Steps in the Formation of Treaties

[Note: This article is primarily meant for students of International Law studying the subject at the graduate or post-graduate level]

Introductory Note

According to Martin Dixon and Robert McCorquodale , treaties are evidence of the express consent of states to regulate their interests according to international law. It is important to remember that treaties are the most important source of international law and are increasingly used to codify and develop international law. Since international legal relationship between States and international organizations came to be increasingly governed by written agreements, a need was felt for developing a set of general rules to govern the obligations of the parties to treaties. In 1966, the International law Commission adopted its final report on the law of treaties and in a Conference attended by representatives of more than 100 states, held in Vienna, Austria in two sessions, in 1968 and 1969, the Vienna Convention on the Law of Treaties came to be adopted. The Convention entered into force on January 27, 1980. Another Convention was held in 1986 at Vienna on the Law of Treaties between States and International Organizations or between International Organizations. The 1969 Convention deals with the formation of treaties, entry into force, reservations, and procedure relating to invalidity, termination, withdrawal, and suspension of operation of treaties as well as their interpretation.

Definition and Meaning of the term ‘Treaty’

(1) Oppenheim : International treaties are agreements, of a contractual character, between States, or organizations of States, creating legal rights and obligations between the parties.

(2) McNair : The term treaty means a written agreement by which two or more states or international organizations create or intend to create a relation between themselves operating within the sphere of international law.

Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969 defines the term treaty: Treaty means an international agreement concluded between States in a written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

The term ‘treaty’ is used in a generic sense rather than a reference to a particular form of international agreement. The term treaty covers convention, agreement, arrangement, protocol, exchange of notes, exchange of letters, etc. International law makes no distinction between agreements referred to as treaties and other types of agreements. The name or designation given to an agreement is in itself unimportant and of no legal consequence.

There is no formal requirement in international law for a treaty to come into existence Treaties usually are in written form and the Vienna Convention on the Law of Treaties applies only to those treaties which are in written form. However, it cannot be categorically stated that oral agreements have no legal validity.

Unilateral statements-whether binding: A question that has not infrequently arisen is whether the unilateral statements or pronouncements of a State create any legally binding international obligations. The Legal Status of Eastern Greenland is a case in point. In 1919, the Danish government through its representative in Norway informed the Norwegian government that they would not raise any objection to Norway’s claim over Spitzbergen at the Paris Peace Conference if Norway refrained from challenging Danish claims of sovereignty over all Greenland. M. Ihlen, the Norwegian foreign minister, informed his Danish counterpart that Norway would not create any difficulties in respect of the Danish claim of sovereignty over Eastern Greenland. When the matter came up before the PCIJ, Denmark argued that Norway by the “Ihlen Declaration” had recognized Danish sovereignty over Eastern Greenland. The Court denied that the “Ihlen Declaration” constituted recognition of Danish sovereignty. However, it held that Norway had incurred a legally binding obligation to refrain from contesting Danish sovereignty over Eastern Greenland. The Court did not characterize the “Ihlen Declaration” as an oral agreement, nor did not delineate the circumstances, if any, when a unilateral statement could be binding. The Court in this case appeared to regard the Norwegian statement as being given in return for a Danish commitment not to oppose a Norwegian claim to Spitzbergen.

The agreement entered into between the parties must be governed by international law. Agreements which are subject to some national system of law will not constitute treaties. Where the parties do not possess international legal personality, the agreements entered into by and between such parties will not be governed by international law.

Formation of treaties

No specific form or procedure has been prescribed in international law for the conclusion of a treaty. The parties negotiating a treaty are free to agree upon a language or languages in which the treaty is to be expressed. Though a precise procedure or standard does not exist, following steps are generally adopted in concluding a treaty.

1) Accrediting of Persons by the Contracting States

2) Negotiation

3) Adoption of the text

4) Consent of the States

5) Entry into force

Accrediting of Persons by Contracting States

Normally, the treaty-making capacity of States is exercised by Heads of State or by their governments. However, today, this treaty-making power is rarely exercised by them in person, and is done through representatives. If they appoint a representative for the purpose of negotiating, adopting or authenticating the text of a treaty, or for expressing the consent of a State to be bound by a treaty, he is provided with a formal instrument called Full Powers. Art. 2(1)(c) of the Vienna Convention defines Full Powers: ‘full powers’ means a document emanating from the competent authority of a State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of a State to be bound by a treaty, or for accomplishing any other act with respect to a treaty.

Full Powers is not necessary if the treaty is concluded by the Heads of States or Governments, Minister of Foreign Affairs and heads of diplomatic mission.

Negotiation

The stage of negotiation is the most crucial stage in the formation of a treaty where the participating States put forth proposals for discussions. After detailed deliberations, the proposals are harmonized and the parties arrive at a tentative agreement.

Adoption of the Text

After negotiations, the form and content is settled by drawing up a text setting out its provisions. The normal rule is that consent of all the participating states is required for adopting the text of the treaty. The principle of unanimity in preparing the text of the treaty in the case of international conferences is unrealistic and is not normally the rule. Article 9 (2) of the Vienna Convention provides that adoption of the text of a treaty at an international conference takes place by two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule.

Consent of the States

The treaties may bind states only when they have given their consent. Some of the ways in which a State may express its consent to be bound by a treaty are by means of signature, exchange of instruments, ratification or accession.

Authentication

In many cases authentication is not seen as a distinct step as the act of signature serves as authenticating and an expression of willingness to be bound by the treaty. However, in cases where the unsigned text of a treaty is incorporated in the final act of a conference, or where the treaty adopted in an international organization is authenticated by the president of the organization, authentication may be a separate step.

Signature

The act of affixing the signature by a State’s representative may express the consent of the State to be bound by the treaty. This can happen only where the negotiating or participating States have agreed that signature should have that effect, by providing in the treaty itself or where it appears from the full powers that a State had intended to give that effect to the signature of its representative or it was so expressed during negotiations. Sometimes, a representative’s signature may be qualified, that is to say it may be affixed ad referendum, i.e. subject to the State’s confirmation. In such a case, the State’s subsequent confirmation constitutes signature of the treaty. In certain cases, where the signature may be subject to ratification, a State will not be bound by the treaty till ratification is complete.

Exchange of Instruments

Article 13 of the Vienna Convention provides the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when:

(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the exchange of instruments should have that effect.

Ratification

Article 2(1) (b) of the Vienna Convention on the Law of Treaties 1969 defines ratification as ‘the international act so named whereby a States establishes on the international plane its consent to be bound by a treaty’.

Ratification is mainly required for the States to re-examine the over-all effect of the treaties on their national interests. The other reason for having the step of ratification is to give the States sufficient time to enact legislation to give effect to the obligations which they would assume under the treaty.

Article 14 of the Vienna Convention provides that the consent of a State to be bound by a treaty is expressed by ratification when:

(a) the treaty provides for such consent to be expressed by means of ratification;

(b) it is otherwise established that the negotiating States were required that ratification should be required;

(c) the State’s representative has signed the treaty subject to ratification; or

(d) the intention of the State to sign the treaty subject to ratification appears from the full powers of its representative or was expressed during the negotiation.

Form and Mode of Ratification

International law does not prescribe any form of ratification. According to Oppenheim, ratification normally takes the form of a document signed by the Heads of the States or their foreign ministers. It is usual to draft as many documents as there as parties to the treaty, and to exchange these copies between the parties.

Entry into Force

A treaty enters into force in accordance with its provisions. Article 24 of the Vienna Convention provides that a treaty enters into force in such manner and upon such date as it may provide or as the states negotiating the treaty may agree. If the treaty is silent, it enters into force as soon as consent to be bound by the treaty has been established for all the negotiating states. Bilateral treaty enters into force when States exchange documents of ratification. Where ratification is not required, the treaty comes into force after signature and exchange or deposit of signed copies. Multilateral treaties enter into force from date when prescribed number of ratifications or accessions has been made.

References:
1. Martin Dixon and Robert McCorquodale, Cases and Materials on International Law (1995) p 48
2. Oppenheim, International Law Vol. 1 (8th Edition) p 877
3. McNair, Law of Treaties p 4

Krittika Biswas Case – Scope of Diplomatic Immunity

Krittika Biswas, the eighteen year old daughter of Debashis Biswas, a Vice-Consul serving at the Indian Consulate General in Manhattan was falsely accused of sending obscene emails to her school teacher and subsequently wrongfully arrested and kept in custody for more than 24 hours in February 2011. She was also sent for more than a month to a special suspension program by her school despite being cleared by investigators. On 6th May 2011 Ms Biswas filed a notice of claim stating that she was suing New York City for $ 1.5 million. The girl is reported to have claimed diplomatic immunity. However, a State Department spokesman, Mark Toner said that immunity did not extend to family members of diplomats. "As a family member of consular officer, rather, she does not enjoy immunity from jurisdiction or inviolability," he told reporters.

Indian Consul General in New York stated that the US State Department was wrong in its reading of the Vienna Convention on Consular Relations and asserted that diplomatic immunity is extended to family members of consular officers.

Insisting that Toner had got it wrong, Dayal pointed to article 53 (2) of the Vienna Convention on Consular Relations, 1963, which says "Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention..."

The State Department, however, said that it was sticking by Toner's earlier remarks.

This incident involving the Consul’s daughter has resulted in a spat between both the countries. This paper seeks to examine the role of consuls and the nature and extent of immunity available to Foreign Service officers posted in Indian missions abroad.

Consuls – Roles and Functions

There is an assumption that diplomats and consuls hold the same office. Although diplomats and consuls work hand in hand to create and develop foreign relations between States, they are different; not only in the function that they perform, but also in the immunities and privileges that are afforded to them.

Their primary duty is to protect economic interests and any trade relations between the sending and receiving State. Other consular duties include issuing passports, the registration of birth and the solemnising of marriages, executing notarial acts and exercising disciplinary jurisdiction over the crews of vessels belonging to the sending State. The protection of the sending State’s nationals who find themselves in difficulty in the receiving State is an important function and failure of the receiving State to allow right of access to and communication with such nationals may result in action being initiated before the International Court of Justice (ICJ), as did Germany and Paraguay against the US. McClanahan states three provisions with reference to communication and contact with nationals of the sending State. Firstly, that consuls shall be free to communicate and have access to nationals of the sending State and vice versa; secondly, that consuls are to be informed swiftly by the authorities of the receiving State regarding the arrest and detention of any of their nationals, and the nationals shall be informed of such rights; and thirdly, that consuls have the right to visit the nationals and arrange for their legal representation.

Immunities

The rights, privileges and immunities of consular officers

Article 53 of the Convention provides –

(1) Every member of the consular post shall enjoy the privileges and immunities provided in the present Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post.

(2) Members of the family of a member of the consular post forming part of his household and members of his private staff shall receive the privileges and immunities provided in the present Convention from the date from which he enjoys privileges and immunities in accordance with paragraph 1 of this article or from the date of their entry into the territory of the receiving State or from the date of their becoming a member of such family or private staff, whichever is the latest.

Article 41 of the Convention provides –

(1) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

(2) Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

(3) If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay.

The definition of “grave crime” depends on the statute obtaining in the receiving State and its interpretation by its judiciary. By no stretch of imagination can sending obscene or threatening emails by a student to his or her teacher be construed as a grave crime.

Consular immunity offers protections similar to diplomatic immunity, but the protection is not absolute and as extensive, given the functional differences between consular and diplomatic officers. For example, consular officers are not accorded absolute immunity from a host country’s criminal jurisdiction (they may be tried for certain local crimes upon action by a local court) and are immune from local jurisdiction only in cases directly relating to consular functions.

In general, consular privileges and immunities are dramatically more limited in scope than those afford¬ed to diplomats, particularly with respect to immunity from the jurisdiction of the receiving state. Consular officers and other employees at consulates have criminal, civil, and administrative immunity only with respect to acts performed in the exercise of consular functions. With limited exception for serious crimes, consular officers cannot be arrested or detained pending trial. Members of the consular staff, however, have no such protection.

The family members of consular employees have es¬sentially no immunity from the jurisdiction of the host state as they do not perform official acts. The determination of whether something qualifies as an “official act” or “consular function” is generally determined by the courts of the receiving state.

In order to appreciate the scope of immunity available to family members of a consular officer, it is relevant to make reference to Article 37 of Vienna Convention on Diplomatic Relations, 1961 which reads as follows:

The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.

This article provides for a near total immunity to both the diplomat and his family from arrest and detention in any form, inviolability of his person, residence and premises, immunity from criminal jurisdiction, exemption from taxation and social security. This level of immunity is not available to a consular officer and his family.

Article 42 of the 1963 Convention provides for notification of arrest, detention or prosecution. The article stipulates that in the event of the arrest or detention, pending trial, of a member of the consular staff, or of criminal proceedings being instituted against him, the receiving State shall promptly notify the head of the consular post. Should the latter be himself the object of any such measure, the receiving State shall notify the sending State through the diplomatic channel.

In his essay, “Rethinking Diplomatic Immunity: A Review of Remedial Approaches to Address the Abuses of Diplomatic Privileges and Immunities”, Mitchell S. Ross says “The executive branch possesses exclusive jurisdiction to determine whether an alien in the United States has diplomatic immunity. President Jimmy Carter delegated this function to the Secretary of State in 1978. The Secretary of State's power to confer or deny immunity is strictly a political determination and is not subject to judicial review.”

In the case of Krittika Biswas, assuming without admitting that the family member of a Consular officer was not entitled to immunity from jurisdiction and from arrest or detention, the local authorities in the US, particularly the New York Police Department ought to have notified the Indian Consulate about the arrest of the girl and permitted consular access as provided in the said Convention. It must be noted that this case is not the first instance of the US being in violation of the letter and spirit of the Vienna Convention on Consular Relations, 1963. The US has been guilty of serious breaches in the past. In 1996, Paraguay came to know that its national Angel Francisco Breard was imprisoned in the United States and had been sentenced to death after being convicted of culpable homicide. However, the national was not given consular access. Paraguay initiated proceedings against the US before the International Court of Justice for violations of the Vienna Convention on Consular Relations, 1963. “The Court unanimously indicates the following provisional measures:

The United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings, and should inform the Court of all the measures which it has taken in implementation of this Order;

II. Decides, that, until the Court has given its final decision, it shall remain seised of the matters which form the subject-matter of this Order.”

In the case of LaGrand Brothers, too, the accused were denied consular assistance under the Vienna Convention. The facts of the case are as under:

On January 7, 1982, brothers Karl and Walter Bernhard LaGrand bungled an armed bank robbery in Marana, Arizona, United States, killing a man and severely injuring a woman in the process. They were subsequently charged and convicted of murder and sentenced to death. The LaGrands were German nationals, having been born in Germany. While they had both lived in the United States since they were four and five, respectively, neither had acquired U.S. citizenship. As foreigners the LaGrands should have been informed of their right to consular assistance, under the Vienna Convention, from their state of nationality, Germany. However the United States authorities (the State of Arizona) failed to do this even after they became aware that the LaGrands were German nationals. The LaGrand brothers later contacted the German consulate of their own accord, having learned of their right to consular assistance. They appealed their sentences and convictions on the grounds that they were not informed of their right to consular assistance, and that with consular assistance they might have been able to mount a better defense. The federal courts rejected their argument on grounds of procedural default, which provides that issues cannot be raised in federal court appeals unless they have first been raised in state courts.

Diplomatic efforts, including pleas by German ambassador Jürgen Chrobog and German Member of Parliament Claudia Roth, and the recommendation of Arizona's clemency board, failed to sway Arizona Governor Jane Dee Hull, who insisted that the executions be carried out. Karl LaGrand was subsequently executed by the state of Arizona on February 24, 1999, by lethal injection. Walter LaGrand was then executed March 3, 1999, by lethal gas.

Germany then initiated legal action in the International Court of Justice against the United States regarding Walter LaGrand. Hours before Walter LaGrand was due to be executed, Germany applied for the Court to grant a provisional court order, requiring the United States to delay the execution of Walter LaGrand, which the court granted.

Germany then initiated action in the U.S. Supreme Court for enforcement of the provisional order. In its judgment, the U.S. Supreme Court held that it lacked jurisdiction with respect to Germany's complaint against Arizona due to the eleventh amendment of the U.S. constitution, which prohibits federal courts from hearing lawsuits of foreign states against a U.S. state. With respect to Germany's case against the United States, it held that the doctrine of procedural default was not incompatible with the Vienna Convention, and that even if procedural default did conflict with the Vienna Convention it had been overruled by later federal law—the Antiterrorism and Effective Death Penalty Act of 1996, which explicitly legislated the doctrine of procedural default.

The U.S. Solicitor General sent a letter to the Supreme Court, as part of these proceedings, arguing that provisional measures of the International Court of Justice are not legally binding. The United States Department of State also conveyed the ICJ's provisional measure to the Governor of Arizona without comment. The Arizona clemency board recommended a stay to the governor, on the basis of the pending ICJ case; but the governor of Arizona ignored the recommendation and Walter LaGrand was executed on March 3, 1999.

Germany then modified its complaint in the case before the ICJ, alleging furthermore that the U.S. violated international law by failing to implement the provisional measures. In opposition to the German submissions, the United States argued that the Vienna Convention did not grant rights to individuals, only to states; that the convention was meant to be exercised subject to the laws of each state party, which in the case of the United States meant subject to the doctrine of procedural default; and that Germany was seeking to turn the ICJ into an international court of criminal appeal.

On June 27, 2001, the ICJ, rejecting all of the United States' arguments, ruled in favor of Germany. The ICJ held that the Vienna Convention on Consular Relations of 24 April 1963 (Vienna Convention) granted rights to individuals on the basis of its plain meaning, and that domestic laws could not limit the rights of the accused under the convention, but only specify the means by which those rights were to be exercised. The ICJ also found that its own provisional measures were legally binding. The court also found that the United States violated the Vienna Convention through its application of procedural default. The court was at pains to point out that it was not passing judgment on the doctrine itself, but only its application to cases involving the Vienna Convention.

Given its past track record, it is not surprising that Krittika’s rights as foreigner and that of a family member of an Indian envoy were denied by the US. However, the critical aspect is whether the teenager was entitled to immunity. It must be said that though the US authorities, particularly the NYPD were responsible for mishandling the case by their acts of wrongful arrest and detention, in view of the foregoing analysis on diplomatic and consular immunity, immunity may not have been available to Krittika Biswas from arrest and detention.

Lastly, what does India need to do? Indo-US relations are quite strong and bilateral ties cannot become hostage to unfortunate incidents like that of Ms Biswas and frisking of Indian dignitaries at US airports. The official Indian reaction to Ms Biswas’ case has by and large been circumspect, while the Indian media has been less than mature in its coverage of the incident. Having said that it is necessary for India to convey to the US, its displeasure and the fact that there is a sense of outrage in India in the way this case was handled by the US authorities. If the US Administration is not sensitive to Indian concerns, then India may be forced to adopt a similarly narrowed interpretation of the Vienna Convention while dealing with its consular officers stationed in India.

Sources:

[1] The Supreme Court of Hong Kong in the case of Juan Ysmael v S.S. Tasikmalaja ILR 1952 Case No. 94 stated that some of the functions of a consul are similar to those of diplomats, but these functions do not transform a consul into a diplomat.

[2] http://en.wikipedia.org/wiki/LaGrand_case

Indian Special Forces - Capabilities and Shortcomings

Does India have the ability to launch operations similar to Operation Neptune’s Spear? What are the requirements for undertaking such missions?

The US operation in Abbottabad has raised the question whether India can carry out similar strikes on Pakistani soil or any where around the globe against fugitives wanted in India on terror charges.

India, like any other country does have its own Special Forces – the Army has Para Commandos, which are elite airborne units and the Ghatak Platoons which are attached to each infantry battalion of the Army, the Navy has the Marine Commandos (MARCOS for short), and the Air Force the Garud. Besides, India has the National Security Guards (NSG), a Special Response Unit which is primarily tasked with counter terrorism activities, the Special Frontier Force whose one squadron is responsible for counter-terrorism duties and the various state police have their own Special Task Force for special operations, like for instance Jammu and Kashmir Police has the Special Operations Group to tackle terrorism.

Opinion seems to be divided if we really have the intelligence and military capabilities to emulate the operation carried out by the US Navy SEALs in Abbottabad on May 2, 2011 to neutralize Osam bin Laden.

In the backdrop of Osama bin Laden’s killing in Abbottabad, India’s Air Chief Marshal P.V. Naik and Indian Army chief General V.K. Singh declared their forces have the capability and competence to carry out a commando operation outside the country to target terrorists.

‘There is no doubt about it. The army, navy and air force are paid to be ready. None of the services chiefs is going to say he does not have the capability,’ says retired Commodore C. Uday Bhaskar, director of naval think-tank National Maritime Foundation, when asked about the services chiefs’ comments.

Brigadier Gurmeet Kanwal, director of army think-tank Centre for Land Warfare Studies, concurs with Uday Bhaskar. ‘We virtually have the same capability (as the US Navy SEALs),’ Kanwal told IANS, pointing out that the army itself has over half-a-dozen special forces battalions trained to carry out such attacks on strategic targets. Brigadier Kanwal, however added that India should look at energising its external intelligence agency Research and Analysis Wing (RAW) for getting its wanted, rather than use its armed forces.

‘To be very honest, it is not possible to disclose if we have these capabilities or not. But, yes, we have the joint strategic capability for any special task that the government assigns to the armed forces, not necessarily in the neighbourhood, but anywhere around the globe,’ Air Marshal P.K. Barbora, former Indian Air Force (IAF) vice chief, told IANS.

‘But the decision on such operations is not taken by the uniformed personnel. It is taken by the political leadership after receiving all inputs including the implications and fall- out, and after planning for all exigencies, be it a nuclear conflict,’ Barbora said.

The Contrary View

According to Lt. General R. K. Nanavatty, who has been involved in planning aspects of Indian Special Forces and has been studying the subject for years, India does not have the capabilities of executing an operation similar to Operation Neptune’s Spear. Nanavatty said “We are not capable for a variety of reasons. Political understanding of special operations is very important then only you can commit money, time and technology for nurturing such a force. “Special Operations today are controlled by men who do not understand them”.

Lt Gen P C Katoch, a former SF officer and a leading expert on Special Operations, said major operations by Indian troops have at various stages demonstrated what was wrong with them. “There are problems of intelligence, logistics etc. Our SF forces are doing what conventional troops can do and there is an overall lack of political willpower to nurture the capability with long term vision,” said Katoch, who led an SF unit in Sri Lanka with the Indian Peace Keeping Force in the 80s and has also been involved in planning of Indian SFs. “Our men are ready, but minus intelligence, support etc,” Katoch pointed out.

General Katoch pointed out that many of the mistakes of 1988 when Indian troops carried out an unsuccessful operation to capture the top leadership of the LTTE including its supremo Prabhakaran from Jaffna University were there to be seen in November 2008 in Mumbai when NSG commandos were deployed to take on the Pakistani terrorists. A decade back in 1999, a team of NSG commandos tailed hijacked IC814 aircraft to the Gulf region but returned. They couldn’t also think of carrying out a surgical operation in Kandahar for a host of reasons including lack of airlift and political will.

According to Colonel Anil Athale, the Indian State does not have the will to carry out such operations and hence has not created the wherewithal to carry out strikes like Operation Neptune’s Spear.

The Essentials

The two essential pre-requisites for conducting a successful special operation are availability of hard intelligence and sophisticated technical support. To elaborate, the planners and executors of this type of operation must be fed with concrete real time intelligence about the mission or objective to be accomplished. For instance, when the Israelis executed the raid at Entebbe in 1976, the commandos and the senior military commanders sitting in Tel Aviv were fully aware of the location of the hostages, the number of terrorists, the layout of the terminal building, etc. The commandos knew where their targets were, where precisely the Ugandan troops were stationed and how reinforcements, if any, were to be neutralized. There were no loose ends. In the absence of human intelligence (HUMINT), it may be impossible to carry out a successful operation. America's Central Intelligence Agency maintained a safe house near Abbottabad town for a small team of spies who conducted extensive surveillance on slain Al Qaeda chief Osama bin Laden's compound for months before President Barack Obama signed an order to kill the most wanted terrorist on April 29. It is estimated that the US has had about 3000 operatives active in Pakistan at the time of the Abbottabad raid.

The second essential is the availability of technological support such as satellite imagery of the target area, stealth technology for the purpose of infiltrating and exfiltrating of the operatives undetected and secure communications. India’s Imagery Intelligence (IMINT) capabilities are quite limited. India, in April 2009 launched its first dedicated radar reconnaissance satellite Radar Imaging Satellite 2 (or RISAT-2). The radar has an Israeli-built primary sensor which allows RISAT-2 to return images at any time of day, and in any weather conditions. India also has Cartosat-2 launched in 2007, which according to some experts may be used for military purpose. India needs to augment its space-based intelligence gathering capabilities.

Another important essential for carrying out special operations is political will. India lacks the political will to carry out any type of surgical strikes against non-state as well as state actors, notwithstanding the fact India has repeatedly been subject to terror strikes sponsored by Pakistan. In 1999, when IC 814 was hijacked and flown to Kandahar, Indian commandos merely tailed the hijacked aircraft but did not attempt a hostage rescue mission. Again in 2001, in the aftermath of the attack on Indian Parliament, the political masters could not muster the political will to carry out surgical operations against Pak-based terror outfits. It was the same story in 2008. Israel on the other hand, has displayed considerable amount of political will in striking back at its adversaries and has the unique distinction of having struck against non-state actors far from its borders.

India’s past experience of special operations (involving its Special Forces) have been limited in its scope. Barring Operation Cactus (1988) in Maldives, the failed mission to nab the leadership of the Tamil Tigers in Jaffna in 1988 and Operation Khukri (June 2000) in Sierra Leone all Special Forces’ operations have been carried out within the country, mostly in Jammu and Kashmir and in the North-East. In Operation Cactus a battalion of the Parachute Regiment was air-dropped to rescue and assist the government of Abdul Gayoom against the mercenaries belonging to the People’s Liberation Organisation of Tamil Eelam (PLOTE) and Operation Khukri was a daring rescue mission conducted by the Para Commandos in Sierra Leone resulting in the rescue of 21 hostages. In Operation Blue Star (June 1984), commandos of the 1st Battalion of the Parachute Regiment were unsuccessful in reaching the edge of the sacred pool to the Akal Takht. The National Security Guards (NSG) was established pursuant to an Act of Parliament called the National Security Guard Act, 1986. It was set up in the aftermath of the infamous Operation Blue Star wherein apart from the high casualties suffered, the shrine itself suffered severe damage. The operation necessitated the need for setting up a highly specialised and efficient force for counter-terrorist operations. Thus, NSG was deployed initially to combat the militancy in Punjab. In Black Thunder I (April 1986) about 300 National Security Guards commandos stormed the Golden Temple along with 700 Border Security Force troops and captured about 300 separatists. Two years later, in May 1988, the Golden Temple was again besieged and the security forces conducted Operation Black Thunder II and were successful in eliminating about 40 militants and forced the surrender of 200 militants. Operation Ashwamedh was an operation conducted in April 1993 when NSG commandos stormed a hijacked an Indian Airlines aircraft with 141 passengers on board at Amritsar airport. The lone hijacker, Mohammed Yousuf Shah, was killed in the operation. In September 2002, again the NSG carried out Operation Vajrashakti to flush out two heavily armed LeT terrorists who had caused carnage in the Akshardham Temple, Gandhinagar. In this operation, while the terrorists were killed, nearly 29 devotees and two commandos and one state police officer were also killed. About 79 devotees were also injured in the terrorist attack.

It is important to remember that all operations carried out by Special Forces have not been successful. The US which is lauded today for its operation against the terror master-mind Osama bin Laden had to face embarrassment and political backlash in April 1980 when the then US President Carter authorized an operation to rescue fifty-three American citizens held hostage in Iran ended in disaster. Operation Eagle Claw, as the ill-fated rescue mission was called resulted in the death of eight US servicemen. The fireball in the Iranian desert took the Carter presidency with it.

Concluding Observations

In conclusion, it must be said that though India has Special Forces, they have been largely used as a kind of super-infantry - employing them on missions which the regular army would baulk at. India does not lack brave men and officers, but what it does not currently possess is the right blend of political will, politico-military-intelligence integration and specialized technology that make these operations possible.

As former Intelligence Bureau chief Ajit Doval says "What we need is to have a national political will accepting active national self defence as a doctrine to neutralise the enemies of India”. "The nature, instrumentalities and deniability quotient of covert actions should be determined by our mission objective, intelligence capabilities and requirements of consequence management," he added.

By their very nature, all Special Forces operations are fraught with not just physical danger, but grave political consequences may ensue from failure. A goof-up in Abbottabad would have led not only to the possible capture and death of the US Navy Seals, but a possible sinking of Barack Obama's presidency as in the case of Operation Eagle Claw.

An edited version of this article appeared in the website of Centre for Land Warfare Studies (CLAWS) http://www.claws.in/index.php?action=master&task=859&u_id=158