Understanding War and Peace as India-Pakistan Ties Hit Nadir
As India-Pakistan ties hit a low, Abhishek Mishra writes on what constitutes war and peace from a legal perspective
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Recent developments between India and Pakistan has led to an argument about war or warlike situation. The intellectual bifurcation among those who are debating on TV channels’ prime time show is between peaceniks and warmongers.
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Making a Distinction Between War and Peace
First things first, war, according to international law must be among States, this is a sine qua non. Peace is hard to define, however, an obvious definition of peace would be the absence of war.
Thus, one needs to identify when is it that war is existing and thus, absence of such elements which makes existence of war a reality, in space and time, can be termed as peace time.
The distinction is an absolute necessity as international law would be applicable accordingly, for example, a killing by State apparatus during peacetime, even of enemy, would be a crime against humanity.
However, the same crimes committed during war would be termed as war crimes. So, murder of an enemy during peace time would be attracting the charge of crime against humanity or genocide, and during wartime that murder would be called a war crime.
Union-State Relationship Changes in Course of a War
War can be admitted to be in existence by gazing into the legal framework of that country. For example, in India, the existence of war or its threat, both can grant the power to President to proclaim emergency (Art. 352, Constitution of India).
The proclamation of emergency does not require actual belligerency to have broken out between the parties. The consequence of such proclamation would be alternation in the legal and administrative Union-State relationship of India (Art. 353, Indian Constitution), therefore disturbing the federal structure of peacetime. Revocation of such proclamation would be taken as the restoration of peace.
Similarly, an absence of such proclamation would or should be considered as peacetime. We have seen such proclamation during the 1965 war as well as 1971 war, however, interestingly, no such proclamation was made during the Kargil War, raising a legal question as to it being termed as ‘war’ from municipal law point of view.
There are various legal consequences in international law, if the State is not aggressor, such as informing the Security Council of its action under Art. 51 UN Charter that it is acting in its self-defence and thus, it is not violating the principle of non-intervention of Art. 2(4), UN charter. Countries like Israel has never come out of its legal proclamation of Emergency ever since.
Pakistan Playing it Well Through Non-State Actors
India has been perpetually at war with Pakistan ever since its inception as a State. There is no doubt that this is the case even today. If one scrutinises Pakistan’s diatribe against India during its presentation at the Security Council during the Kashmir conflict in 1948, and thereafter, one is left with no other conclusion but to say, we are at war. War, till 1971 was formally practiced by Pakistan, however, a decisive blow in 1971 made it come up with ‘Let India die by a thousand cuts’ theory.
The thousand cuts theory is more sinister and lethal than direct war, as it unleashes state actors in the garb of non-state actors. The study of the armed conflict worldwide has shown (Eric Hobsbawm — Globalisation, Democracy and Terrorism) that present day war would be fought through non-state actors, and Pakistan is deploying them successfully.
Pakistan Army Not Sure What it Wants
A full-fledged war requires economy to sustain it, and would attract international attention, whereas war through proxies would be equally lethal but requires less strain on economy and goes unnoticed by the international community.
In Pakistan, it has been turned into the Chinese model of people’s war, where funding comes through people directly, and radicalisation of Pakistani society is in line with such tactics. India has suffered more in the last thirty years in terms of lives of civilians and soldiers than during war. The economic drain too has been catastrophic.
The Pakistan-China nexus has made the situation nuclear. Pakistan’s declared nuclear policy is that it is meant only for India, and for no other country. Afghanistan is another foe of Pakistan but we seldom hear the nuke, tactical or conventional, threat unleashed thereon. India’s options are little, for consequences of war would be short-lived, as your enemy has the mental penchant for destroying you, as it wants to regain its historical place in the the Indian subcontinent. Pakistan’s army is not clear of its objective — whether it wants to protect Pakistan or regain the glory of Islam and help establish its Caliphate in the Indian Peninsula.
(The writer is an author of the book Indian Capital Market: Legal Regime and currently a PhD fellow at Albrecht Mendelssohn Bartholdy Graduate School of Law, University of Hamburg. This is a personal blog and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same. )
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