INTRODUCTION
Particularly in South Asia, cross-border terrorism has become a serious danger to global peace and security. India has experienced frequent, well-planned terrorist strikes from beyond its borders, most frequently from non-state actors based in Pakistan. India’s national security and regional stability have been severely impacted by these incidents, which include the January 2016 attack on the Pathankot Air Force Station, the September 2016 attack on Uri, and the February 2019 Pulwama bombing[1]. In addition to causing a large number of fatalities, each episode has rekindled discussions over India’s right to defend itself by taking cross-border military action. The growing nexus between terrorism and transnational networks has blurred the traditional lines of state responsibility, challenging the conventional understanding of sovereignty and the permissible scope of self-defense under international law. The international legal framework, particularly Article 51 of the United Nations Charter[2], affirms the inherent right of states to self-defense. However, its application to threats posed by non-state actors operating from foreign territory remains a contested issue in both legal scholarship and state practice.
The article examines the legitimacy and legality of India’s responses to cross-border terrorist threats through the lens of international law. It will explore the evolving doctrine of self-defense, evaluate India’s state practice in this domain, and assess whether such actions align with or challenge the established legal order.
KEYWORDS: Cross-Border, Terrorism, Self-Defense, International Law, India, Article 51 of UN Charter, State Sovereignty, Non-State Actors
CONCEPTUAL AND LEGAL FRAMEWORK
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- Definition and Nature of Cross – Border Terrorism
Acts of terrorism carried out by non-state actors that originate or receive support from outside a country’s borders are referred to as cross-border terrorism. In the case of India, this usually entails terrorist organizations operating out of neighboring nations, especially Pakistan, invading Indian territory in order to conduct attacks[3]. The distinction between state and non-state responsibility is blurred by the fact that such acts frequently have varied degrees of active or implicit governmental support. While terrorism itself lacks a universally accepted definition in international law, efforts such as the UN General Assembly Resolution 49/60 define[4] terrorism broadly.
These criteria, however, frequently fall short when discussing the subtleties of cross-border terrorism, where layers of complexity are added by official complicity or the harboring of terrorist infrastructure.
Legal basis of the right to self-defense
The foundational legal basis for the right to self-defense lies in Article 51 of the United Nations Charter[5], This clause affirms a long-standing customary norm, namely that states have the right to defend themselves against “armed attack.” The conventional reading of Article 51, however, excluded non-state actors unless their activities could be linked to a state and assumed a state-to-state conflict. This interpretation was supported by the International Court of Justice’s 1986 Nicaragua judgment[6], which held that non-state actors’ use of force does not automatically qualify as self-defense unless the host state is significantly involved.
In recent years, countries like the United States, Israel, and Turkey have invoked the “unwilling or unable” doctrine to justify actions against non-state actors on foreign soil, thereby pushing the boundaries of traditional self-defense law. While this approach lacks universal endorsement, it has become increasingly influential in shaping customary international law.
INDIA’S EXPERIENCE WITH CROSS-BORDER TERRORISM
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- Historical Overview
India has been dealing with cross-border terrorism for decades, primarily along its western border. A continuing trend of coordinated attacks on Indian targets by non-state actors, often based in Pakistan, began with the escalation of the Kashmir insurgency in the late 1980s. Pakistan’s Inter-Services Intelligence (ISI) has been frequently accused of providing safe havens, training, and logistical support to these groups, including Lashkar-e-Taiba (LeT), Jaish-e-Mohammed (JeM), and Hizbul Mujahideen[7].
Despite being fought between regular military, the Kargil conflict of 1999 began with cross-border infiltration[8]. A pattern of terrorism carried out from across the border is reflected in later attacks, such as the 2001 Indian Parliament attack, the 2008 Mumbai attacks, and the more recent Pathankot (2016), Uri (2016), and Pulwama (2019) incidents, which seriously jeopardize India’s internal security and reputation abroad.
- India’s Responses
India’s responses to cross-border terrorism have evolved from diplomatic protests and limited military action to more assertive postures involving targeted cross-border operations. Following the 2016 Uri attack, India conducted what it described as “surgical strikes” across the Line of Control, targeting terrorist launch pads in Pakistan-occupied Kashmir[9]. This was a significant shift, as India publicly acknowledged a cross-border military operation in self-defense for the first time since the 1971 war.
The 2019 Pulwama bombing prompted an even more forceful reaction. Deep within Pakistani territory, on February 26, 2019, the Indian Air Force attacked a JeM training camp at Balakot[10]. In order to prevent more terrorist strikes, India defended this move as a “non-military, pre-emptive strike[11].”
This event rekindled the discussion of whether it is acceptable to employ force across international borders against non-state entities without giving credit to the host nation.
The “unwilling or unable” argument has become more and more central to India’s strategy, which contends that India has the right to act in self-defense outside of its boundaries because Pakistan is unwilling to destroy terrorist infrastructure. Even though this defense is not always recognized by international law, India’s explanation of self-defense is consistent with changing state policies in the wake of 9/11.
LEGALITY OF INDIA’S ACTIONS UNDER INTERNATIONAL LAW
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- Criteria Of Self-Defense
The legality of a state’s use of force in self-defense is governed primarily by Article 51 of the United Nations Charter[12], which provides that states retain the “inherent right of individual or collective self-defense if an armed attack occurs.” This principle is further regulated by customary international law and judicial pronouncements such as the ICJ’s decision in Nicaragua v United States[13], which established that the right of self-defense arises only in response to an “armed attack” of sufficient gravity. Three core criteria underpin the legality of self-defense under international law: necessity, proportionality, and immediacy. These principles were articulated in the Caroline correspondence (1837), which remains a benchmark in customary law.
In India’s case, both the 2016 surgical strikes and the 2019 Balakot airstrikes were presented as proportionate responses to specific terrorist provocations. India emphasized that its actions were targeted, non-escalatory, and strictly aimed at preventing future attacks.
- Analysis of India’s Claim and International Response
India has consistently maintained that its cross-border actions were acts of legitimate self-defense, citing both the gravity of terrorist attacks and the inability or unwillingness of the host state to prevent such threats. In the aftermath of the Balakot strikes, India’s statement explicitly cited Article 51 of the UN Charter. However, international responses to India’s self-defense claims have been mixed. While many states acknowledged India’s security concerns, few explicitly endorsed the legality of the strikes under international law. Notably, the UN Secretary-General called for restraint and urged compliance with the Charter, without taking a definitive position on legality[14].
THE WAY FORWARD
To address the legal, diplomatic, and security challenges posed by cross-border terrorism, particularly in the Indian context, the following multidimensional strategy is proposed:
Multilateral and Bilateral Counter-Terror Frameworks
India should build strategic alliances and strengthen counter-terror cooperation through:
- Multilateral platforms (e.g., UN, BRICS, SCO) to isolate state sponsors of terrorism;
- Bilateral mechanisms (e.g., intelligence sharing, joint task forces) with key partners like the US, Israel, and France;
- Active participation in Financial Action Task Force (FATF) processes to increase pressure on states harboring terrorist networks.
Domestic Readiness and Rule of Law
India must complement its international strategy with robust domestic legal mechanisms. This includes:
- Modernising counter-terrorism laws in line with international human rights standards;
- Enhancing cyber surveillance and counter-radicalisation efforts;
- Establishing specialised judicial forums to expedite terrorism-related prosecutions;
- Ensuring transparency and accountability to safeguard against misuse and to retain democratic legitimacy.
Conflict De-escalation and Regional Diplomacy
While self-defense is a legitimate right, its exercise should always be calibrated to avoid escalation. India should pursue backchannel diplomacy and confidence-building measures with Pakistan and other neighbours to prevent inadvertent conflict escalation. A long-term solution lies not only in deterrence but in the resolution of underlying disputes, particularly the Kashmir issue, in accordance with international law and bilateral agreements.
CONCLUSION
The legal complications of India’s right to self-defense in relation to cross-border terrorism have been explored in this article. It is clear that while states’ inherent right to defend themselves against armed aggression is upheld by international law, especially Article 51 of the UN Charter, conventional interpretations have mainly limited this right to interactions between states. However, a more expansive, albeit contentious, conception of self-defense against non-state actors acting from foreign territory has resulted from the post-9/11 security climate and changing state practice.
India has made a conscious effort to establish this changing understanding of self-defense, particularly under the “unwilling or unable” theory, as evidenced by its actions, including the 2016 surgical strikes and the 2019 Balakot airstrikes. In an effort to thwart potential threats and establish strategic deterrence, these actions were justified as necessary and proportionate reactions to serious terrorist provocations.
Although some states and pundits have implicitly supported India’s legal arguments, they also pose serious problems for the UN Charter’s tenets of state sovereignty and the concept of collective security. The legitimacy of unilateral or anticipatory self-defense against non-state actors without Security Council approval is still up for debate.
[1] Ministry of External Affairs, India’s Statement on Pathankot Attack (Government of India, 2 January 2016); Ministry of Defence, Press Statement on Surgical Strikes (29 September 2016); Ministry of External Affairs, Statement on Pulwama Terror Attack (14 February 2019).
[2] United Nations, Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 51
[3] S Dutt, India’s External Affairs and Security (Viva Books 2019) 143–145.
[4] “Criminal acts intended or calculated to provoke a state of terror in the general public… for political purposes.” UNGA Res 49/60 (9 December 1994) UN Doc A/RES/49/60, para 3.
[5] Charter of the United Nations (n 2) art 51. “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations…”
[6] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, paras 195–200.
[7] Sumit Ganguly, India, Pakistan, and the Bomb: Debating Nuclear Stability in South Asia (Columbia University Press 2010) 97–102.
[8] C Christine Fair, Fighting to the End: The Pakistan Army’s Way of War (Oxford University Press 2014) 145–148.
[9] Ministry of External Affairs, Statement by DGMO on Surgical Strikes (29 September 2016) https://mea.gov.in/ accessed 20 May 2025.
[10] Ministry of External Affairs, Statement on the Air Strikes in Balakot (26 February 2019) https://mea.gov.in/ accessed 20 May 2025.
[11] Ashley J Tellis, ‘The Balakot Strike and the Indian Use of Force’ (Carnegie Endowment for International Peace, March 2019) https://carnegieendowment.org accessed 20 May 2025
[12] United Nations Charter (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 51.
[13] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14, paras 191–195.
[14] United Nations, ‘Secretary-General Urges India, Pakistan to Exercise Maximum Restraint’ (27 February 2019) https://news.un.org accessed 21 May 2025.
