Is putting Indus Water Treaty in abeyance an ‘Act of War’? – Indian Blog of International Law

Aman Kumar

In response to India’s act of putting Indus Water Treaty (IWT) in abeyance, Pakistan said that “any attempt to stop or divert the flow of water belonging to Pakistan as per the IWT, and the usurpation of the rights of lower riparian will be considered as an Act of War and responded with full force across the complete spectrum of National Power” (emphasis mine). Two questions spring out here – firstly, what is an Act of War; and secondly, what comprises full force as per this statement? This post will try to answer the first question. The second one will be discussed in a subsequent post.

Things pertaining to War (also called ‘armed conflict’ though not always the same) is generally covered in the ICRC documents. Yet, none of the Geneva Conventions define what is an ‘act of war’. Even Pakistani domestic legislations related to Defence, and Crime do not define what might be an act of war. Section 121 of the Pakistan Penal Code is titled ‘Waging or attempting to wage war or abetting waging of war against Pakistan’ but it doesn’t discuss ‘act of war’.

Legal or Political term?

Warren Buffet, reacting to the tariffs imposed by USA’s President Donald Trump, called it ‘an act of war’. “A tariff is an act of war, to some degree. It may not draw blood right away, but make no mistake: it is an act of aggression that invites retaliation”, he said. Buffet is not an international lawyer, and might just have been expressing his economic or political opinion. But Pakistan’s usage of the term was in an official statement reacting to India’s actions post Pahalgam terrorist attacks.

One then looks at other national jurisdictions to get a sense of this term. The Oxford Essential Dictionary of the U.S. Military states that an act of war is “an act by one nation intended to initiate or provoke a war with another nation; an act considered sufficient cause for war”. A few caveats before I use this definition in the current Indo-Pak context. USA has been a known neo-imperial war monger. Their definitions are obviously curated to justify their armed interventions all across the globe, including Afghanistan, a country with which both India and Pakistan share a border. Therefore, any reliance on a definition drafted by the USA has to be with caution and awareness of their imperial tendencies.

So what does this definition tell us? At the outset, it’s clear that the intention of the first party, in this case India, is very important. It must be clear that by stopping the flow of water into Pakistan through the Indus river system, India intends to ‘initiate or provoke a war’ with Pakistan. This is far fetched at the moment. India’s actions were in reaction to a terrorist attack on its soil, disputed as it might be, and resulted in killing of Indian nationals. The organisation taking responsibility of the attack are based in Pakistan and India’s actions are reactions to the attack. As such, I find the intent to ‘initiate or provoke a war’ missing. Here I am choosing to ignore the the fact that The Resistance Front (TRF) issued a clarification saying that they are not responsible for the attack after an initial claim taking the responsibility. As this is an academic exercise discussing an evolving situation, I cannot wait for all the evidence linking the attacks to TRF or any other organisation/State to come to light.

The second element in the definition is that the act should be considered ‘sufficient cause for war’. This is a very broad criteria (again emphasising the imperial intentions of the USA) and can be interpreted widely. Pakistan relies heavily on the water of Indus river system. In the long term, India might be able to damage Pakistan’s agriculture though. But this doesn’t mean that putting IWT in abeyance can be considered as a ‘sufficient cause of war’.

Another definition is found in the Encyclopaedic Dictionary of International Law which also narrates a history of the term ‘act of war’ from the Covenant of the League of Nations. I reproduce the relevant part below:

“The expression ‘act of war’ acquired a quasi-technical significance primarily by reason of the stipulation of art. 16(1) of the League of Nations Covenant that ‘[s]hould any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war (un acte de guerre) against all other Members of the League….’ By contrast, arts. 12, 13, and 15 do not speak in terms of an ‘act of war’, but rather of ‘resort to war’ and of ‘go[ing] to war’. Nevertheless the Committee of Jurists consulted by the League Council following the Corfu Incident of 1923 was asked: ‘Are measures of coercion which are not meant to constitute acts of war consistent with the terms of Articles 12 to 15 when…taken… without prior recourse to the procedure laid down in these Articles?’ The Committee answered that ‘[c]oercive measures…not intended to constitute acts of war…’ might or might not be consistent with arts. 12–15. From this it would seem to follow that an act of war is either intended by the actor State to bring about a condition of war or, though not so intended, may be regarded by the State against which it is directed as having done so…” [Emphasis mine]

Here again the focus is on intention, something we have already discussed. The second important part is when the intention becomes immaterial if the other state, against which the action is directed, nonetheless regards the action as an act of war. This is where the discussion becomes tricky. Applied to the current context, this would mean that if Pakistan regards putting IWT in abeyance as an act of war, then it is an act of war. A far too broad power to have in a war like situation! What makes this even more worrying is that as early as 2002 Pakistan had said that ‘stopping of the waters of the Indus river’ will be considered as ‘economic strangling of Pakistan’ and will trigger a nuclear response. It’s worth emphasising here that while India has a ‘no-first use’ policy regarding nuclear weapons, Pakistan’s nuclear weapons ‘are aimed solely at India’.

Conclusion

As of now, there is no clarity from Pakistan about the definition of ‘act of war’. The above discussion tells us that Pakistan calling stopping IWT water as an ‘act of war’ will not hold water in a court of law. It was said that the ‘act of war’ argument is linked with Article 51 of the UN Charter. I don’t agree, primarily because post League of Nations, the term ‘act of war’ was not used when the UN Charter was being drafted and terms like threat to the peace, breach of the peace or act of aggression were preferred for more clarity. Reference to UN Charter might be more relevant to discuss the second part of Pakistan’s response where it has mentioned responding with ‘full force’. The next post will discuss that argument.