By V. S. Mani appeared in "The Hindu" on June 30, 1999

THE PRINCIPLE of prohibition of the threat or the use of force, well enshrined in Article 2(4) of the U.N. Charter and reaffirmed in Article I (vi) of the Shimla Agreement, has been further elaborated by several consensual law-making decisions of the U.N. General Assembly including, in particular, the 1970 Declaration on the Principles of International Law Concerning Friendly Relations (the United Nations euphemism for the principles of peaceful coexistence), and the 1974 Declaration on the Definition of Aggression.

The 1970 Declaration on Friendly Relations, besides restating Article 2(4) of the U.N. Charter, emphasises that such threat or use of force ``shall never be employed as a means of settling international issues.'' It characterises a war of aggression as a ``crime against peace, for which there is responsibility under international law''. Indeed, this responsibility is both delictual and criminal - the criminal responsibility befalls not only the state perpetrating the aggression but also the high functionaries of the state including those of the armed forces at whose instance the aggression was mounted. The Friendly Relations Declaration also reminds states of their duty to refrain from war propaganda (Article II of the Shimla Agreement imposes a duty on both parties to take all steps to prevent hostile propaganda against each other). It also postulates the principle of the inviolability of boundaries and other ``international lines of demarcation'' such as armistice or ceasefire lines,'' established by or pursuant to an international agreement to which it (a state) is a party.'' The LoC is evidently entitled to absolute respect by Pakistan.

The Friendly Relations Declaration further reminds every state of its duty ``to refrain from organising or encouraging the organisation of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State.'' Further, ``Every state has the duty to refrain from organising, instigating, assisting or participating in acts of civil strife or terrorist acts in another state or acquiescing in organised activities within its territory directed towards the commission of such acts...'' (This postulate is also reiterated as part of the principle of non-intervention in the same declaration). There is clear evidence to show that the infiltrators this time are regulars, irregulars and mercenaries despatched by the Pakistani army, and not Kashmiri ``freedom fighters'' as claimed by Pakistan.

``The territory of a state shall not be the object of military occupation,'' or ``the object of acquisition'', resulting from unlawful threat or use of force by another state, proclaims the Friendly Relations Declaration. ``No territorial acquisition resulting from the threat or use of force shall be regarded as legal'', evidently because an illegal resort to force can only produce situations that are per se illegal. (Article 5(3) of the 1974 Declaration on Definition of Aggression reaffirms this principle).

The principle of prohibition of force recognises one exception - the right of self-defence. Article 51 of the U.N. Charter speaks of ``the inherent right (of every state) of individual or collective self-defence if an armed attack occurs'' against it. (The French version of the Charter speaks of aggression armee. The right of self-defence is fundamentally conditioned by the customary international law principles of necessity (of warding off the attack), and of proportionality (the force to be used in self-defence not to be out of proportion with the danger to be warded off), besides respect for the principles of international humanitarian law applicable in armed conflict.

What, then, constitutes an ``armed attack''? As the International Court of Justice held in the Nicaragua case, ``an armed attack must be understood as including not merely action by regular armed forces across an international border, but also the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force of such gravity as to amount to ``(inter alia) an actual armed attack conducted by regular forces ``or its substantial'' involvement therein'' (ICJ Reports 1986, p.103). The Court thus gave its judicial imprimatur to Article 3(g) of the Declaration on the Definition of Aggression. It further rules that ``in customary (international) law, the prohibition of armed attacks may apply to the sending by a state of armed bands to the territory of another state, if such an operation, because of its scale and effects, would have been classified as an armed attack rather than a mere frontier incident had it been carried out by regular armed forces.'' (Id.).

The Declaration on Definition of Aggression also includes in the definition of aggression: (a) ``The invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack,'' (b) ``use of any weapon by a state against the territory of another state,'' and (c) ``an attack by the armed forces of a state on the land, sea, or air forces... of another state.'' (Article 3, (a), (b), & (d).

In view of the above, the acts of unlawful use of force by Pakistan against and on the Indian territory amount to acts of such sufficient gravity as to constitute ``armed attacks'' and India is well within its ``inherent right of self-defence'' to take the necessary forcible measures to push out the Pakistani infiltrators and the accompanying mercenaries. These defensive measures include aerial bombardment of the posts occupied by these intruders on the Indian side of the LoC and measures to cut off their supply lines originating from Pakistani bases along or close to the LoC. Yet, by and large, India seems to have confined its defensive actions to its own side of the LoC. It will, however, be within its rights of self-defence, if it decides to go across the line to destroy the supply bases that sustain the infiltrators on the Indian side of the line. The right of self- defence extends to the complete routing of the present danger, even keeping in mind the principle of proportionality. This will, of course, depend on a military judgment backed by a political decision, which will obviously be dictated by diverse domestic and external considerations.