“An impactful approach that India has not effectively employed so far is the strategy of ‘lawfare’”
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Operation Sindoor has powerfully demonstrated India’s intent to use kinetic measures to tackle terrorism emanating from Pakistan. In addition to executing “hot pursuits”, India possesses other potent non-kinetic strategies, going beyond regular diplomacy, to ensure that Pakistan is held accountable for its continued support of terrorism directed against India. An impactful approach that India has not effectively employed so far is the strategy of “lawfare”, or leveraging international law to confront adversaries to accomplish strategic and diplomatic objectives.
Leverage terrorism conventions
A key element of a lawfare strategy against Pakistan should be to deploy international law to highlight Pakistan’s sponsorship of cross-border terrorism. This is especially important as India has led the process of adopting a Comprehensive Convention on International Terrorism (CCIT) at the global level. India and Pakistan are parties to numerous terrorism conventions at the regional and international levels. The primary regional treaty is the SAARC Regional Convention on Suppression of Terrorism, while key international treaties include the International Convention for the Suppression of the Financing of Terrorism (ICSFT) and the International Convention for the Suppression of Terrorist Bombings (Terrorist Bombing Convention).
These conventions obligate that states not only criminalise acts of terrorism under their domestic laws and prosecute the perpetrators but also refrain from financing such activities. For instance, Article 2(1) of the ICSFT explicitly classifies terror financing as a crime. Similarly, Article 6 of the Additional Protocol to the SAARC terrorism convention requires states to take measures to prevent, suppress, and eradicate the financing of terrorism.
Pakistan has a long history of sponsoring, abetting, and funding terrorism against India. Following the terror attacks in Mumbai in 2008, India meticulously gathered evidence to demonstrate Pakistan’s active involvement in those attacks, which Islamabad later acknowledged, albeit reluctantly. India needs to consistently publicise proof of Pakistan’s role, which includes the Pahalgam terror attack on April 22.
Further, India should utilise all international forums to build a solid legal case against Pakistan for its violations of international law regarding terrorism suppression. India’s move to have all-party parliamentary delegations travelling abroad to present India’s case on Operation Sindoor is an ideal opportunity to do this. India should identify specific provisions in terrorism conventions, along with various United Nations Security Council Resolutions that sanction terrorism, and customary international law that Pakistan is violating, and highlight these publicly.
Rather than mere diplomatic hyperbole, a clear and compelling narrative entrenched in international law, grounded in indisputable facts and supported by irrefutable evidence will significantly benefit New Delhi’s fight against cross-border terrorism.
Use the ICJ
A critical aspect of many terrorism conventions is that they grant jurisdiction to the International Court of Justice (ICJ) to enforce the treaties. For example, Articles 20(1) and 24(1) of the Terrorist Bombing Convention and the ICSFT, respectively, empower a country to refer disputes to the ICJ. These provisions, known as compromissory clauses, help circumvent jurisdictional obstacles in international law, which is based on consent. Thus, countries that are signatories to these treaties are bound by ICJ jurisdiction unless they make specific reservations. Ukraine, for instance, invoked such a clause when it sued Russia before the ICJ for violating the ICSFT.
Given that Pakistan has been sponsoring and abetting terrorism against India and has not taken any action against terror groups operating from its territory, New Delhi has a compelling case against Islamabad under these terrorism conventions, which it can present to the ICJ — just as it did in the Kulbhushan Jadhav case.
Hurdles to overcome
However, there are two significant hurdles. First, Pakistan has not accepted the ICJ’s jurisdiction under the ICSFT due to a reservation, which could hinder efforts to hold Pakistan accountable. Nevertheless, India can still file a case with the ICJ to draw global attention to the issue. India should put the ball in the ICJ’s court to address Pakistan’s jurisdictional argument.
Second, and perplexingly, India has adopted a reservation about the ICJ’s jurisdiction under the Terrorist Bombing Convention, while Pakistan has accepted the ICJ’s jurisdiction for this convention. This obstacle can be overcome if India withdraws its reservation, allowing it to initiate proceedings against Pakistan at the ICJ for terrorism. The ICJ may likely interpret the provisions of the ICSFT and the Terrorist Bombing Convention narrowly, similar to its approach in the Ukraine vs Russia case decided last year. Therefore, India should have fool-proof evidence and devise its legal strategy accordingly. The dissenting opinion of judges such as Hilary Charlesworth in Ukraine vs Russia can come in handy for India. In any case, India should not be overly concerned about the outcome of the legal dispute. Instead, it should utilise the legal proceedings to assiduously promote a global narrative against Pakistan-sponsored terrorism, aligning it with its national objectives.
In sum, international law and courtrooms can also be used to combat terrorism. To accomplish this, India must build state capacity and mainstream international law in statecraft.
Prabhash Ranjan is Professor and Vice Dean (Research), Jindal Global Law School, O.P. Jindal Global University. The views expressed are personal
Published – May 23, 2025 12:08 am IST