Don’t Internationalise Terror, Neutralise It!

The following day, Mr. Kapil Sibal, Senior Advocate and Rajya Sabha MP made a statement calling upon the Indian Government to proscribe Pakistan as a terrorist state and those responsible for the Pahalgam massacre to be prosecuted in the International Criminal Court (ICC). His call for prosecution before the International Criminal Court (ICC) must be evaluated dispassionately. It raises fundamental concerns of strategic prudence, legal feasibility, and long-term national interest.

The ICC and Its Jurisdictional Straitjacket

Pakistan has historically and systematically harboured and enabled terrorist infrastructure, as acknowledged by multiple international agencies, including FATF and UN-designated sanctions committees. Yet, proposals to prosecute Pakistan before the International Criminal Court (ICC) must be assessed through the lens of law, strategy, and precedent.

The ICC, established by the Rome Statute of 1998 which came into force on July 1, 2002, exercises jurisdiction over only four core crimes:

1. Genocide,
2. Crimes against humanity,
3. War crimes, and
4. The crime of aggression (under a narrow jurisdictional regime).

Terrorism is not independently recognised as a crime under the Rome Statute. Despite strong global pressure, especially post-9/11, repeated efforts to include terrorism have failed due to definitional disagreements and geopolitical deadlock. To bring the Pahalgam attack under the ICC’s purview, one would need to reclassify it as a “crime against humanity”, which would require proving it was part of a widespread or systematic attack directed against civilians — a high and unprecedented threshold, especially for acts involving non-state actors operating from non-State Parties.

The Court only deals with crimes committed after 2002 and within the territory or by nationals of States Parties, unless the UN Security Council (UNSC) refers the matter. Neither India nor Pakistan is a party to the Rome Statute. As a result, the only theoretical pathway for the ICC to assume jurisdiction would be through a referral by the UNSC. However, this is highly improbable. Few permanent members of the UNSC with veto power and historically aligned with Pakistan on regional issues, might seek to block or dilute any such referral.

India’s Strategic Posture: No Internationalisation

India’s longstanding foreign policy doctrine has firmly opposed the internationalisation of its internal and bilateral disputes, particularly on matters related to Kashmir and cross-border terrorism. This principle was codified in the Simla Agreement of 1972, which commits both India and Pakistan to resolve issues bilaterally. Since then, India has consistently reiterated this position across global forums including the United Nations, G20, Non-Aligned Movement (NAM), and the Shanghai Cooperation Organisation (SCO).

Even after severe provocations — including the Kargil War (1999), the 2001 Indian Parliament attack, 26/11 Mumbai attacks, Pathankot (2016), Uri (2016), Pulwama (2019), and repeated ceasefire violations — India has never sought legal redress through international courts or tribunals. This strategic restraint reflects a deliberate effort to preserve sovereign control over national security narratives. Referring Pakistan to the International Criminal Court (ICC) would break with this carefully crafted and persistent position and set an unsettling precedent, potentially opening the door for third-party mediation — something New Delhi has strenuously opposed for over five decades.

Moreover, any Indian recourse to the ICC or similar bodies risks backfiring diplomatically. Pakistan could exploit such platforms to level false counter-allegations related to civil liberties, and alleged human rights violations – as it has done in the past to obfuscate its own role in terrorism. Even if such claims are baseless, their presence in global legal discourse could internationalise India's internal affairs and weaken its diplomatic leverage. Thus, strategic prudence demands that India continue to resist legal internationalisation and instead pursue bilateral, covert, and multilateral pressure mechanisms that it has mastered and applied effectively over time.

The Illusion of International Legalism

There is a persistent but misplaced faith that international legal institutions like the International Criminal Court (ICC) can deliver swift justice and moral clarity in the face of atrocities like the Pahalgam massacre. In reality, the ICC’s track record is slow, selective, and geopolitically constrained. Investigations and trials often take 5 to 15 years, and the Court lacks its own enforcement mechanisms. It must rely on state cooperation—often absent in politically sensitive cases—and on UN Security Council referrals, which are routinely blocked or manipulated.

Even high-profile indictments, such as that of Sudan’s former President Omar al-Bashir, remained unenforced for years due to geopolitical shielding. Meanwhile, the ICC has faced sustained criticism for disproportionately targeting African nations, while steering clear of powerful non-member states such as the United States, China, and Russia, all of whom reject the Court’s jurisdiction. For a rising power like India—not a party to the Rome Statute—legitimising the ICC through even indirect engagement carries risk. Once India accepts its jurisdiction in one context, it opens the door to legal scrutiny over complex internal matters, including counterterrorism operations in Kashmir.

Stronger and Smarter Alternatives Exist

Rather than submitting itself to a politicised and legally uncertain forum, India should continue to rely on tested tools of strategic coercion and international law—many of which it has successfully deployed before.

First, under the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), India can build a robust legal case establishing Pakistan’s role in financing, harbouring, and directing cross-border terrorism. India has previously circulated similar dossiers post-26/11, Pulwama, and Uri, which contributed to global condemnation and diplomatic isolation of Pakistan.

Second, India can leverage binding United Nations Security Council Resolutions, particularly 1373 (2001) and 1566 (2004). These resolutions require states to criminalise terrorist financing, freeze assets, and deny sanctuary to terrorists—providing a legal basis for India to pressure Pakistan multilaterally without ceding jurisdiction to international courts.

Third, economic and financial pressure remains a potent tool. India played a key role in keeping Pakistan on the FATF Grey List, severely restricting its access to global financial markets. India can build updated dossiers linking Pakistan to recent attacks like Pahalgam and pursue targeted financial sanctions through the FATF and affiliated institutions.

Finally, bilateral and coercive options have proven effective in the past. India’s surgical strikes in 2016, the Balakot airstrikes in 2019, and the withdrawal of Most Favoured Nation (MFN) status imposed tangible costs on Pakistan’s military and economic apparatus. These actions were swift, sovereign, and calibrated—free from the procedural paralysis that plagues the ICC.

Therefore, India does not need The Hague to pursue justice. It needs resolve, precision, and global alliances, all grounded in its own legal and diplomatic frameworks. The real test is not in proving a legal point—but in making Pakistan pay a strategic cost for every act of terror, including the one in Pahalgam.

How has India responded so far?

India has launched a multi-pronged punitive and strategic response holding Pakistan directly responsible for cross-border terrorism. Most significantly, India has formally kept in abeyance – the Indus Waters Treaty citing Pakistan’s continued use of terror as state policy. This signals a willingness to recast bilateral treaties through the lens of national security, not technical cooperation.

On the diplomatic front, visa services to Pakistani nationals have been frozen, senior Pakistani diplomats have been expelled, and overland trade via the Attari–Wagah route stands halted, tightening the economic squeeze. India has also appealed to the IMF to reassess loan disbursals to Pakistan, citing concerns over diversion of international funds toward militant infrastructure.

On the military front, Prime Minister Modi has granted operational freedom to the armed forces, and concurrently, troop deployments and intelligence operations along the LoC have been intensified. Strategically, India has begun briefing key international partners—including the U.S.—to build diplomatic consensus and isolate Pakistan in multilateral fora.

These responses reflect a calibrated strategy: decouple, deter, and diplomatically isolate—without falling into the trap of theatrical but legally untenable moves like invoking the ICC.

Conclusion: Justice Demands Strategy, Not Symbolism

Justice for Pahalgam is non-negotiable. But it must be pursued with strategic precision, not legal theatre. Referring Pakistan to the International Criminal Court may feel satisfying in the short term, but it is legally implausible, diplomatically risky, and strategically self-defeating. The ICC is not the right forum — not because Pakistan does not deserve universal censure, but because India must never trade its right to protect its sovereignty for hollow legal and international symbolism.

India’s real power lies not in pleas to politicised global institutions, but in its ability to act — through covert strikes, economic penalties, multilateral pressure, and diplomatic isolation. These are not abstract concepts rather proven instruments of statecraft that have consistently weakened Pakistan’s leverage and exposed its duplicity. They will continue to serve us provided we stay the course and don’t fall into the trap of internationalising our national interest.