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India Adopts Bush’s “Hot Pursuit” Principle

The United States says it has a right to chase terrorists in other countries. Now, India is following suit—in Pakistan.

Indians celebrate the strike on a target in Balakot. (Punit Paranjpe/AFP/Getty Images)

It is a page from the American playbook. On February 26, 2019, twelve days after a suicide bomber with a truck laden with explosives rammed into a bus carrying Indian paramilitary soldiers, Indian planes soared across the Line of Control into Pakistan. They continued on for nearly seventy kilometers before releasing their payload in the town of Balakot. Sleepy villagers reported hearing terrifying explosions; after dawn broke, they investigated and found a large crater.

It was a brazen move by India, devolving quickly into what analysts and news reports deemed “the worst military crisis between the two countries in decades”: Pakistan shot down at least one aircraft and captured an Indian pilot in a dogfight the following day. There were claims and counter-claims from either side as bombing continued on the border between the two countries. Until Friday, all of Pakistani airspace was completely closed, with nighttime blackouts to prevent detection of settlements by Indian aircraft.

On the other side, Indian television roared with approbation at the bombing. After all, the war-fevered analysts on Indian television declared, it was established American practice that hunting terrorists sometimes requires hopping, skipping, and ignoring the sovereign borders. If terrorist organization Jaish-e-Mohammad, which deploys militant means for independence for the disputed territory of Kashmir, had sponsored the bombing, then pursuing them into Pakistan was fair game.

The precedent set by American neoconservatives ensconced at the helm of the Bush administration, in short, should hold for India, too.

In September 2001, President Bush launched what would be called the War on Terror, declaring that the United States was in “hot pursuit” of Osama Bin Laden and the Taliban harboring him in Pakistan. “Hot Pursuit,” his administration later explained (drawing from the police doctrine with the same name), permitted the United States to go chase Al-Qaeda, et al, wherever it had set up operations. The argument was simple: Al-Qaeda was a “transnational terror organization” whose bases were “principal theater of operations ... not within the territory of the nation that is a party to the conflict” and so chasing it over recognized national borders was justified. It was the “hot pursuit” doctrine that was offered up in the aftermath of the balmy May evening when American helicopters entered Pakistani airspace, landed inside a walled compound and killed and carried away the most wanted man in the world—Osama Bin Laden.

This week, the Indian government decided they could do the same thing. Jaish-e-Mohammad, the organization that they blame for the terrorist attack on soldiers in Pulwama, they insist, has bases in Pakistan. They flew into Balakot, in Pakistani territory, simply because they were attacking a terrorist base operated by Jaish-e-Mohammad. Immediately after, they insisted that they were in pursuit of Maulana Masood Azhar, the leader of Jaish-e-Mohammad. Then they tossed around words like “surgical strike” and then embossed it all with the familiar all-justifying label of “War on Terror.” Indian news sources declared that a camp had been destroyed and 350 terrorists had been killed. In later statements, the Indian Air Force would qualify this claim somewhat, saying that accurate estimations of casualties could not yet be made.

The Indian goal behind this reframing is not hard to intuit. With the United States drawing back from the region and talking peace with the Taliban at literally the same moment as the attack on Pulwama, the Indians likely feel uncomfortable being left alone, so to speak, with a Pakistan free from its American minders. Reframing their 72-year-long beef with Pakistan over the disputed territory of Kashmir as part of a larger campaign against terror—something they have argued before, but never to justify a territorial incursion of this magnitude—has distinct advantages, as other countries have also found since 2001. (China has justified brutal repression of the Uyghurs using the war on terror, as well.)

Even the United States had a tough time selling the “hot pursuit” doctrine. When a German prosecutor general reviewed the claim in 2015, while considering whether to pursue actions against the United States for the death of a German citizen in a 2010 drone strike in Pakistan, he scoffed at the notion that conflict extends to any counter-terrorism operation, without any territorial limitation. “Such a blanket justification for acts of war contravenes the underlying spirit of international humanitarian law,” he wrote, “namely to place the maximum possible constraints on war per se, as well as on the methods by which it is waged and the populations which it impacts.”

The lack of international law to support its unilateral incursion into Pakistani airspace is not the only problem India faces in trying to reframe the Kashmir conflict, which dates back from Partition at 1947, when Muslim-majority areas of the subcontinent, like Kashmir, were to accede to Pakistan. Owing to machinations of the area’s then-monarch, this did not happen, and since then India, in contravention of UN resolutions, has denied Kashmiris the right to have a plebiscite and decide their own fate.

Coincidentally, in the days after the Pulwama attack, when India was sounding the war drums, atrocities against the Kashmiri people were also in the news—being reviewed at an event held under the auspices of the European Union’s human rights commission. At the end of the convening, Pakistan’s foreign minister tweeted that the EU subcommittee on human rights had “asked India to immediately halt atrocities in Kashmir”, which according to a prior UN report has included over 4,000 enforced disappearances, as well as violations of rights to education, health, and freedom of expression. Such a discussion of Indian policies in Kashmir, the first in the EU since 2007, was obviously not one that India wanted to have. The Kashmir problem, it has long been insisting, has to do with terrorism and not its longstanding territorial gripe with Pakistan.

The renewal of hostilities in India and Pakistan this week alarmed analysts and politicians all over the globe, due to the longstanding fears of two nuclear powers in open conflict. Focusing on the particulars of these countries’ history, it’s easy to forget that the spread  of the “hot pursuit” doctrine both contributed to this dangerous moment and has the potential to trigger many others, both in this region and elsewhere. The United States, even following the Bin Laden raid and now its departure from Afghanistan, has not sworn off this bit of legal invention. In the meantime, other countries like India are eager to repeat what the Americans have done. After all, the United Nations did little when the United States blew up targets in independent nations with drone-borne bombs; perhaps it will be similarly weak in stopping others.

That is the bet India has made: that a few bombings in a neighboring country, if accompanied by a dribbling of terms like “hot pursuit” and “war on terror,” will not get much censure from the international community. In this calculation, they may have been right. But unlike the United States, India is not targeting a far weaker enemy—and international censure is not the only way such a strategy can backfire.