In a statement at the Arria Formula meeting, India’s Deputy Permanent Representative to the UN in New York, without naming Pakistan, said, “a State would be compelled to undertake a pre-emptive strike when it is confronted by an imminent armed attack from a non-state actor operating in a third state.”
February 25, 2021; India on Wednesday held Pakistan to account at the United Nations Security Council (UNSC) for harbouring terrorists and justified the cross-border action against “non-state actors” as an act of “self-defence”.
The statement was made at the Arria Formula meeting organised by Mexico titled “Upholding the collective security system of the UN Charter: the use of force in international law, non-state actors and legitimate self-defense”.
Without naming Pakistan, India’s Deputy Permanent Representative to the UN in New York, Nagraj Naidu said, “a State would be compelled to undertake a pre-emptive strike when it is confronted by an imminent armed attack from a non-state actor operating in a third state.”
Adding that the state then is “exonerated” from any international obligation towards the “aggressor” state giving the example of the 9/11 attacks and US’ actions thereafter.
“This state of affairs exonerates the affected state from the duty to respect, vis-a-vis the aggressor, the general obligation to refrain from the use of force. In fact, Security Council resolutions 1368(2001) and 1373(2001) have formally endorsed the view that self-defense is available to avert terrorist attacks such as in the case of the 9/11 attacks,” he said.
While Article 2(4) of the UN Charter requires that states refrain from the use of force, Ambassador Naidu explained that the drafting history of Article 51 of the UN Charter and the relevant San Francisco Conference Report of June 1945 that considered Article 2(4) of the UN Charter mentions outlined “the use of arms in legitimate self-defence remains admitted and unimpaired.” Article 51 explicitly acknowledges the pre-existing customary right of self-defence, as recognized by the International Court of Justice and the UN Security Council by stating that “nothing in the present Charter shall impair the inherent right of individual or collective self-defence.”
In a direct attack against Pakistan for providing havens and support to terrorists, he said, “some states are resorting to proxy war by supporting non-state actors such as terrorist groups to evade international censure. Such support to non-state actors has ranged from providing and equipping the terrorist groups with training, financing, intelligence and weapons to logistics and recruitment facilitation.”
Reminding the gathering of 15 member-states of the attacks India has been subjected to for decades at the hands of such “proxy cross-border and relentless state-supported” terrorism from India’s “neighbourhood”, he said, “Whether it is was the 1993 Mumbai bombings, or the random and indiscriminate firings of 26/11 which witnessed the launch of the phenomenon of lone-wolves or more recently, the cowardly attacks in Pathankot and Pulwama, the world has been witness to the fact that India has repeatedly been targeted by such non-state actors with the active complicity of another host State.”
On India’s surgical strike of September 2016 against terrorist launch pads across the Line of Control in Pakistani-Occupied-Kashmir (PoK), the Indian diplomat cited Article 51 of the UN charter saying that it is not confined to “self-defence” in response to attacks by states only.
“The right of self-defence applies also to attacks by non-state actors. In fact, the source of the attack, whether a state or a non-state actor, is irrelevant to the existence of the right of self-defence,” he said.
Further, he said, “Non-state actors such as terrorist groups often attack states from remote locations within other host states, using the sovereignty of that host state as a smokescreen.”
Spelling out three scenarios, he said that a growing number of States believe that the use of force in self-defence against a non-state actor operating in the territory of another host State can be undertaken if: “1. The non-state actor has repeatedly undertaken armed attacks against the State; 2. The host State is unwilling to address the threat posed by the non-state actor; 3. The host State is actively supporting and sponsoring the attack by the non-state actor.”
An “Arria formula” meeting is an informal meeting of members of the UNSC, which must be convened by a member of the Security Council. It is a relatively recent practice of the members of the Security Council to have a frank and private exchange of views, within a “flexible procedural framework”.
India has always opposed this framework since it is a forum often “misused” by States.
“We would like to, however, place on record our reservations against this particular format of meetings, since there have been occasions in the past where this format has been misused,” Ambassador Nagraj Naidu had said at the outset of his remarks.