Indian Defence Review

Cyber Attack – An Act of War?

It would be apt to notice that the US has recently concluded that the laws of armed conflict can be applied to cyber warfare. The new strategy would adapt the existing right of self defence contained in the UN charter by bringing cyber weapons under the definition of armed attacks.

In 2011, the White House issued the following statement, “When warranted, the US will respond to hostile acts in cyberspace as we would to any other threat to our country. We reserve the right to use all necessary means — diplomatic, informational, military, and economic — as appropriate and consistent with applicable international law, in order to defend our Nation, our allies, our partners, and our interests. In so doing, we will exhaust all options before military force whenever we can; will carefully weigh the costs and risks of action against the costs of inaction; and will act in a way that reflects our values and strengthens our legitimacy, seeking broad international support whenever possible.”

Thus, the US government is rewriting its military rule-book to include cyber attack as an act of war, reserving an option of launching retaliatory military strikes against hackers backed by hostile foreign powers. The laws of armed conflict are widened to embrace cyber warfare to use force against assaults on its computers and IT infrastructure. This significant step may lead to the militarisation of cyberspace. But, the right to self defence includes not only to protect the geographical boundaries, but also to secure all the assets of the nation, like water, air, rivers, minerals, forests or even industry, their products, supplies, raw materials – both government owned or private undertakings. This nation must become offensive by treating cyber attacks also as an act of war against the sovereignty, because cyber attackers leave no bodies, no smoking guns, no polonium trails and no easy answers.

Other Emerging Threats

Another recent threat is the expansion of the Islamic State of Iraq and Syria (ISIS) which functions through terrorism as a tactic. From Africa to the Middle East to South Asia, the al-Qaeda, and other jihadi groups are engaged in acts of violence against civilians creating fear to address wider audience. They regularly carry out assassinations, sabotage, and hit-and-run attacks on their perceived enemy’s armed forces, police, government and economic targets. They run an organised, prolonged armed insurgency designed to weaken the control and legitimacy of any established government.

Their activities come within the mischief of the Roman Statute of the United Nations Diplomatic Conference [1988] which defines the “Crimes Against Humanity” to mean any or all the acts committed as part of a systematic attack directed against any civilian population like: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, pregnancy, sterilisation, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognised as impermissible under international law, in connection with any act or similar crime; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhuman acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

In sum, the Republic of India is suffering from many kinds of terrorism emanating from the shelter provided by its hostile neighbours also. These have been conceived, born and nurtured in the ideology of fanatic intolerance.

The Way Out

Every member state of the United Nations represents its populace. The rulers who may be monarchy, dictatorship or democracy exercising the domain over the conduct of their population, hence the treaties entered into inter se by the states also bind the rulers as well as their people in the matters of business, commerce and all other subjects. The resolutions of the UNO and its affiliate bodies have also acquired similar sanctity, thereby mutual assistance is extended in the matters of control of trans-national crimes, drugs and narcotics control by extraditing or trying the offenders to sustain the mutual relationships.

The terror outfits also operate and patronise the drug and crime mafias in many countries where the writ of the legitimate rulers does not extend, and about which the rulers express helplessness, mostly because of the tacit benefits to the rulers. It is here the excuse of non-state actors is touted. There are no means to prosecute the non-state actors for any conduct which affects the sovereignty of another country. However, since every terrorist act is also a crime, the perpetrators become liable under the domestic criminal law of the victim country.

The states which are nurturing and nursing terrorists must be held responsible for the conduct of non-state actors because they operate from within the territorial boundaries of the host country. Every state is bound to respect the sovereignty of other countries, and hence these states cannot avoid its liability by any excuses. India’s vital interests can be better served by invoking the expanded doctrine of offensive self-defence, which has witnessed a normative evolution, particularly in relation to non-state actors, following the events of September 11, 2001. This expanded doctrine, has also gained acceptance of the Western powers and scholars which permit the victim states to use force against non-state actors and breach the territorial sovereignty of foreign states in response to an accumulation of terrorist attacks.

Following these principles, India successfully invoked the right of hot pursuit in Myanmar in June 2015.

The UN Security Council in its Resolution No 1373 dated September 28, 2001, has inter alia mandated the member nations thus, “To ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.”

POTA 2002 was enacted in the face of the attack on the Parliament of India as well as to honour Resolution No 1373. But curiously, the UPA government chose to respect only the religion of the offenders over the pride of the nation. Hence, it allowed the POTA to lapse in 2005.

All these unpleasant events are waiting to happen, but, unfortunately, the stubbornly malicious and hateful approach of the non-BJP parties in the Rajya Sabha intends to make the present Union Government dysfunctional in all its efforts to meet any threatening situation. The only alternative is to take recourse to the executive power of the Union of India, without any law made by the Parliament, which will be legally tenable in view of the law declared by the Supreme Court of India. In fact, the actual test of power depends on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

We are now in a situation calling for instant response to the looming threats, which need to be met in the same manner as waging a war. The Republic of India is now defending itself against the onslaught, and the response requires us to be proactive as well as offensive-defence. There is no need to lose sleep or shed tears for the human rights of the inhuman perpetrators. The Courts will also not restrain the government for protecting the borders and ensuring tranquility because when a crisis arises in the life of the nation, the rights of individuals must be postponed to considerations of national safety. It will, therefore, be prudent for the Union Cabinet to shift ‘terrorism’ from the Home Ministry to the Ministry of Defence, which will issue the appropriate notifications, and get a free hand to crush the unwanted forces.

It is an undeniable fact that all such acts of terrorism being committed against the Republic of India, are not capable of being executed unless they get local shelter and escape routes. These local abettors also happen to be citizens of India. Hence, an anomaly will arise as to whether the Government of India while exercising its right of neutralisation against the foreign nationals, can also treat its own citizens in the same manner? The answer has to be ‘Yes’ because the citizens of India, by becoming active service providers to the enemy, also become co-conspirators by sharing the common intention, which carries the very same liability in an act of war against the country.

Therefore, it becomes the responsibility of the Council of Ministers to authorise the use of the forces by the Republic of India even against the so-called foreign non-state actors and their local abettors, which would be lawfully justified not only under the Constitution, but also under the International Law, because, the responsibility to protect the nation and its inherent right to self defence is recognised in the International Law vide Article-51 of the United Nations Charter.

Whenever any citizen of India becomes an accessory to the hostile forces, the application of the laws of war against him will be lawful. Whether the capture of a terrorist and his accomplices is feasible or not, is a fact-specific, and potentially time-sensitive, question depending on, whether capture can be accomplished in the window of time available to prevent an attack and without undue risk to civilians or to our personnel. Given the nature of how terrorists act and where they tend to hide, it may not always be feasible to capture them even if they present an imminent threat of violent attack. In that case, our government has the clear authority to defend the nation with lethal force.

The government must declare that any Indian citizen who is actively collaborating, conspiring, abetting the enemies planning to kill Indians and/or destroy Indian assets, deserves the same and similar treatment as enemy aliens. Such natives deserve to be neutralised instantly because [i] the individual poses an imminent threat of violent attack against the Republic of India; [ii] the capture is not feasible as these persons shift places; and [iii] the operation would be conducted in a manner consistent with applicable law of war principles, because except lethal force there are no other alternatives to address such threats.

The US Supreme Court has held In Quirin, 317 U.S. 1, at 37-38 (1942), that the citizens who associate themselves militarily with the enemy government are enemy belligerents within the meaning of the Hague Convention and the law of war, and the military necessity admits of all direct destruction of life or limb of armed enemies.

Any operation of the victim state would be a part of such a non-international armed conflict even if it takes place away from the zone of active hostilities. Therefore, in the light of such emerging situations, faced by India, it will not be considered as an act of full-fledged war if any surgical strikes are to be carried upon the territory of any hostile nation. International law recognizes the inherent right of national self defence.

But just as we are a nation at war, we also are a nation of laws and values. There is no distinction between our civil courts and the military tribunals. Both incorporate fundamental due process essential to the effective administration of justice. Our criminal justice system is renowned not only for its fair process; it is respected for its results. The Honorable Judges of the Indian Supreme Court assembled even at two o’clock in the morning to examine whether the death sentence can be avoided to a condemned prisoner.

Our Supreme Court has also made clear that the Due Process Clause does not impose one-size-fits-all requirements. “Due Process” and “Judicial Process” are not one and the same, when it comes to national security. The Constitution guarantees due process, not judicial process. The Military Tribunals are appropriate as the realities of war zone are better appreciated in such fora only.

Conclusion

India is under siege from the year 1947. The creation of Pakistan has revived the mindset of Islamic expansionism. With even Bangladesh becoming an Islamic Republic, the Indian Republic has now been sandwiched between twin blades of Islamic scissors.

The ISI, JeM, JUD and ISIS are the same demon in different skins. The first priority should be to exterminate the local facilitators by applying the laws of war, and the trial of the survivors and/or their sleeper cells only by Military Tribunals. Cyber terrorism should also be treated as an act of war and dealt with accordingly. The internet should be banned for abhorrent sites. The situation is precarious and alarming.

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Even after the Constitution was enacted, the Shariat Act 1937 of the British era continues to exist. The result is that in the name of secularism, the tenets of Islam have been pushed down the throats of the rest of Indians, and the Shariat has come to occupy a higher pedestal than the Constitution of India. Personal Laws have created islands of sub-nationalities. Those who profess Islam, in fact, profess loyalty to the Islamic Umma and not to the motherland. There is subterranean proliferation of Qazzat courts and Shariat courts in India. Muslims are determined to push their religious doctrines on the Indian people. Shariat Law is being used as a defence in Indian courtrooms. Once the Shariat Act 1937 is repealed, everyone will agree to the mandate of Article 44 for Uniform Civil Code.

The Hamtramck Town of Michigan State (USA) has recently become a Muslim majority City and the Shariat is being implemented immediately. The Shariat Law is banned in 16 States of USA, namely, Alabama, Arkansas, Florida, Indiana, Iowa, Kentucky, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Texas, Virginia, Washington, West Virginia and Wyoming. Liberalism, secularism and tolerance have become the rendezvous for disloyalty with agents of the ISI, JUD, JeM and ISIS proliferating with impunity in India. They have proved to be an aggressively metastasizing cancer which cannot be cured by homeopathy or chemo-therapy but only by invasive surgery.