Pakistan’s right of self-defense against a non-state actor operating from Afghanistan is legally permissible. Escalation of cross-border tension has been followed by the rise of the Afghan Taliban in 2021, which was once celebrated by Pakistan. It ultimately became a great threat to its stability and security. Pakistan justified airstrikes as the right to self-defense against the non-state actors operating from the soil of Afghanistan. While on the other hand, Afghanistan has countered these airstrikes as an attack against its sovereignty. Here, the question arises: whether Pakistan can exercise its right to self-defense against a non-state actor?

Friendly relations with the Afghan government cannot be established at the cost of Pakistan’s national security. Since the rise of the Afghan Taliban Government, Pakistan has experienced an alarming increase in terrorism. Most of these terrorist attacks have been carried out by the Afghan Taliban backed sanctioned terrorist group Tahreek-e-Taliban Pakistan (TTP). Exclusively in 2022, TTP has taken responsibility of 367 terrorist attacks across Pakistan. Khyber Pakhtunkhwa (KP) and Balochistan have been the main targets of these attacks. Non-stop terrorist activities have provoked Pakistan to launch preemptive strikes against the sanctioned terrorist organization, seeking shelter in Afghanistan.

Pakistan is compelled to choose the right to self-defense to protect sovereignty while restricting the use of force under Article 2(4) of the UN charter. The threshold of an “armed attack” of Article 51 of the United Nations Charter has to be established to legalize Pakistan’s preemptive air-strikes. The Pakistan attack is retaliation for several militant operations, including suicide bombing, target killings and assaults against the security forces. All these constitute the “large-scale acts of violence” which have been introduced in International Law by ICJ through the Nicaragua case. Though the Nicaragua case set a precedent that the right to self-defense is not enjoyable against a non-state actor. Yet Article 51 of the UN Charter, in the absence of the word “state”, enables it against the non-state actors as well.

Article 51 of the UN Charter gives Pakistan an inherent right of self-defense against a non-state actor. The precedent of this right to self-defense has been set by the American invasion of Afghanistan after the 9/11 incident. The exception of Article 2(1) of the United Nations Charter was also noticeable in the Invasion of Iraq by America. The Afghan invasion by NATO has also underlined this exception of use of force for self-defense. Similarly, targeting the hide-outs of Kurdistan Workers’ Party (PKK) by Turkey, in the mountains of Northern Iraq by Turkey, considering it a terrorist organization and a great threat to the security of Turkey, also set the precedent of primitive strikes.

The well-established rule of International Humanitarian Law, “principle of proportionality” is a bedrock of right to self-defense, in order to make Pakistan’s preemptive strikes legitimate. The use of force must be proportionate to threat under the International Humanitarian Law. Though the casualties have been noticed over cross-border tension, which is impossible to avoid in war. Yet the hide-outs of Tahreek-e-Taliban were on target, not the civilians. Despite the dominant side over cross-border tension, the willingness of Pakistan for Doha talks indicates that Pakistan want to solve tension through dialogues, not on battlefield.

The absence of regional talks, mediation or arbitration further amplifies existing tension. The shield of right to self-defense against a non-state actor provided by international law is the last resort. The terrorist activities of Afghanistan-backed TTP create a great instability and threat to Pakistan’s National security.  In last years, Pakistan had made many diplomatic attempts to get Afghanistan to act decisively, but the Afghan Taliban government had failed to satisfy Pakistan regarding its concerns about terrorism. The non-reciprocal response from Afghanistan; left no room for Pakistan to counter the terrorist attacks except by exercising right to self-defense.

The traditional doctrine of International Law, “unwilling or unable”, backed the preemptive air-strikes of Pakistan. The Afghan Taliban Government strategically denied this doctrine and raised the argument that Pakistan’s attack is a breach of Article 2(4) of the United Nations Charter. Despite the allegation of Afghanistan that terrorism is Pakistan’s internal problem, not the act of non-state actor. The inherent right to self-defense backed by evidence can’t be taken away merely on the basis of assumptions. International Law recognises right to self-defense when a neighbouring state fails to uphold the stability and is unwilling to counter the threat. The Afghan Taliban Government’s argument doesn’t have legal standing in the context of the principle of self-defense, despite resonating diplomatically.

Ultimately, the temporary tension between these states has been resolved by the ceasefire. But in the long term, diplomatic relations must be observer between Pakistan and Afghanistan to counter terrorism. A bilateral treaty between both these states to counter terrorism and the operation against the non-state actor has to be observed. In addition to this, regional talks through the intervention of China and Iran would be a cornerstone in peace across the borders. All these measures have to be made to maintain regional stability in South Asia.