Lawfare Against Cross-Border Terrorism

Following Operation Sindoor, which showcased India’s readiness to employ kinetic responses to terrorism, a renewed discussion has emerged on non-kinetic strategies — particularly the use of international law (lawfare) to hold Pakistan accountable for cross-border terrorism. The article emphasizes that India has yet to fully leverage this legal route despite possessing substantial evidence and treaty obligations in its favor.

Legal Tools Available Under International Conventions:

• Multiple Treaties Signed: India and Pakistan are parties to several global and regional terrorism conventions — including the SAARC Convention, the International Convention for the Suppression of the Financing of Terrorism (ICSFT), and the Terrorist Bombing Convention.
• State Obligations: These treaties oblige signatory states to prevent, prosecute, and penalize terrorism and its financing. For instance, Article 2(1) of International Convention for the Suppression of the Financing of Terrorism (ICSFT) clearly criminalizes terror financing.
• Pakistan’s Violation: Despite these obligations, Pakistan has a documented history of sponsoring and financing terrorism, including the 2008 Mumbai attacks and the recent Pahalgam terror attack (April 2024).

Using the International Court of Justice (ICJ):

• ICJ Jurisdiction Clauses: Many terrorism treaties include compulsory jurisdiction provisions, allowing disputes to be referred to the ICJ. Examples include Articles 20(1) (Terrorist Bombing Convention) and 24(1) (ICSFT).
• Legal Precedent: Ukraine successfully invoked similar provisions against Russia under the ICSFT, setting a valuable legal precedent for India.
• India’s Legal Opportunity: India can similarly file a case to publicize Pakistan’s violations, even if the jurisdiction is contested, as it did in the Kulbhushan Jadhav case.

Challenges and the Way Forward

• Jurisdictional Reservations: Pakistan has opted out of the ICJ’s jurisdiction under ICSFT, and India has a reservation under the Terrorist Bombing Convention, limiting options.
• Strategic Correction Needed: India should withdraw its reservation to the Bombing Convention to enable legal proceedings, especially since Pakistan has accepted jurisdiction under it.
• Beyond Legal Outcomes: Even if the case is not successful on legal grounds, the strategic value lies in global opinion-building and aligning lawfare with India’s counterterrorism narrative.

Practice Question:

Q. "How can international law and institutions like the International Court of Justice be used as instruments of state strategy to counter cross-border terrorism? Illustrate with suitable examples." (250 words)