Between 17 and 18 January 2024, neighbouring countries Iran and Pakistan launched airstrikes in each other’s territory against non-State actors operating on that State’s territory, which each claimed to be preventive in nature, acting to protect their own national security interests. This article examines the validity of these airstrikes under international law.
Events and Statements
On 17 January 2024, Iran launched airstrikes on Pakistani territory on the bases of Jaish al-Adl, a Sunni militant group of Iranian origin. The group previously killed 11 security personnel in the Iranian town of Rask in the Siestan-o-Baluchistan province in December 2023. In a speech at the World Economic Forum 2024, the Iranian Foreign Minister, Hossein Amirabdollahian, stated that Iran “respects the sovereignty and territorial integrity of Pakistan,” which it reinforced in a telephone conversation to Pakistan’s Foreign Minister, Jalil Abbas Jilani. However, Amirabdollahian emphasised that Iran will not hesitate to act to protect its national security interests.
Pakistan’s Ministry of Foreign Affairs vehemently condemned these airstrikes as a ‘violation of its airspace’, claiming them to be ‘completely unacceptable’ and ‘illegal’. It highlighted that while ‘terrorism is a common threat to all countries in the region’, unilateral acts in place of coordinated action undermines ‘bilateral trust and confidence’.
In response, on 18 January 2024, Pakistan launched Operation Marg Bar Sarmachar, a campaign of precision military strikes against terrorist bases in the Siestan-o-Baluchistan province of Iran, killing a number of Sarmachar terrorists who operated in ‘safe havens and sanctuaries in the ‘ungoverned spaces inside Iran’. The statement issued by the Ministry of Foreign Affairs echoes much of the same language used by Iran, i.e., that Pakistan respects the territorial integrity and sovereignty of Iran and that the airstrikes sought to maintain Pakistan’s national security interests, which are ‘paramount and cannot be compromised’. The statement additionally claimed that this was an exercise of Pakistan’s ‘legitimate rights within international law’ provided under the UN Charter.
Iran’s Ministry of Foreign Affairs issued a statement in response to Pakistan’s airstrikes. Much like Pakistan’s response to Iran’s airstrikes, Iran’s statement condemned ‘Pakistan’s unbalanced and unacceptable drone attack on non-Iranian villagers’. It also clarified that Iran’s airstrikes on 16 January were a ‘preventive’ measure to prevent a terrorist attack similar to one committed by the same group in the Iranian town of Rask in December 2023. Importantly, the statement urged the Pakistani Government to do its part ‘to adhere to its obligations in preventing the establishment of bases and the deployment of armed terrorist groups on its soil.’ Ultimately, the statement sought to de-escalate the situation by reinforcing the principles of ‘good neighborliness and brotherhood’ and focusing on more pressing issues facing the Islamic world, namely Israel’s war on Gaza.
Implications under International Law
A state’s right to self-defence is a well-established international law right, both in treaty and in custom. Article 51 of the UN Charter provides an exception to the prohibition on the use of force in Article 2(4) and states that:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Thus, Article 51 allows a Member State of the UN to use force in self-defence if an armed attack occurs against the territorial integrity or political independence of a State.
There are several requirements for the lawful invocation of the right to self-defence. An armed attack must have taken place against the state and the victim state must respond in a way which complies with the requirements of necessity and proportionality. A Member State must also immediately report any exercise of the right of self-defence to the Security Council. A contested area of international law is whether an armed attack from a non-State actor must be attributed to a State for the victim state to use force in the host State’s territory.
In the Nicaragua case, the Court held that self-defence in another state’s territory can only be exercised when the armed groups are sent ‘by or on behalf of a State… which carry out acts of armed force against another State of such gravity as to amount to an actual armed attack’ [para 195]. While various other actors and academics have supported a more expansive right to self-defence in light of the growing threat of global terrorism by non-State armed groups, such a position is not reflected in established international law.
Self-Defence and the Unwilling or Unable Doctrine
Since the 11 September 2001 attacks on the World Trade Centre, (or ‘9/11’) the movement for an expansive interpretation of self-defence to include anticipatory self-defence has gained traction (p. 68). Under anticipatory self-defence, States would have the right to use force in self-defence before an armed attack against them takes place. This also includes self-defence against non-State actors who are not attributable to a certain State. This is particularly relevant in the ‘unwilling or unable’ doctrine.
The ‘unwilling or unable’ doctrine is defined by Ashley Deeks as follows: “[I]t is lawful for State X, which has suffered an armed attack by an insurgent or terrorist group, to use force in State Y against that group if State Y is unwilling or unable to suppress the threat” (p. 486).
While Deeks argues that State practice reinforces the doctrine’s lawfulness, this position does not reflect ‘widespread state practice and opinio juris’ of the doctrine as a valid exercise of the right to self-defence under Article 51 (p. 268).
Analysis of Iran and Pakistan’s Actions
Both Iran and Pakistan have used language in their diplomatic statements which reflects the language of the ‘unwilling or unable’ doctrine. Both countries allege each other’s inability to quell terrorist threats from groups operating in their own territory. According to Iran, Jaish al-Adl was operating in Pakistani territory and posed a threat to Iran’s national security interests. Iran also alleged that Pakistan had failed to discharge its duty, and was thus ‘unable’, to control the threat of cross-border terrorism on its own. Similarly, Pakistan alleged that the Sarmachars were operating in ‘ungoverned’ areas of Iranian territory along with Iran’s ‘lack of action’ to curb those threats to Pakistan’s national security.
Both parties clarified that they did not target the other State, but rather non-State armed groups. Neither group seemed to be attributable to either State: the statements issued by Iran clarified that the Jaish al-Adl group was of Iranian origin, while the Pakistani statement clarified that Sarmachars were of Pakistani origin, but neither statement established any attribution to either State. Failing the test of attribution established in Nicaragua, neither State had the right to self-defence under international law in this situation against the non-State actors.
Furthermore, neither Iran nor Pakistan established that an armed attack by the terrorist group they each targeted had occurred in their respective States. Both strikes were preemptive in nature, with each State claiming that there was a threat of an attack by the targeted terrorist group. This goes against the established definition of the doctrine, which requires an attack to have taken place. While Iran claimed that an attack by the Jaish al-Adl on Iranian territory was imminent, Pakistan claimed that it conducted its airstrikes ‘in light of credible intelligence of impending large scale terrorist activities.’
While the legality of both States is questionable, Pakistan was the only one to claim it had a right to carry out its strikes under international law, while Iran made no such claims. As established, however, Pakistan’s claims are based on the ‘unwilling or unable’ doctrine, which is not reflective of established international law. Neither State immediately reported its exercise of self-defence to the UN Security Council, casting further doubt on their own stance on the legality of their interventions under Article 51.
Pakistan’s Response
Nevertheless, one can argue that Pakistan’s airstrikes were a valid exercise of self-defence. Pakistan suffered an armed attack against its sovereignty and territorial integrity, which it correctly established to be its rights under Article 1 of the UN Charter. In order to protect its territory from future armed attacks, Pakistan carried out its airstrike on Iranian territory in a proportionate manner to repel further attacks. As David Kretzmer highlights, ‘The legitimate ends of using force in self-defence might be halting and repelling the ongoing attack and reducing the threat of further attacks by prevention and deterrence’ (p. 270). Thus, Pakistan found it necessary to launch an airstrike in Iranian territory to reduce the threat of further attacks by Iran.
Similarly, one must look at the proportionality of the response by Pakistan. Many scholars argue for a ‘means-end’ approach to proportionality which is closely linked to the necessity of the means used to achieve legitimate ends (Kretzmer, p. 237). However, others argue for a ‘tit-for-tat’ approach, i.e., that the use of force in defence must be similar to that used in the initial armed attack (Kretzmer, p. 237). Under both approaches, Pakistan’s strikes were proportionate. Under the ‘means-end’ approach, Pakistan’s airstrikes involved ‘highly coordinated and specifically targeted precision military strikes’ to target Sarmachar bases in Siestan-o-Balochistan. This was to signal to Iran to avoid carrying out such strikes on Pakistani territory in the future. Under the ‘tit-for-tat’ approach, Pakistan’s operation was exactly the same as Iran’s: precision military strikes carried out on credible evidence on terrorist bases in the other State’s territory that posed a threat to its national security. This also ensured that Pakistan did not further escalate the situation by targeting Iranian military bases, which it would have the right to do so under Article 51, while also indicating its defensive capabilities. Thus, Pakistan’s actions were both necessary and proportionate in this case, particularly as a means to prevent further attacks.
Alternatively, Pakistan could have resorted to countermeasures in response to Iran’s attack. According to the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts, 2001, countermeasures are measures taken by one State against another State that is ‘responsible for an internationally wrongful act in order to induce that State to comply with its obligations’ under international law (Article 49). Countermeasures do not affect States’ obligations under Article 2(4) of the UN Charter; thus, States cannot use force as countermeasures (Article 50). However, other measures that would qualify as countermeasures include suspending diplomatic relations with Iran, the freezing of any Iranian assets in Pakistan’s control, and suspending trade relations with Iran – which both sides have tried to improve in recent times.
Although one can make the claim that Pakistan’s actions were both necessary and proportionate, one must remember that these are factors for the valid exercise of force in self-defence, but not the only determinants. Neither State attributed the impending attacks from the terrorist groups to the other State; they only argued that the other State failed to prevent such groups from operating in their territory.
Significance
Despite this, the language of the ‘unwilling or unable’ doctrine employed by both Iran and Pakistan is concerning. It lends legitimacy to a problematic basis for the unilateral use of force under international law. The doctrine has been criticised for being particularly prone to abuse. As Ntina Tzouvala writes, ‘in virtually all cases the state deemed “unwilling or unable” is a state of the Global South” and allows the Global North to perpetuate global power discrepancies that favour their interests (p. 267). For example, the US invoked it against Al-Qaeda in Afghanistan after the 9/11 attacks, claiming that the Taliban government was harbouring the group (Byers, p. 628). The same doctrine was invoked in a letter to the Security Council by the US-UK coalition against ISIL in Syria in 2014. Similarly, Israel invoked the doctrine to justify its war against Lebanon following the Hezbollah attacks in 2006 (Tams and Bruckner). In these cases, the responses to the initial armed attacks or perceived threats were significantly disproportionate to the attack or threat, particularly Israel’s response, and were thus not valid exercises of the right of self-defence under international law.
Pakistan has been the victim of this doctrine as well. The US drone strikes in Pakistan’s North Waziristan region in the 2010s were justified on the Pakistani government’s inability to quell militant threats operating from the region (p. 2). It also condemned the Indian airstrikes in Balakot in 2019 that were justified on Pakistan’s inability to dismantle the Jaish-e-Muhammad terrorist group.
Apart from this escalation with Iran, Pakistan also used this language in attacks against Afghanistan in 2022 when it launched airstrikes on the bases of the Tehreek-e-Taliban Pakistan (TTP) insurgent group. On the one hand, it criticises States for violating the sovereignty and territorial integrity of other States, while on the other, it uses the same language to justify actions that it condemned when they occurred on its own territory. This follows a series of similar invocations by countries in the Global South. Recently, some States in the Global South are invoking the ‘unwilling or unable doctrine’. Kenya invoked it in 2011 when targeting the Al-Shabaab terrorist group in Somalia. Similarly, Turkey invoked it against the Kurdistan Workers’ Party (PKK) in 2015 when tensions flared up in the region.
Iran and Pakistan – and the Global South in general – should refrain from using such language in connection with international law in the future. Although Pakistan’s actions were legitimate, its condemnation of Iran’s actions loses credibility when it itself engaged in a similar attack the next day on similar grounds, while basing its actions on a similar, incorrect interpretation of international law.
Conclusion
In conclusion, the legality of Pakistan’s response to Iran’s airstrikes depends on a number of considerations. Under the established law of self-defence in both international treaty and customary law, neither Iran nor Pakistan could claim self-defence against a non-State armed group on the basis of the inability of the other State to quell such threats on their territory. A claim could be made that, despite Pakistan’s framing of its response, it acted within the limits of international law to respond to Iran’s violation of its sovereignty. Ultimately, both parties should refrain from engaging the language of the ‘unwilling or unable’ doctrine in the future, resorting to bilateral cooperation and/or countermeasures in such events, as the doctrine is a problematic development under the international law of self-defence.
