Aman Kumar
A few Special Rapporteurs and an Independent Expert of the United Nations Human Rights Council have written to both India and Pakistan regarding the war these countries fought in May 2025. This ‘Communication’ asks for ‘Observations’ by the two countries on a list of questions. The Communication touches upon the issues of Use of Force, right of Self-Defence, violation of Human Rights, right to Self Determination, and Countermeasure. It also focuses on the suspension of the Indus Water Treaty (by India) and the Simla Agreement (by Pakistan). It dedicates a lot of space on the former, analysing its ‘abeyance’ by India from the perspective of human rights and law of treaties (countermeasure). Here, I will discuss these issue by clubbing them in three categories: a) use of force, b) human rights violations and, c) treaty regime.
Use of Force
The Communication, by referring to Article 2(4) of the UN Charter and Customary International Law (CIL), notes that India is prohibited from threat or use of force against Pakistan ‘whether such force is targeting State or non-State actors’. Then, referring to self-defence provision of Article 51 of the Charter, it clarifies that exercise of this right of self-defence must be ‘necessary and proportionate in response to an armed attack committed by a foreign State, whether directly by State forces or where a State “sends” non-State forces to attack’. It is obvious that this is in reference to individual self-defence, and the Communication cites ICJ’s Nicaragua Merits decision on the point of self-defence. While ‘necessity and proportionality’ operate as uniform legal requirements for both individual and collective self-defence under Article 51 and customary international law, their assessment is context dependent. By contrast, the question of whether a state has “sent” non-state armed groups assumes heightened doctrinal importance and thus is different for individual and collective self-defence. This becomes significant for the question of ‘attribution’ as was the case in Armed Activities on the Territory of the Congo (DRC v Uganda). In that case, the ICJ ruled that the attacks on Uganda were not attributable to Democratic Republic of Congo (DRC) and hence declined to settle the broader legal question of self-defence against non-state actors. In the current situation, assuming a legal dispute, it would become necessary to determine that the Pahalgam attacks are attributable to Pakistan.
On this, the Communication acknowledges that the responsibility for the attack was initially claimed and later repudiated by The Resistance Front (TRF), ‘a group affiliated with Lashkar-e-Taiba, which has been listed under Security Council counter-terrorism sanctions since 2005 as associated with Al Qaeda’. It refers to the UNSC Report (S/2025/482). I reproduce the relevant paragraph in full below:
84. On 22 April, five terrorists attacked a tourist spot in Pahalgam, in Jammu and Kashmir. Twenty-six civilians were killed. The attack was claimed that same day by The Resistance Front (TRF), who in parallel published a photograph of the attack site. The claim of responsibility was repeated the following day. On 26 April, however, TRF retracted its claim. There was no further communication from TRF, and no other group claimed responsibility. Regional relations remain fragile. There is a risk that terrorist groups may exploit these regional tensions. One Member State said the attack could not have happened without Lashkar-e-Tayyiba (LeT, QDe. 118), support, and that there was a relationship between LeT and TRF. Another Member State said that the attack was carried out by TRF, which was synonymous with LeT. One Member State rejected these views and said that LeT was defunct. [Emphasis supplied]
Who are these member states is not mentioned in the Report. However, this Report helps us in understanding the argument about role of non-state actors in armed attack. Article 51 of UN Charter does not clarify what is the meaning of an armed attack and whether an attack by a non-state actor can trigger the self-defence mechanism under it. The clarification was provided by the ICJ in Nicaragua Merits decision where the court ruled that “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 against another State of such gravity as to amount to’ (inter alia) an actual armed attack conducted by regular forces, ‘or its substantial involvement therein’” (para 195). The court took this definition from Article 3(g) of the Definition of Aggression annexed to General Assembly resolution 3314 (XXIX).
In the context of the current dispute between India and Pakistan, the question is whether the attackers were sent by Pakistan. Since India claimed that the attack was sponsored by Pakistan, it is under the obligation to provide evidence for it. And that seems to missing since the Communication also notes that ‘India has not disclosed credible evidence that the militants who committed the Pahalgam attack were sent to attack India by the Government of Pakistan’. Although India can provide evidence to HRC as a Response to this Communication, one wonders why such evidence have not been presented to the UN already? Where can we find such official statements?
Statement by officials
India sent seven groups of its Parliamentarians to many countries in the aftermath of Operation Sindoor. On 22nd May, in its Weekly Media Briefing the Ministry of External Affairs spokesperson called it a ‘a political mission’ aimed at conveying to the world ‘our resolve to fight terrorism’. He mentions Pakistan by name – ‘We want to exhort the world to hold those responsible for cross-border terrorism accountable. Those have been practicing it for the last 40 years against India; that is Pakistan. Their actions need to be called out. They have to be held accountable for the terror attacks that they have carried out against India.’ For more factual details about these missions he asked us to refer to the ‘press releases that have been issued by the (Press Information Bureau) PIB’.
PIB Press Releases
The Press Release of the PIB regarding the visits by Indian parliamentarians give multiple reasons for such visits. I have collated and analysed these statements here. Only three out of the fifteen statements a clear reference is made to Pakistan or its involvement in the April terror attack. The delegation sent to Abu Dhabi ‘presented factual evidence to counter the disinformation and exposed Pakistan’s propaganda machinery’. However, whether these evidence pinned Pakistan for the terror attack is unclear. The delegation sent to South Korea ‘clearly explained Pakistan’s involvement in orchestrating the barbaric terror attack in Pahalgam on April 22’. This informs us that there is some evidence linking Pakistan to the terrorists who attacked. One hopes that this evidence will now be shared with the HRC and the authors of the Communication.
Statement by CCS
In addition to the statements made by these delegation, we can also look at any official statements made by government or its officials. International Law puts weight behind statements given by officials of a State. On 23rd April 2025, India’s Cabinet Committee on Security (CCS) decided inter alia to put IWT in abeyance with immediate effect. This decision was in of the nature of ‘unilateral declarations’. The ILC has defined unilateral declarations as follows: ‘A unilateral act of a State means a unilateral declaration formulated by a State with the intent of producing certain legal effects under international law.’ CCS decision of 23rd April fits within this definition. Now on to the legal effect of such declaration.
In the Nuclear Test Case, the ICJ had ruled that ‘declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations’ (para 43). If further noted that ‘(w)ith regard to the question of form, it should be observed that this is not a domain in which international law imposes any special or strict requirements… Thus the question of form is not decisive’ (para 45) This would mean that the decision of CCS would again fit the requirements. Referring to its decision in the Temple of Preah Vihear case, it noted that ‘the sole relevant question is whether the language employed in any given declaration does reveal a clear intention’. (para 45)
In addition to the statement by the CCS, can we look at any other statement to ascertain India’s claim against Pakistan? Can we read the speech of Minister of External Affairs Shri S Jaishankar as an statement of value under international law? The answer is yes. Referring to numerous decision of the ICJ, the ILC notes in its Commentary on the Guiding Principles applicable to Unilateral Declarations of States capable of creating Legal Obligations, 2006that ‘it is a well-established rule of international law that the Head of State, the Head of Government and the Minister for Foreign Affairs are deemed to represent the State merely by virtue of exercising their functions, including for the performance, on behalf of the said State of unilateral acts having the force of international commitments’ (page 373.) As the ICJ noted in the Nuclear Test Case, ‘to have legal effect, there was no need for these statements to be addressed to a particular State, nor was acceptance by any other State required’ (para 50), making Jaishankar’s statement made in the Indian parliament valid for consideration for our current discussion.
Jaishankar’s speech
While the PIB press releases rarely name Pakistan, Jaishankar’s speech makes explicit that the mention of cross-border terrorism was linked with Pakistan. He noted that at the time, Pakistan was a member of the UNSC and India was not, hence the government decided to use diplomatic outreach with the aim of bringing out ‘to the international community Pakistan’s long standing use of cross-border terrorism… (and) how this particular attack was meant to target the economy of Jammu & Kashmir, and to sow communal discord among the people of India.’
On 25 April, the UNSC issued a statement ‘condemn(ing) in the strongest terms the terrorist attack in Jammu and Kashmir on 22 April’. Jaishankar celebrates this statement as a diploatic victory for India. However considering the absence of Pakistan’s name in the statement, this seems not much of a diplomatic victory. Jaishankar pointed out that ‘the members of the Security Council condemned in the strongest terms the terrorist attack, they affirmed terrorism in all its forms and manifestations constitutes one of the most serious threats on international peace and security, and most important, the Council underlined the need to hold the perpetrators, organizers, financers and sponsors of this reprehensible act of terrorism accountable and bring them to justice’. He claimed this was one of their objective and hoped that India’s success in getting this statement should be appreciated. But what is so unique about this statement that Jaishankar wants appreciation for?
Legally speaking, this the UNSC statement does nothing for India or its case against Pakistan. Politically too, there is nothing new or unique. One simple comparison between the UNSC Statement on terrorist attack in Pahalgam, and the one issued after terrorist attacks in Kunduz in northern Afghanistan on 11 February 2025, and Balochistan province in Pakistan itself, on 21 May 2025 will tell anyone that the statement quoted by Jaishankar in the hope of appreciation is also present in the other two UNSC statements. It is generic, as opposed to a victory for Indian diplomacy. I do not want to knit pick here, but while the statements issued for India and Afghanistan urged all states ‘to cooperate actively with all relevant authorities in this regard’, the one issued for Pakistan urged all states ‘to cooperate actively with the Government of Pakistan in this regard’. Now if the argument is that Pakistan managed to get its name in the statement only because of a seat at the UNSC, then I would counter by saying that Afghanistan also managed to get exactly the same statement like India, and for an attack which happened two months prior to the attack on India.
Moreover, Jaishankar said in the parliament that ‘Pakistan defended the TRF (and) tried to get any mention of TRF excluded (from the UNSC statement), and in fact the Pakistani Foreign Minister told his Parliament that this is a great diplomatic achievement’. Considering that there is no mention of TRF in the 25th April statement by the UNSC, it is clear that Pakistan was successful in protecting that terrorist group. Here, I must also point out that at the time and date of UNSC Statement—25 April 2025—TRF had not retracted its claim for the attack, and yet, the UNSC statement does not mention it. Jaishankar wants us to celebrate the subsequent designation of TRF as a global terrorist organisation by the USA, as opposed to naming it in a statement by the UNSC as India’s diplomatic victory, but I think I will pass.
Legitimate target and right of self-defence
Coming back to the questions of law, Jaishankar’s statement notes that through its attack from 07th May onwards ‘India is exercising its right to defend itself against terrorism; the targets which were hit on the 7th of May are known terrorist headquarters and infrastructure; there will be no mediation, anything between us and Pakistan is bilateral; and we are responding to Pakistani military attacks, because after Operation Sindoor was launched, they had started targeting our military facilities. And we will continue to hit the Pakistani military’. I have kept the present tone of the statement since Operation Sindoor is still ongoing.
Jaishankar’s statement makes it clear that the there are two parts of India’s attack, and that both are in exercise of its right of self-defence. He claims that India is defending against terrorists attacks by attacking terrorist headquarters and infrastructure in Pakistan, and is attacking Pakistani military establishment again exercising its right of self-defence against Pakistan’s attack on India. It is the first part which takes us back to the point with which I started this conversation – attribution.
Are the attacks by the terrorists attributable to Pakistan? We looked at the statements released with regards to various visits by the Indian parliamentarians and barring a few, they are silent on this connection. At the UN too, India does not seem to have provided any evidence of this connection. In his statement in the parliament, give two months after the attack, Jaishankar did not provide any clear evidence of the connection. One hopes that as a Reply to this Communication, India will provide direct evidence linking the terrorists to Pakistan. Otherwise the ‘new normal’ will be illegal under international law.
The Communication further claims that ‘(t)here is no separate right to unilaterally use military force in foreign territory in order to counter terrorism’. I will discuss this in the next part, and Communication’s point about State Responsibility and Treaty regime.
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