Opinion - News Analysis

War talk and law talk

By Balakrishnan Rajagopal

Ours has become the age of threats. India threatens Pakistan with a "limited war'' and a complete nuclear annihilation if it uses nuclear weapons first. Pakistan openly threatens India with a "first strike'' nuclear option if it as much as moves its forces one inch across the Line of Control. The Hindu fundamentalists threaten the Muslim citizens of India with annihilation if they do not behave. Israel routinely threatens military force against Palestinians and Palestinians threaten retaliation through suicide bombings. The United States President, George Bush, the originator of all threats, threatens the entire world — "if you are not with us, you are against us'' — and specific countries and groups through his "axis of evil'' framework. And terrorists threaten innocents and their governments around the world. Threats have then become a routine way of conducting international affairs.

No longer do countries or groups express disagreements in the language of law or even civilised politics. In a way, international relations today resembles classic European state behaviour 200 years ago when large powers bullied and threatened each other and peace was the accidental by-product of alliances and balance of power. The cosmopolitan internationalism of the late Victorian and post-World War I period, embodied in a commitment to norms of non-aggression and peaceful settlement of disputes and institutions of dispute-resolution and peace making such as the International Court of Justice and the United Nations Security Council, appears to be seriously challenged. The threatening postures of major powers do not elicit any condemnation from other powers as violations of the U.N. Charter, which explicitly prevents threats as well as the use of force in international affairs. Rather, aggression has been thoroughly accepted as the normal way of conducting international relations.

It is not just war that is being routinised. Mass killings of human beings and brutalities are casually mentioned by would-be combatants and major powers as if that is normal and legal. The New York Times reported a Pentagon "estimate'' that between 7 to 12 million people would die in case a nuclear war between India and Pakistan. On each side, many Indians and Pakistanis are reported to be calling for "finishing off'' the Kashmir problem once and for all. The state-sponsored pogrom in Gujarat that saw the death of almost 2000 Muslims and the rape of countless women is being dismissed by Indian leaders. The Defence Minister, George Fernandes, calls rape and brutalisation of pregnant women as "nothing new'' on the floor of Parliament while the head of the Vishwa Hindu Parishad talks with pride about what happened in Gujarat.

Pakistan has casually mentioned several times that it is prepared to use nuclear weapons offensively against Indian cities while justifying the mass killings committed by `jehadi' fighters as "freedom struggle.'' On the other hand, Indian strategists calmly discuss how India can "absorb'' a nuclear strike by Pakistan and equally calmly discuss the destruction of the entire population of Pakistan in retaliation. The tragedy in all this casual mass murder talk is how it goes against the letter and spirit of existing international law.

Pakistan's U.N. Ambassador is quoted in the New York Times as saying that the U.N. Charter does not prohibit the use of nuclear weapons. While this is textually correct, international law is not just the U.N. Charter but includes the judgments of the ICJ as well as other relevant treaties and customary international law. In its advisory opinion on the legality of the threat or use of nuclear weapons in 1996, the ICJ clearly laid down that unless the very survival of the state is threatened, the use of nuclear weapons is unlawful even in defence.

Pakistan's stated "first strike'' policy would, therefore, entirely violate international law.

India's assertion that it is entitled to use nukes in retaliation — and use it massively — contradicts both its own stated position before the ICJ in 1996 as well as the judgment itself. In its written pleadings before the ICJ, India asserted that "even where a wrongful act involved the use of a nuclear weapon, the reprisal action cannot involve the use of a nuclear weapon without violating certain fundamental principles of humanitarian law...

In view of the above, use of nuclear weapons even by way of reprisal or retaliation appears to be unlawful.''

Given this position, how can India justify using nukes even in retaliation? In the contest between "war talk'' and "law talk,'' the former appears to be winning. If we are not to lose the entire edifice of peace making that has been painstakingly built over more than 100 years, we must begin opposing "war talk.'' This may be our best chance of reviving "law talk'' in international relations and more importantly, preventing the normalisation of war and total destruction. The people of the subcontinent depend on it.

(The writer is Professor of Law and Development, and Director, MIT Program on Human Rights & Justice, U.S.)

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