Context: India should adopt a “lawfare strategy” - using international law and forums like the International Court of Justice (ICJ) to hold Pakistan accountable for sponsoring cross-border terrorism.
Relevance of the topic:
Prelims: SAARC Convention on Suppression of Terrorism, International Convention for the Suppression of the Financing of Terrorism, Terrorist Bombing Convention, Jurisdiction of ICJ.
Mains: Lawfare Strategy as a strategic tool to combat Pakistan-sponsored terrorism.
Apart from military actions like Operation Sindoor and diplomatic measures, India should also adopt a "lawfare" strategy to hold Pakistan accountable for sponsoring terrorism.
Lawfare Strategy
- Lawfare strategy means utilising laws, especially international laws and judicial platforms like the International Court of Justice (ICJ), as a tool to take action against countries that support terrorism.
International Legal Instruments supporting Lawfare Strategy:
India should identify specific provisions in international terrorism conventions that sanction terrorism, and highlight customary international laws that Pakistan is violating.
- SAARC Regional Convention on Suppression of Terrorism: India and Pakistan are both parties to SAARC Regional Convention on Suppression of Terrorism (1987) and its Additional Protocol. Article 6 of the Additional Protocol mandates states to take all practical measures via domestic legislation to prevent, suppress and eradicate the financing of terrorism, and for effective international cooperation.
- International Convention for the Suppression of the Financing of Terrorism (ICSFT) is a United Nations treaty (1999) that defines terror financing as a criminal act. Article 2(1) of ICSFT states that any person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used to carry out terrorist acts, commits an offense. Both India and Pakistan are parties to the convention which obligates them to prevent terror financing.
- United Nations Security Council Resolutions: UNSC Resolution 1373 (2001) mandates the member states to undertake measures to deny safe haven to those who finance, plan, support, or commit terrorist attacks.
- Using International Court of Justice (ICJ) as Strategic Forum: India can use ICJ as a legal forum to expose Pakistan’s support for terrorism. Many international terrorism treaties allow state parties to bring disputes to be resolved by the ICJ. For example:
- Article 20(1) of the Terrorist Bombing Convention
- Article 24(1) of the International Convention for the Suppression of the Financing of Terrorism (ICSFT).
Ukraine used this clause to sue Russia at the ICJ for allegedly financing terrorism in the Donbas region. India can also use the compromissory clauses in these terrorism treaties to take Pakistan to the ICJ, just as it did in the Kulbhushan Jadhav case.
However, there are two significant Challenges:
- Pakistan’s Reservation under ICSFT: ICSFT allows disputes to be taken to the ICJ but Pakistan has made a reservation, it has declared that it does not accept the ICJ’s jurisdiction under this treaty. This weakens India’s ability to force Pakistan to face trial under ICSFT. Nevertheless, India can still file a case with the ICJ to draw global attention to the issue.
- India’s Reservation under Terrorist Bombing Convention: India has opted out of ICJ jurisdiction under this treaty, while Pakistan has accepted it which prevents India from taking Pakistan to the ICJ using that treaty. This obstacle can be overcome if India withdraws its reservation, allowing it to initiate proceedings against Pakistan at the ICJ.
India should utilise the legal proceedings in ICJ to assiduously promote a global narrative against Pakistan-sponsored terrorism. India should have fool-proof evidence and devise its legal strategy accordingly.