was a credible and controlled escalation. However, the government’s rhetoric on casualties has hurt India’s credibility.

In the early hours of February 26, 2019, the Indian Air Force carried out air strikes in Pakistan’s Muzaffarabad region. This is the first time since 1971 that India has deployed military force in the territory of Pakistan proper (as opposed to areas adjacent to the line of control). It is no coincidence that the targets chosen were in Khyber Pakhtunkhwa (KPK) province, a stronghold for Prime Minister Imran Khan’s Pakistan Tehreek-e-Insaaf (PTI) party.

India has long struggled to come up with a suitable response to attacks by Pakistan-based terrorist groups on Indian soil. The armed forces have for many years presented options for limited military operations on Pakistani soil, upto and including the rumoured “Cold Start Doctrine.” In theory, a quick incursion and strike against terrorist leaders or infrastructure is a low-risk “controlled escalation” by India: if there is no confrontation between Indian and Pakistani armed forces during such a strike, Pakistan would have to be the first to use force against official military targets in order to retaliate. (This is no different from declaring a war; a costly decision that–again, in theory–the government of Pakistan would hesitate to make.)

The events of the past few weeks have put that theory to the test. The results can be described as a partial success. India has sent an unmistakable message about its ability to strike high-value targets in Pakistan. Unfortunately, we seem to have miscalculated Pakistan’s willingness to escalate: Pakistani aircraft moved to strike against Indian military targets on February 27. Still, neither side seems to have much appetite for further escalation.

Both governments face a modern-day inversion of Xeno’s Paradox: each desires to take half-steps closer to the threshold of war, but neither truly wants to close the gap between skirmish and outright warfare, because neither can guarantee that such escalation will stop short of the nuclear threshold. The capture and subsequent release of IAF Wing Commander Abhinandan Varthaman has created an avenue for both sides to walk away from the conflict while claiming success for domestic audiences. Cross-border shelling may well continue, but new incursions seem like an unnecessary risk.

Even as events develop, it is useful to pause and assess the extent to which relations between the two countries have changed. I believe that India has presented five claims in carrying out this airstrike, and in subsequent statements regarding it. Two of these claims are indisputably true; one is a white lie of sorts, not so much untrue as fuzzy and hard to verify; the last two are demonstrably false. These claims may not affect how the current standoff is resolved, but they have significant implications for how India will consider responding to future terrorist attacks.

Article 2(4) of the Charter of the United Nations bans any military action by one state in or against the sovereign territory of another state. Article 51 of the Charter, however, establishes certain exceptions to this rule. One exception is that states can resort to force if authorised to do so by the UN Security Council. The other is that states may act in pursuance of the “customary and inherent right to self-defense”. The precise extent of actions covered by this right is a subject of constant debate, since the state of customary international law is subject to regular reinterpretation. Broadly speaking, however, it is understood to encompass three scenarios: armed self-help, hot pursuit, and preemptive self-defense.

“Self-help” is a situation in which a state is attacked from the territory of another state. The understanding is that, in responding to this armed attack, the defending state is not restricted to acting only within its own borders – if circumstances require it, the response may extend into the territory of that other state. “Hot pursuit” is an extension of this principle: if the forces of a state are fighting or pursuing forces opposed to that state, and the latter should cross an international border, then the pursuing forces are justified in continuing even into the territory of another state.

“Preemptive self-defense” is the least well-defined of these scenarios, requiring that a state that has knowledge of an imminent attack upon its territory need not wait for that attack to be completed before responding; instead, it may take actions necessary to neutralise – ie, preempt – that threat, even if this means infringing upon the sovereignty of another state. The emphasis on imminence – that the attack should be so pressing that the state using force should have no time to attempt or even deliberate alternate means – dates back to a border scuffle between the US and Canada in 1837. (Because the confrontation centred on a ship named the Caroline, this standard has come to known as the Caroline Test.)

The official statement of the Indian government, as presented by Foreign Secretary Vijay Gokhale, makes a composite claim to justification under international law. The statement begins by making reference to the Pulwama attack, but quickly moves on to the various other terrorist attacks in India attributed to Jaish-e-Mohammad (JeM), the group held responsible for the Pulwama suicide bombing. It then further states that JeM leaders have found safe haven in Pakistan; that the group operates various recruitment and training facilities in Pakistan; and that attacks the group has launched on India have originated in Pakistan.

This, then, is the first and strongest of India’s claims – call it the ‘safe-haven’ claim. Unless one is the government of Pakistan, this claim is both uncontroversial and incontrovertible. Even this seems to be changing: while Pakistan continues to ask for evidence linking JeM to Pulwama and other attacks, Pakistan’s Foreign Minister Shah Mahmood Qureishi recently conceded that JeM leader Masood Azhar was indeed in Pakistan. (Subsequent unconfirmed reports have claimed Azhar was unwell, or even deceased in hospital.)

In and of itself, the safe-haven claim is already sufficient for India to justify attacking JeM bases in Pakistan. Such an attack would be an exercise of the right to armed self-help, and is identical to the legal basis claimed by the US for sending forces to Afghanistan in 2001. At the time, the US government described the Taliban as “unable or unwilling” to act against Al Qaeda forces in Afghanistan. If one is to apply the same standard, then unless Pakistan demonstrates the ability and the will to crack down on groups such as JeM, India can justifiably respond to future attacks by the group with airstrikes or even incursions by ground forces into Pakistan.

Interestingly, though, the statement stops short of making this claim. Instead, it pivots to the hazier claim of preemptive self-defense. The Foreign Secretary stated that India had intelligence regarding an impending attack that would be launched by JeM fighters located in Balakot – at a facility India describes as a JeM camp – and that this attack was likely to proceed any minute. The only way India could preempt this imminent threat was to strike against the terrorists before they set out from Balakot and other facilities in the area. This is the legal basis India actually asserts for carrying out the airstrikes, and it is a textbook invocation of the Caroline test.

The challenge with a Caroline-style claim is that the relevant facts are exceptionally hard to determine. By its very nature, intelligence regarding an imminent terrorist attack is a secret. Any public release of that information may put intelligence assets – sources and methods – at risk of being compromised. So one is left with little choice but to accept the government’s word that such a threat was credibly demonstrated. On this issue, too, India can rely on US practice in the War on Terror – albeit the US interpretation of “imminent threat” is far more problematic than their stance on safe havens.

Why did India decide to press forward with a preemptive self-defense claim, despite these difficulties? Perhaps because it provides an inherent rationale for de-escalation. If one says one was forced to act to preempt an imminent threat, then one has no reason to launch further strikes soon after the first. Having claimed the strike was successful in neutralising the threat, it would defy credibility to say one had evidence of another imminent threat that necessitated another attack. The preemption claim thus signals that India is not contemplating repeated airstrikes, preferring to de-escalate after the first one. This claim is a white lie: its veracity is fuzzy, but it is clearly deployed in service of a good and beneficial objective.

Less excusable, however, are the various elements of the government and the ruling party claiming that anywhere between 250 and 400 terrorists were killed in the attack. It is worth noting that the original statement from Foreign Secretary Gokhale was deliberately vague in this regard, saying only that “a very large number” of terrorists were killed. It is subsequent speakers that have attempted to turn this into a specific number, and bristled if the accuracy or basis of these statements was questioned.

All of these claims were revealed to be fabrications once Chief of Air Staff BS Dhanoa correctly and categorically stated that the Air Force does not have and cannot produce a death count. (Normally speaking, accurate reporting of casualty numbers from an air strike requires on-ground intelligence and surveillance, which counts bodies at the site or removed, persons shifted to hospitals, or persons evacuated apparently unhurt etc. If India has access to such intelligence, then it has not been cited in support of any numerical claims as of date.)

The third of the lies among India’s claims is the characterisation of this airstrike as “non-military.” As with the claim of preemption, the intent here is de-escalatory: India wishes to make clear that the strike targeted a terrorist training camp, and not Pakistani state assets, armed forces, or other targets that would be of military significance in a war. This is a novel use of the term ‘non-military’, however, and one that runs contrary to the letter and spirit of the Geneva Conventions, to which India is a state party. The principle articulated in the Geneva Conventions is that any action involving the armed forces of even one state party to an armed conflict is a military action.

It is, of course, possible for the armed forces to be involved in non-military actions. The delivery of humanitarian aid, or the assistance with search and rescue or evacuation operations after a natural disaster, for instance, would be non-military actions even when carried out by the armed forces of a state. By no stretch, however, can one extend this meaning of non-military to encompass aerial bombardment.

As previously noted, India’s statement already included multiple indications of limited escalation, most notably the preemption claim; combined with a history of strategic restraint, there was no reason to throw in this novel – and patently false – claim thereafter. If anything, it weakens the credibility of what has come before, much as the exaggerated claims of casualty numbers do.

India could have gotten away with two truths and one (white) lie; when the dissembling and exaggeration exceeds the verifiable content, however, the net effect is to make it easier for someone to cast doubt on even the rock-solid claim that Pakistan provides safe haven and support to terrorist groups. Nonetheless, the claim that ultimately proves most true and most persuasive may not be drawn from any of the statements above. Rather, it is the one displayed in action: the fact of the airstrike itself.

IAF Mirages were able to penetrate Pakistani airspace, launch munitions, and return to India unchallenged. The Mirage is a part of India’s strategic platform, which means the munitions delivered could be nuclear-armed. The strike is equivalent to claiming that India’s past restraint was a strategic – hence, reversible – choice. This, too, is an indisputable truth – and it is one Pakistan will have to factor into future decisions to use force against India, whether through its armed forces or terrorist proxies.

India could probably have gotten away with two truths and a (white) lie. In tipping the balance towards falsehood – for no better reason than short-term political gains – we are squandering a valuable resource: the credibility of our words in the global arena. The doctrine of strategic restraint may or may not have outlived its usefulness, but the value of such credibility is evergreen. Even as we take steps to protect Indian citizens and security forces from attack, we would do well not to damage our reputation with unforced mendacity.

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About the author

Ameya Ashok Naik

Ameya Naik is an Associate Fellow for Geostrategy at the Takshashila Institution, focusing on Indian foreign policy and international law, and a graduate of The Fletcher School of Law and Diplomacy. The views expressed here are personal.