Applying International Law to Pulwama
From an etymological viewpoint, all abstract concepts are equal. This, however, may not be true in the real world of India-Pakistan relations where two concepts of terrorism and aggression compete for primacy. While the concept of the latter is an ancient construct of world order that has been part and parcel of all the international legal orders, that of the former is nascent and underdeveloped. The concept of aggression denies territorial legitimacy of states whereas terrorism, as a phenomenon, has its linkages with power. In this context, Pulwama incident, which saw the death of over forty personnel of Central Police Reserve Force (CPRF) in the territorial limits of the Indian-Occupied Kashmir (IOC) on 14th February 2019, provides an opportunity to look at the central themes of the foreign policies of Pakistan and India towards each other from an international law perspective. It is clear that the foreign policy of Pakistan, in the matter, essentially argues against the aggression of India; conversely, India’s case rests on advocating against role of Pakistan in terrorism on its soil.
India’s Case: Role of Pakistan in Terrorism
The nub of India’s stance is that Pakistan played a role in Pulwama attack. India was quick to categorize the incident as ‘terrorist attack’ without investigating into facts, and by rejecting Pakistan’s offer to cooperate for a joint investigation into the incident. This is not the first time that India has blamed Pakistan for such incidents. Prior to this, India was quick, many a time, to point fingers at Pakistan. Earlier, India had linked Uri (18th September 2016) and Pathankot (2nd January 2016) incidents to Pakistan. The propensity to blame Pakistan for any terrorist attack in Kashmir or on Indian soil is now part of India’s foreign policy. Unfortunately, the policy is not sustainable. It is a matter of record that international law does not treat terrorism central to its scope; the discourse about terrorism is by way of exceptionalism and it is only for political reasons that terrorism is being internationalized. This point was articulated by Professor Daniel Moeckli of the University of Zurich, Switzerland, in his article ‘The Emergence of Terrorism as a Distinct Branch of International Law’, wherein he concluded:
“…the emergence of terrorism law is characteristic of the general trend towards the fragmentation and compartmentalization of international law….The emergence of the international anti-terrorism regime is equally the consequence of political pressures, albeit of a different sort: it is the result of a hegemonic attempt by certain states to impose a global approach to countering terrorism that mirrors their own domestic anti-terrorism policies.”
The so-called international law related to terrorism is not supported by the jurisprudence nor does it get its sanction from the customary international law.
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