Kabul: ‘unable’ & ‘unwilling’

IF Pakistan undertakes air strikes inside Afghanistan to decrease, degrade and destroy the capability of terrorist groups who carry out attacks on its soil, does it justify India’s stance of conducting strikes — similar to the ones it resorted to last year — on Pakistani territory? In my view, it does not. This is because, from a legal perspective, the two cases are entirely different.

However, it is still important to underscore the importance of a long-term solution to unpleasant bilateral issues — no matter how bitter or intense, and regardless of whether diplomatic or political means are used. And nobody should advocate for the indefinite use of force.

But when, despite its peace efforts, Pakistan sees 80 terrorist attacks in February, 146 in March, 85 in April — in fact, hundreds in the past one year — how long can it afford to wait for a diplomatic solution? The state is, in fact, left with no choice than the resort to force in order to incapacitate terrorist groups and curtail the mischief coming from across the Afghan border. Such use of force is justified under the customary practice of self-defence formulated in recent times under the UN Charter. Every strike is intended to prevent another attack. The attacks are averaging three per day. It is unfortunate that a series of brutally executed attacks, across Balochistan and KP in particular, also meet the criterion of ‘imminent attack’ that the law of self-defence so requires.

Also Pakistan’s selection of target has been declared as confined to military objects — such as ammunition depots, weapons storage and terrorist training venues and sanctuaries in Kabul, Kandahar, Paktia, Paktika, etc — for which it gathers intelligence from ground tentacles or uses satellite imagery. Any ancillary damage to civilians or error in choosing a target — a regrettable consequence of all aerial operations — has its own fallout.

The object is not to attack Afghanistan as a state since it has said several times that it has not authorised any group to undertake terrorist strikes in Pakistan. Yet, it has completely failed to prevent such attacks. This is where one notices that the Kabul government is unable to exercise executive, police or military control over the terrorist groups. Whereas the view of Pakistan’s defence minister is that Kabul is deceiving Pakistan by pretending that it is unable to control the terrorists, and instead, is actually unwilling, because of Afghanistan’s alleged secret deal with India, which allows the latter to directly conduct operations against Pakistan through terrorist groups or their proxies. The ‘unable’ or ‘unwilling’ standard is a recent development at the intersection of international law and politics.

There’s no legal parallel between Pakistan’s strikes in Afghanistan and India’s aggression.

Meanwhile, India’s strikes on Bahawalpur and Muridke last year are nowhere close to meeting the well-recognised criterion of using force unilaterally in self-defence. There was no imminent attack about to originate from these venues against India. And those they were trying to kill had already been disabled and were facing multiple actions under Pakistan’s own terrorism and FATF compliance laws. Most of them were struggling in Pakistani courts to seek de-sealing of their properties and bank accounts or had filed appeals to the UN ombudsman for removal of their names from lists proscribing the Al Qaeda, the Taliban and their ilk.

If Sindoor was in reprisal to Pahalgam then that too was not permissible unless India at the very least proved attribution to Pakistan through proof — which it still hasn’t more than a year after the event. As I wrote earlier, the correct action for India would have been to ask Pakistan — under the Indian Criminal Procedure Code read together with Section 19 of Pakistan’s Mutual Legal Assistance Act, 2020 — for an investigation, thus embarking on the law-enforcement or lawfare route. Instead, India opted for the highly disproportionate warfare route or military action and ended up inflicting great embarrassment on itself.

Why Pakistan’s strikes inside Afghanistan do not conflict with its protest against Indian strikes is that Pakistan is much more willing and credibly able to counter terrorism within its borders. It has a robust law-enforcement mechanism in place, an investigation apparatus, prosecution frameworks, far more effective policing and better intelligence capabilities than its neighbour across its western border. It exercises far superior executive control over all its territories than does the government in Kabul.

Pakistan FATF reviews have endorsed the fact that the state’s action against terrorism and terrorists have been both effective and result-oriented. These considerably favourable FATF and CTC reviews are also at the cost of Pakistan’s own long-standing policy that Kashmiris have the right to be supported under international law in their struggle for self-determination. Pakistan faced tough appraisals after the Mumbai attacks of 2008 in particular but over the last 18 years no global counterterrorism forum has been able to point out any specific overt or even covert support to any non-state actor to undertake terrorism strikes inside mainland India.

This was the political commitment of the entire spectrum of political leadership in Pakistan and the armed forces and intelligence agencies backed it up. Pakistan, then, unlike Afghanistan qualifies for the ‘able’ and ‘willing’ test thus disentitling India from arguing any right to the unilateral use of force.

In other words, there is no conflict in Pakistan’s state practice vis-à-vis India and Afghanistan on the use of force to counter terrorism. As discussed, Pakistan has the right under the international law of self-defence to carry out strikes inside Afghanistan as the latter is both unable and unwilling to stop terrorist attacks on Pakistan that emanate from its soil, whereas India’s earlier or threatened unilateral actions lack the essential ingredients needed to invoke self-defence. Further, India cannot successfully claim any such right because Pakistan is meeting both the able and willing standards.

The writer is an advocate of the Supreme Court and a former caretaker law minister.

Published in Dawn, June 13th, 2026

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