Immediately after the terrorist incident in Pahalgam on 22 April 2025, India took a series of actions against Pakistan that were blatantly illegal, unlawful and unethical.
First, it chose to indict a ‘country’ for a criminal act, which contravenes established principles of both international and national law. Criminal liability, as opposed to civil liability, is always specific: no amount of assumptions can substitute specificity with generalisation. In doing so, India clearly failed its State responsibility to conduct an investigation before imputing blame to anyone. This State responsibility is not artificial; it is firmly established in Article III of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the UN General Assembly on 16 December 2005 through Resolution 60/147.
In addition to this highly irresponsible act on part of a State that claims to be a ‘constitutional democracy’, India then bypassed due process by collapsing ‘conviction’ and ‘judgment’ into a single, sweeping declaration, thus unilaterally and arbitrarily designating a specific country as the culprit behind the incident.
Further, without offering any specific evidence, it proceeded to sentence Pakistan (not for the very incident), with putting the Indus Water Treaty 1960 (IWT) in ‘abeyance’. The use of the term ‘abeyance’ by India for exiting the IWT shows that it is bankrupt insofar as its legal reasoning is concerned. India’s simultaneous assumption of the roles of policeman, prosecutor, juror, judge, and executioner in this matter clearly demonstrates its disinterest in lawful and peaceful engagement with its neighbours. Interestingly, all the legal and diplomatic salvos were fired simultaneously by India: it also revoked all visas, declared Pakistan’s diplomats persona non grata, and closed the Attari border.
Fueling its information machine with false narratives based on misinformation and disinformation, India attempted to engage in politics on an issue of criminal justice by escalating it into an international peace and security issue. All these actions by India are inconsistent with the existing, albeit waning, international legal order, which vests the United Nations Security Council with the authority to address such situations. Nonetheless, from both ethical and legal standpoints, reneging on one’s legal obligations is squarely immoral and constitutes a violation of the treaty and customary international law principle of pacta sunt servanda. This principle, requiring that agreements must be kept, stands as a foundational norm of international law and ultimately prevails over the technicalities and legal formalities embedded within the dispute resolution framework of the Indus Waters Treaty.
In response, Pakistan termed India’s unilateral decision to place the Indus Waters Treaty in ‘abeyance’ as an ‘act of war’, indicating the severity of the decision and its potential impact on Pakistan’s water security. The message was clear: lawfare is the only workable solution; anything outside of this framework will carry serious consequences for both countries. Since the incident, lawfare experts have proposed a range of workable legal solutions, from reviving the Indus Water Treaty dispute resolution mechanism to taking the matter to the Security Council of the United Nations. However, the hostile environment stoked by hatred and the hawkish approach by India is fast eroding the trust and patience required to deal with such situations.
For some time, India has been carrying out terrorist attacks against Sikhs in Canada, the United Kingdom and the United States and is now accusing others of the very conduct that is its evident and proven strategy. Earlier, India did receive pushback on this from the Western world pre-Trump 2.0, which has since then become more divided than ever.
Pakistan has little or nothing to lose in departing from the lawfare framework as it has been dealing with existential threats for a long time and has the resilience to deal with any eventuality. For India, however, things will not be rosy, owing to the latest economic stand-off between the US and China, prompting China to adopt a clear position on many issues, including choosing one of its neighbours over the other.
Among the various legal options available within the lawfare framework, one notable avenue, recognised under the national legal systems of both India and Pakistan, is the exercise of extra-territorial jurisdiction under their respective Penal Codes, Codes of Criminal Procedure and the Anti-Terrorism Acts, which may be invoked as a form of universal jurisdiction against terrorism. This first step would reframe the issue within the realm of criminal justice, thereby downgrading it from India’s current portrayal as a matter of international peace and security. Secondly, joint investigation mechanisms may be evolved by utilizing the principles of international cooperation and mutual legal assistance as contained in the United Nations Convention on the Transnational Organised Crime 2002 (UNTOC). Although the UNTOC is not specifically tailored to address terrorism, it offers valuable guidance for fostering cross-border collaboration in criminal justice matters.
In all of this, time is of the essence, both for the collection of evidence and for the de-escalation of the conflict. Any delay may prove detrimental to all parties involved.