Kamran Adil
Immediately after the terrorist incident at Pahalgam on 22nd April 2025, India proceeded to a series of illegal, unlawful and unethical acts.
First, it chose to indict a ‘country’ for a criminal act, which is against all the established principles of international and national law. Criminal liability, as against civil liability, is always specific; no amount of assumptions can substitute specificity for generalization. India, by doing so, clearly failed in its state responsibility, which required it to investigate imputing blame on anyone. This state responsibility is not artificial but is etched in Article III of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of the International Human Rights Law and Serious Violations of International Humanitarian Law passed on 16th December 2005 by the General Assembly through its Resolution 60/147.
Secondly, adding to this highly irresponsible act on the part of a state that claims to be a ‘constitutional democracy’, India then chose to use more generalization and pronounced the ‘conviction’ and ‘judgement’ in one breath: it unilaterally and arbitrarily adjudged a ‘country’ as a culprit for the incident.
Thirdly, without any specifics, it proceeded to sentence Pakistan (not for the very incident) with putting the Indus Water Treaty, 1960 (IWT) in ‘abeyance’. The use of the term ‘abeyance’ that India used to exit the IWT shows that it is bankrupt insofar as the legal reasoning is concerned. In addition, the role-playing of India as policeman, juror, prosecutor, judge and executioner in this matter establishes that it is not interested in lawful and peaceful co-existence with its neighbours. It evades truth and justice. Interestingly, all the legal and diplomatic salvos were fired simultaneously by India: it also revoked all the visas, declared Pakistan’s diplomats (military) persona non grata and closed the Attari border.
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Fueling its information machine with false narratives that were based on misinformation and disinformation, it tried to do politics on a criminal justice issue by escalating it into an international peace and security issue. All these acts of India were not consistent with the extant waning international legal order that vests the Security Council of the United Nations with powers to deal with such eventuality. Nonetheless, on an ethical and international law plane, reneging one’s legal obligation was squarely immoral and violated customary international law’s principle of pacta sunt servanda that, in its ultimate analysis, will be the overarching principle of the international law and will have overriding effect on all the niceties of the legalese woven into the dispute resolution mechanism of the IWT.
On its part, Pakistan’s response was much measured and principled. Its position was situated in the United Nation’s Charter when it spelt that the act of India putting IWT in ‘abeyance’ shall be construed as an ‘act of war’. The language employed by one nuclear power to communicate with another nuclear power cannot be more diplomatic but firm than this. The language of declaring the actions of India as an act of war emanated out of Article 51 of the UN Charter which guarantees a country’s right to self-defence in the face of aggression. The message was clear: lawfare is the only workable framework; anything out of this framework will be consequential for both countries. Since the incident, experts working in the area of lawfare have been offering all sorts of workable legal solutions from reviving the IWT dispute resolution mechanism to taking the matter to the Security Council of the United Nations. However, the hostile environment stoked by hatred and the hawkish approach by India is fast eroding the trust and patience required to deal with such situations. India has been carrying out terrorist attacks in Canada, the UK and the US on Sikhs for some time and is accusing others of what was its evident and proven strategy. Earlier, India did get a pushback on this from the pre-Trump 2.0 West which is now more divided than ever. Pakistan has little or nothing to lose in departing from the lawfare framework as it has been dealing with existential threats for a long time and has the resilience to deal with any eventuality. For India, however, things will not be rosy owing to the latest economic stand-off between the US and China that nudged China to take a clear position on many issues including choosing one of its neighbours over the other.
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Along with other legal options in the lawfare framework, one legal option that is recognized in the national legal framework of India and Pakistan is to use their extra-territorial jurisdictions (conferred under the Code of Criminal Procedure) as universal jurisdiction against terrorism. This first step will downgrade the matter to the genus of criminal justice issues as against its present formulation of India that styles it as an issue of international peace and security. Secondly, the joint investigation mechanism be evolved by utilizing the principles of international cooperation and mutual legal assistance as contained in the United Nations Convention on the Transnational Organized Crime, 2002 (which is not designed for terrorism but has useful guidance on international cooperation in criminal justice matters).
In all of this, time is of the essence: for the collection of evidence as well as for de-escalating the conflict; delay may prove fatal for all.
The writer is a DIG in the police service of Pakistan PSP.
