Tarun Singh

Winthrop 75

Indo-Pak War of 1971: Was Pakistan’s Preemptive Strike Legally Justified?

Section 1 – Introduction

Bangladesh, then East Pakistan, declared independence from Pakistan in March 1971.

The declaration of independence sparked, then West Pakistan, to launch an attack on

Bangladeshi citizens. Pakistan’s operations in Bangladesh displaced a total of 10 million

civilians many of whom became refugees in India. In response to Pakistani actions, India

actively aided the Mukti Bahini or the Bangladesh liberation army. Fearing armed Indian

intervention in Bangladesh; on December 3, 1971 Pakistan launched a series of preemptive air

strikes on India in an operation codenamed Operation Chengiz Khan. The operation was

designed to neutralize Indian Air Force (IAF) capabilities when an attack was least expected.

The air strikes attacked both IAF runways and air defense radars. In a radio broadcast to the

nation, Indian Prime Minister Indira Gandhi, announced that the Pakistani strikes would be

considered a declaration of war. India responded by launching its own attacks on West Pakistan

and coordinating attacks with the Mukti Bahini in East Pakistan, eventually leading to

Bangladeshi independence.

This paper looks to evaluate whether Pakistan’s preemptive strikes on India in December

1971 was legally justified. In order to do this I will first describe the immediate and minor actors

in the conflict, provide background and historical information about the relationship of the actors

with each other leading up to the conflict. Then I will turn to evaluating the Pakistan’s decision

to preemptively strike Indian Air Force installations and the legality of the action.

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Section 2 – List of Actors

Immediate Actors:

• The population of East Pakistan which would eventually become Bangladesh

• The Mukti Bahni - a group of guerrilla fighters fighting for the independence of

Bangladesh

• The government of Pakistan - controlled by the Pakistani military and pro-West Pakistan,

led by President (and military General) Yahya Khan

• The government of India, led by Prime Minister Indira Gandhi, which had been

supporting the Mukti Bahni and had been involved in multiple wars with Pakistan

Other Actors:

• The government of the United States of America which had traditionally supported

Pakistan with military aid

• The government of the Soviet Union who had historically been allied with India

• The People’s Republic of China which fought a war with India in 1962

• The United Nations.

Section 3 - Background Information

In order to understand the 1971 conflict it is imperative to understand the complex and

dynamic relationships between the three major actors in the war: India, Pakistan and Bangladesh.

This section provides the historical background and describes the events that led up to the 1971

war between Indian and Pakistan by looking at the three different actors and their relationships

with each other.

Section 3.1 – Indo-Pak Relations Pre-1971

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 The history of India and Pakistan’s existence has been marked with hostility. The two

nations have postured as opposites rhetorically and in their organization of government. While

India was established as a secular state, Pakistan was designed as an Islamic Republic. Despite

the two countries’ mutual distaste for each other, the countries had a commonality that couldn’t

be ignored, an approximately 1500 mile shared border between West Pakistan and India. The

hostility between the two nations is best exemplified by the fact that within ten weeks of their

independence in 1947, the two nations fought their first war over the territories of Jammu and

Kashmir.1

Immediately following the independence of the two nations, India held a two to one

advantage over Pakistan in military strength. In 1950 India signed a “Treaty of Peace and

Friendship” with Afghanistan, leaving West Pakistan surrounded by India and a cooperating

Afghanistan. Pakistan responded by signing a Mutual Security pact with United States in 1954,

reversing the pressure that had been put on Pakistan by the 1950 treaty between India and

Afghanistan. Pakistan used its relations with Western powers to amass greater military strength.

Indian fear of a Pakistani attack was increased after the 1962 Indo-Chinese war, which left India

worried about an attack from both its western (Pakistan) and eastern (China) neighbors. Despite

Indian efforts to procure weapons, by 1965 India’s armored strength remained below that of

Pakistan.2 Lacking firepower, the Indian government turned to the Soviet Union and procured

MIG-21 fighter aircraft as well as other weaponry.3

1
Marwah
2
Marwah
3
Kapur

3
 Thus, a complicated web of relations had been established; India and the Soviet Union on

one end while Pakistan and the United States were allied on the other with speculation of a

China-Pakistan alliance.

Section 3.2 – Relations between Bangladesh and Pakistan

From the time of Pakistan’s independence there had been concerns that the government

of Pakistan, based in West Pakistan, had been denying East Pakistan adequate representation.

Members of the East Pakistani elite were repeatedly accused of being pro-Indian and as a result

were routinely charged by special tribunals and held in Pakistani jails.4

In 1969 the Pakistani government decided to hold open democratic elections after years

of having a military regime. The country’s intelligence agencies had estimated that no political

party would attain a majority in the assembly and therefore the military regime would still be

able to retain a large degree of power. However, due to the large population of East Pakistan the

Awami League, an East Pakistani party, was able to garner more than fifty percent of the seats

and thus had more power in the upcoming drafting of the Constitution. The dispute worsened

when the Pakistan People’s Party (PPP) from West Pakistan demanded equal representation in

drafting the Constitution. Fearing a loss of control the Pakistani Army planned to thwart the

demands of East Pakistan through the use force while the PPP, led by Zulfikar Ali Bhutto,

refused to attend the Assembly unless the Awami League agreed to equal representation when

drafting the Constitution. Pakistani military operations in East Pakistan, which started on March

25, 1971, were directed at eliminating Awami League members and the Hindu minority in the

region. In late June, General Yahya Khan announced a constitutional plan that outlawed “anti-

4
Blair

4
state” actors from being members of State and National Assemblies. During this process, West

Pakistan officials disarmed and incarcerated members of the military and police in East Pakistan.

As a result, around 300 members of banned political parties met in the first week of July to begin

what would become the Bangladeshi liberation struggle.5

Both the United States and the Soviet Union responded to the military operations by

condemning the subsequent killings and urged a political solution. China chose to maintain the

stance that the problems in Pakistan were issues of national independence and China would

support Pakistan should another country intervene.6

Section 3.3 – Indo-Bangladeshi Relations

The Indian government and the Indian populace living in the state of Bengal, which

bordered East Pakistan, showed some empathy for those living in East Pakistan, citing neglect by

the government of Pakistan. Indian state sponsored support for East Pakistan was seen as early as

1969 when the Indian government offered humanitarian aid after a series of cyclones left over

one million dead. (The Pakistani government refused the offer of aid and viewed it as

propaganda.) Less than a week after Pakistani military operations in East Pakistan were

underway the Indian Parliament passed a resolution that pledged India’s sympathy and support

for the people of East Pakistan.7 Pakistani Military operations in East Pakistan led to a refugee

crisis for India as some 10 million people were estimated to have crossed into India to avoid the

conflict.8 The Indian government saw this influx of refugees as a “demographic aggression”

5
Marwah
6
Kyle
7
Kyle
8
La Porte

5
undertaken by Pakistan and led the Indian government to pressure Pakistan to ameliorate the

situation.9 However, after seeing foreign ambivalence to the deteriorating situation in Pakistan,

India would eventually sign the Treaty of Peace and Friendship with the Soviet Union thereby

signaling to Pakistan and the world that a military intervention may be coming.10

Despite international awareness of killings in East Pakistan, countries supporting

Pakistan continued to supply the nation with arms, and in the case of China, increasing arms

sales.11 Wanting to end the conflict and undermine its arch-nemesis in the process, India began

to provide material and training support to guerillas belonging to the Mukti Bahni (Bangladesh’s

Liberation Movement), some of whom were the same East Pakistan soldiers that had been

disarmed and incarcerated earlier. There were some reports of plain clothed Indian military

forces conducting operations with the Mukti Bahni in East Pakistan. The clear Indian support for

the liberation of Bangladesh led to increased hostilities between India and Pakistan as the

guerillas and the West Pakistani forces continued to fight.

Section 4 – Pakistan’s First Strike and its Legality

The first part of this section will describe the nature of Pakistan’s preemptive attack on

India and subsequent sections will evaluate possible justifications for why such an attack met

legal requirements.

Section 4.1 – The Preemptive Attack

Seeing India’s increased involvement (indirectly by providing the Mukti Bahni with

material and training support, and directly through reports of non-uniformed Indian soldiers) in

9
Bull
10
Kapur
11
Marwah

6
East Pakistan, it was clear to Pakistan that there would be no peaceful resolution to the civil war

without liberating Bangladesh. Thus, the Pakistani military decided to undermine India’s

military capability by launching an air force strike on Indian Air Force installations. The strike,

Operation Chengiz Khan was based on the strategy of preemptive neutralization, modeled after

the Israeli Air Force’s strike on enemy installations in Operation Focus during the six-day war.12

Section 4.2 – Preemptive Self-defense

Pakistan’s attack on Indian Air Force installations can be described as preemptive self-

defense. Increased Indian involvement in East Pakistan had made it evident that any continuation

of Pakistani operations in the territory would exacerbate tensions with India and recent Indian

military procurements and diplomatic treaties with countries such as the Soviet Union signaled

Indian preparation for an inevitable conflict. Given the approximately million-man army

amassed by India, almost three times the size of Pakistan’s army, there was no reasonable

method for Pakistan to defend itself in the event of an attack by India. Presented with this

scenario Pakistan had to initiate a strike designed to neutralize Indian installations in order to

make self-defense in the future possible. Thus, iterating backwards any action to make self-

defense possible is also an action of self-defense and therefore Pakistan’s initial operation was

justified.

Justification for the use of force in anticipation of an attack has been upheld as early as

Hugo Grotius who stated it is “lawful to kill him who is preparing to kill.”13 Later theorists and

actors have devised a more nuanced way to approach the issue that delineates conditions

12
Cooper and Ali
13
Grotius

7
regarding when a preemptive strike is justified. This set of conditions can be found in U.S.

Secretary of State Daniel Webster’s correspondences with his British counterpart regarding the

1837 Caroline case. Webster says that in order for a preemptive strike to be legal the strike must

be both “necessary” and “proportional.”14 The Leiber code, adopted after the U.S. Civil War

defines necessity as:

Art. 14. Military necessity, as understood by modern civilized nations, consists in the
necessity of those measures which are indispensable for securing the ends of the war,
and which are lawful according to the modern law and usages of war. (Emphasis added)15

Evaluating Pakistan’s strike on the metrics of necessity and proportionality, it seems that

Pakistan may have some justification. Given the history of Indian and Pakistan having fought

two wars in the prior 22 years, India’s military support of the Mukti Bahni, the escalating

conflict in East Pakistan and India’s military strength, an argument can be made that a

preemptive attack designed to neutralize the India’s military advantage was necessary to avoid

substantial military and civilian casualities. Although one can argue that Indian activities in East

Pakistan did not constitute a full fledged war and therefore Pakistan’s actions were unnecessary

by the Leiber definition because there was no war to end, Pakistan’s actions seem to be within

the spirit of the Leiber definition considering the increased involvement of India in what was

essentially a Pakistani civil war. However, this poses the larger question of what actions are

considered provocative enough to necessitate action. For instance if India signs an agreement

with the Soviet Union agreeing to purchase fighter planes from the Soviet Union does that

destabilize Pakistan and other nations enough to necessitate action through preemptive strike?

There seems to be little to no consensus on what the threshold level of provocation is for an

14
Ackerman
15
Carnahan

8
attack to be warranted.16 The argument for proportionality is harder to make: since the question

“proportional to what?” remains. If the measure of proportionality is the Indian military

capability it allows Pakistan to launch a massive attack whereas if the measure is the support

provided to the Mukti Bahni, Pakistan’s options are more limited. If the measure is Indian

capability, it seems against international norms to suggest that a country can be punished for

building up a defensive military. Operation Chengiz Khan was designed to limit more than

India’s capability to provide support to the Mukti Bahni it was intended to neutralize the IAF.

Therefore, although unlikely, the strike may have been proportional depending on what measure

is used.

However necessity and proportionality may not matter since much has changed in

international law since 1837, namely the creation of the United Nations. Looking to Article 51 of

the United Nations Charter we see that a nation is guaranteed an “inherent right” of “self-defence

if an armed attack occurs.” The language of this Article makes it clear that the UN Charter only

grants a nation the right to self-defense as a reaction rather than a preemptive measure. Applying

this literally would mean that the Pakistani government ought to have waited until the Indian

military actually attacked. Yet if we look at Operation Focus, the operation after which the

Pakistani Air Force modeled its attack, we see that the UN Security Council and General

Assembly both chose to reject proposals to condemn Israel for aggressive actions.17 Although

when evaluated strictly the UN Charter forbids preemptive strikes, the UN’s unwillingness to

16
Ackerman
17
Ackerman

9
punish previous transgressions by other nations such as Israel makes the legality of a preemptive

strike unclear.

Furthermore, the argument that the language in Article 51 was intended to be interpreted

literally can also be debated. Implicit justification for preemptive actions can be seen in the UN

Charter itself. For instance, Article 39 of the Charter says that the Security Council has the

authority to determine if a nation’s actions are a form of aggression or if the actions are threats

to peace. Article 42 then provides the Security Council with the authority to restore international

peace and security through any means necessary, including the use of force.18 These two articles

would seem to suggest that a country could theoretically gain approval from the UN Security

Council for a preemptive strike to maintain peace and security. What these two articles fail to do

is give clear authority for a country to act preemptively without the approval of the Security

Council. Any argument allowing nations to police themselves without UN approval would

necessitate a loose interpretation of Article 51. Once Article 51 is interpreted as allowing for

some preemptive action the question again shifts back to whether the actions were necessary and

proportional.

Section 4.3 – Ongoing War

Considering the ambiguity of the legality of Pakistan’s operation as a preemptive strike, it

may be better for Pakistan to argue that the attack was simply an operation part of a larger

ongoing conflict with India. This argument would have to center less on the escalating hostilities

in East Pakistan, but would be more concerned with the continued territorial disagreement

regarding Jammu and Kashmir. The previous war fought by India and Pakistan over Jammu and

18
Ackerman

10
Kashmir was just six years earlier in 1965. Further, there was no clear solution that arose from

the war, other than an American and Soviet brokered ceasefire.19 Even with the ceasefire in

place, within 34 days Pakistan and India accused each other of a total of more than 1000

infractions of the ceasefire agreement.20 Also, the fact that both parties signed a ceasefire and not

an agreement of surrender essentially means that the war had not officially ended, but rather both

sides were taking a break in active hostilities. Thus, Pakistan’s decision to strike India in

Operation Chengiz Khan can just be seen as a breakdown in the ceasefire and a continuation of

1965 Indo-Pak War.

The justification for Pakistan’s preemptive strike becomes a lot different if we see it as a

part of the 1965 war. Now the strike is no longer a preemptive strike, but is instead a violation of

the 1965 ceasefire. Given the hundreds of ceasefire infractions by both sides from 1965 to 1971,

Pakistan can argue that it was simply defending itself against one of, or a series of Indian

infractions. Such a justification would also be legal under article 51 of the UN Charter since

Pakistan’s actions would be protected as self-defense. The fact that Pakistan did not issue a

declaration of war prior to Operation Chengiz Khan actually bolsters claims that the attack was a

continuation of the previous war. Problems with this perspective arise when examining the

model for Pakistan’s preemptive strike, Israeli Operation Focus, and Indian Prime Minister

Indira Gandhi’s radio address to the nation following the Operation Chengiz Khan. Because

Pakistan modeled its attack on Operation Focus, which has been historically considered a

preemptive attack on Egyptian and Arab forces, it makes it difficult for Pakistan to argue that its

19
Fortna
20
"Asia: A Cease-Fire of Sorts . "

11
attack was not a preemptive strike.21 Similarly, in Indira Gandhi’s radio address to her nation she

stated:

I speak to you at a moment of great peril to our country and our people. Some hours ago,
soon after 5:30 p.m., on the third of December, Pakistan suddenly launched a full-scale
war against us. I have no doubt that it is the united will of our people that this wanton and
unprovoked aggression of Pakistan should be decisively and finally repelled.22

Prime Minister Gandhi’s statement makes it clear that India was not expecting an attack and that

it viewed the strike as preemptive and not a part of the ongoing conflict in Jammu and Kashmir.

Furthermore, since Pakistan never made the argument that the attack was a continuation of the

1965 war, it makes it difficult to argue for that position ex post facto.

Even if we accept the argument that the operation was a part of the ongoing conflict with

India, Pakistan’s position doesn’t become bulletproof. Pakistan’s operation not only violated the

1965 ceasefire, it was more than a minor infraction that could have occurred due to negligence.

Pakistan’s strike was well planned and took place over a series of sorties well into Indian

territory. Historically there have been instances of other nations undertaking similar attacks in

foreign territory. One such instance occurred on June 7, 1981 when the Israeli Air Force

destroyed an Iraqi nuclear reactor nuclear reactor under construction. Israel argued that Iraq

considered itself to be at war with Israel due to three previous wars, and therefore the action was

protected as self-defense under Article 51 of the United Nations Charter.23 However, the UN

Security Council’s resolution 487 unanimously condemned Israel’s attack and found it to be “…

21
Cooper and Ali
22
“The World: India and Pakistan: Over the Edge”
23
Ackerman

12
in clear violation of the Charter of the United Nations and the norms of international conduct.”24

Further, the Israel was asked to appropriately compensate Iraq for the damages. Although

Israel’s attack occurred almost ten years after Pakistan’s strike on India, the UN Security

Council’s view of the Israeli attack as being illegal casts serious doubt as to whether the United

Nations would have accepted Pakistan’s argument that the strike was a part of ongoing hostilities

with India due to previous wars.

Section 4.4 – India Was the Aggressor

Another argument that could justify Pakistan’s attack is that India’s participation in East

Pakistan in support of the Mukti Bahni was an automatic declaration of war. India had been

openly providing the Mukti Bahni guerillas with training and weapons in what, up to that point,

was a civil war. India’s intelligence and resources definitely bolstered the capability of the Mukti

Bahni, allowing them to better fight against the Pakistani military. Some reports even indicated

that the Indian military had been aiding the guerillas inside the borders of East Pakistan and few

reports suggested that the Indian military was actually operating in missions in plain clothes side

by side with the guerilla fighters.25

In India’s defense, it could have argued that East Pakistan was and independent nation-

state so therefore Indian was not required to get Pakistani approval before any Indian activity in

the region in support of East Pakistan. However, India would run into trouble with this defense

since it did not recognize the independence of Bangladesh until after the completion of the 1971

Indo-Pak War. A second possible defense on the behalf of India is that Pakistan had initiated

24
UN Security Council Resolution 487
25
Marwah

13
aggression by creating a situation that burdened India with what would become 10 million

refugees. As stated in section 3.3, India viewed the refugees as a form of “demographic

aggression” by Pakistan. Despite this alleged aggression, India continued accepting refugees into

its borders and any impact due to the demographic aggression was largely economic in nature.

Thus, retaliating by providing military and intelligence support does not seem to be the most

effective way to curtail Pakistani “demographic aggression.” Instead India’s aid to the Mukti

Bahni may have added to the number of refugees by preventing a clear Pakistani military victory

in East Pakistan. Also, it is very unclear as to what constitutes “demographic aggression.” The

“aggression” aspect of the term would suggest that Pakistan intended to place a burden on India

via the refugees. While India may have been burdened by influx of Eastern Pakistanis crossing

into its borders, it seems haphazard to suggest that any demographic transition is automatically

an aggressive action. Given these two possible justifications for India’s involvement in East

Pakistan, it would be difficult to argue that India was not violating Pakistani sovereignty or

taking an active role against Pakistan. Thus, the question that remains is whether India’s

involvement in East Pakistan is enough to justify launching an attack inside the Indian border.

One way to evaluate the legality of retaliating against a country interfering in a civil

conflict is by looking at historical precedence. For instance during the US Civil War British

ships attempted to provide the Confederacy with aid by violating the Union instituted blockade

of Southern ports. Although the Union troops did confiscate any materials brought by British

ships they did not hold any British citizens in captivity for violating the blockade.26 Similarly,

26
McPherson

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due to the fact that reports had indicated non-uniformed Indian soldiers supporting the Mukti

Bahni, holding Indian troops, much less attacking Indian inside its borders would have required

Pakistan to produce evidence showing that soldiers were acting on behalf of the Indian military

and were not opposing Pakistan out of their own volition. There seems to be little to no historical

evidence of Pakistan appealing to either India or the United Nations to clarify whether Indian

troops had actually been given orders to fight alongside the guerilla fighters inside East Pakistan

borders or even a correspondence asking India to stop its military activities in East Pakistan.

Therefore, it is questionable if Pakistan took necessary steps to avoid a conflict and if the

response by Pakistan was in proportion to India’s support of guerilla forces.

Section 6 – Conclusion

A complex series of events led to Pakistan’s decision to carry out Operation Chengiz

Khan and the event would eventually lead to the outbreak of the Indo-Pak war of 1976. The war

ended with a Pakistani surrender and the independence of Bangladesh almost two weeks later but

at the expense of scores of lives.27 Some of these events include the separation of India and

Pakistan when they were granted independence from Britain, two wars fought over the territories

of Jammu and Kashmir and the ongoing violence carried out by the Pakistani military in East

Pakistan in an effort to retain military control over the drafting of the nation’s constitution.

Although the United Nations Security Council Resolutions 303 and 307 withhold judgment

regarding the legality of Operation Chengiz Khan, and instead asked for a quick and speedy end

to the war, the ramifications of whether such a strike is legal would have had, and still have,

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Instruments of Surrender of Pakistani Forces in Dacca

15
large implications today. This is seen not only with examples of Israel’s bombing of an Iraqi

nuclear reactor in 1982 but also with the United States’ decision to go to war with Iraq in 2002.

Given the important ramifications, Pakistan’s defense of the preemptive strike can hinge

on three arguments; the preemptive strike was an act of preventative self-defense, the attack was

a part of a larger ongoing war, and India had already aggressed against Pakistan by supporting

the Mukti Bahni in East Pakistan. None of these justifications are foolproof enough to conclude

that the attack was justified. The issue of preventative self-defense ultimately comes down to

Articles 39, 41, and 51 of the UN Charter. Articles 39 and 41 allow for the preemptive strike

with UN approval, which Pakistan didn’t obtain, and depending on how Article 51 is interpreted

it may rule out the legality of such an attack. Furthermore, even if the attack was legal it is

questionable whether Pakistan’s attack met the requirements of being necessary and

proportional. Similarly, the argument that the attack was a part of an ongoing war is not

convincing since the attack was modeled on another preemptive attack, which by default

acknowledges that Pakistan saw its actions as being preemptive. Furthermore, the Indian

government clearly considered the attack to be a new conflict distinct from the previous Indo-

Pak war. Finally, the argument that India aggressed against Pakistan remains standing. India

under the shaky pretext Pakistani “demographic aggression” began supporting the guerilla forces

in East Pakistan as a means of ending Pakistan’s military involvement in the area. Although, this

support is clearly an aggression against Pakistan, it is not a declaration of war, and an attack on

multiple IAF installations does not seem to be a necessary mean of resolving the situation. Thus,

it Pakistan’s preemptive strike in Operation Chengiz Khan was likely illegal by customary

international norms and law.

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