New York

Without naming Pakistan, India raised the issue of nation states sponsoring proxy war by supporting non-state actors such as terrorist groups to evade international censure.

This was stated by Nagaraj Naidu, Ambassador and Deputy Permanent Representative of India's Mission to UN, on Wednesday while speaking at the Arria Formula meeting on the issue of "Upholding the collective security system of the UN Charter: the use of force in international law, non-state actors and legitimate self-defense."

He said, "Article 2(4) of the UN Charter requires that states refrain from the use of force. However, the drafting history of Article 51 of the UN Charter and the relevant San Francisco Conference Report of June 1945 that considered Article 2(4) of the UN Charter mentions that ‘the use of arms in legitimate self-defence remains admitted and unimpaired.’"

"Article 51 also explicitly acknowledges the pre-existing customary right of self-defence, as recognized by the International Court of Justice and the UN Security Council by stating that ‘nothing in the present Charter shall impair the inherent right of individual or collective self-defence,’" Naidu added.

He further said that customary international law has long recognised the principles governing the use of force in self-defense.

"Furthermore, Article 51 is not confined to ‘self-defense’ in response to attacks by states only. The right of self-defense applies also to attacks by non-state actors. In fact, the source of the attack, whether a state or a non-state actor is irrelevant to the existence of the right of self-defense," Naidu said.

Talking about the terrorist groups, Naidu said, "Non-state actors such as terrorist groups often attack states from remote locations within other host states, using the sovereignty of that host state as a smokescreen."

He stated further that in this regard, a growing number of States believe that the use of force in self-defense against a non-state actor operating in the territory of another host State can be undertaken if: the non-state actor has repeatedly undertaken armed attacks against the State.

Secondly, the host State is unwilling to address the threat posed by the non-state actor, and third is the host State is actively supporting and sponsoring the attack by the non-state actor.

In other words, a State would be compelled to undertake a pre-emptive strike when it is confronted by an imminent armed attack from a non-state actor operating in a third state. This state of affairs exonerates the affected state from the duty to respect, vis-a-vis the aggressor, the general obligation to refrain from the use of force. In fact, Security Council resolutions 1368(2001) and 1373(2001) have formally endorsed the view that self-defense is available to avert terrorist attacks such as in the case of the 9/11 attacks, he said.

He added, "the 1974 UNGA 'Declaration on Principles of International Law, Friendly relations and Cooperation among States in Accordance with the Charter of the United Nations' requires positive action on the part of a member state so as not to acquiesce or tolerate terrorist activities originating from within its territory, nor allow the territory under its control to be used for terrorism against another state.

The Security Council also mandates all States to refrain from providing any form of support, active or passive, to entities or persons involved in terrorist acts.

"Despite this, some states are resorting to proxy war by supporting non-state actors such as terrorist groups to evade international censure. Such support to non-state actors has ranged from providing and equipping the terrorist groups with training, financing, intelligence and weapons to logistics and recruitment facilitation," he said.

Indian Ambassador Nagaraj Naidu speaking at UNSC

Ambassador Naidu further said India for decades has been subject to such proxy cross-border and relentless state-supported terrorist attacks from our neighborhood. Whether it is was the 1993 Mumbai bombings, or the random and indiscriminate firings of 26/11 which witnessed the launch of the phenomenon of lone-wolves or more recently, the cowardly attacks in Pathankot and Pulwama, the world has been witness to the fact that India has repeatedly been targeted by such non-state actors with the active complicity of another host State.

"While we believe that instances, where states have exercised the right of self-defense to attack non-state actors located in other states, must be consistent with Article 2(4) of the UN Charter, preemptive actions taken to fight the menace of terrorism, even without the consent of the state hosting the non-state actors, meets this criterion because such actions are not of reprisal since their prime motive is for protecting the affected states' national integrity and sovereignty," he said.