India and the US-Pakistan F-16 Agreement

Author Name: Rai Muhammad Saleh Azam       23 Jun 2020     Airforce

In a pre-dawn attack on 26 February 2019, Mirage 2000 fighter aircraft of the Indian Air Force (IAF) intruded into Pakistani airspace over Azad Kashmir to target an alleged terrorist training camp near Balakot in Khyber Pakhtunkhwa Province. Before being intercepted by Pakistan Air Force (PAF) fighter aircraft, the IAF fighters launched four Israeli-made SPICE 2000 EO/GPS-guided stand-off 2,000 pound PGMs (precision guided munitions) at their target. The airstrike was, however, far from precise. According to local eyewitnesses, media, and the District Forest Officer, the bombs missed whatever was their intended target and, instead, struck a pine forest on a hillside next to some civilian houses, injuring one civilian and partially or completely damaging 19 pine trees, in addition to killing a crow.

The next day, on the morning of 27 February 2019, the PAF retaliated and shot down two IAF fighter jets over Kashmir. One of the IAF jets, a MiG-21 Bison, crashed in Azad Kashmir and its pilot, Wing Commander Abhinandan Varthaman, of IAF’s No. 51 Squadron, who ejected, was taken into custody by the Pakistani military. The other aircraft, reportedly a Su-30MKI from IAF’s No. 221 Squadron, crashed in IOK. The loss of the Su-30MKI has not been admitted by the IAF, which made a counter-claim of shooting down a Pakistani F-16, which claim has been denied by Pakistan and remains unsubstantiated as the Indians have been unable to provide any evidence in this regard.

During the PAF-IAF engagement, the IAF, in what can only be described as a state of panic and confusion, admittedly shot down its own Mil Mi-17V5 helicopter belonging to the 154 Helicopter Unit, using an Israeli-made SPYDER-MR surface-to-air missile, which crashed in Badgam in the Kashmir Valley in IOK killing all six IAF personnel onboard and one civilian on the ground. The helicopter was presumably on a search and rescue mission for the pilots of the downed IAF Su-30MKI.

The then Pakistani military spokesperson, Maj. Gen. Asif Ghafoor, in a press conference held shortly after the incident, officially confirmed the downing of two IAF fighter aircraft by the PAF and the capture of two IAF pilots, which was later changed to one IAF pilot. Maj. Gen. Asif Ghafoor denied the downing of any PAF F-16, as claimed by the IAF, and also denied use of any F-16s by the PAF in the engagement. He did not specify which aircraft were used.

On 28 February 2019, the Indian military held a joint services press conference in which they showcased fragments from the casing of one AIM-120C-5 AMRAAM beyond visual range (BVR) air-to-air missile as evidence of F-16 use and possibly of its downing. The AMRAAM, which is an acronym for “Advanced Medium Range Air-to-Air Missile”, is manufactured by the US arms manufacturer, Raytheon and was sold to Pakistan in 2006. These AMRAAM fragments were probably salvaged from the wreckage of an IAF aircraft, which fell on the Indian side of the Line of Control. This is evident from the fact that the fragments show that the missile, which has a proximity-fuse attached to a high-explosive blast-fragmentation warhead, had detonated in the air. According to missile experts, the AMRAAM warhead does not detonate if it hits the ground. In South Asia, Pakistan is the only country that has the AMRAAM and Pakistani F-16s are the only combat aircraft capable of employing the AMRAAM. The AMRAAM fragments, if they indeed belong to a Pakistani missile, can only point to use of a PAF F-16 in the engagement but do not evidence the downing of a PAF F-16. In other words, the missile fragments prove only that a PAF F-16 fired at least one AMRAAM at an IAF aircraft, which detonated in close proximity to such aircraft. It does not prove that a PAF F-16 was downed. The PAF’s use of the AMRAAM to bring down the IAF fighter jets on 27 February 2019 are the first BVR kills of fighter jets in air combat in South Asia.

India claims that Pakistan has “misused” the F-16s against India in violation the F-16 sales agreements with the US, implying that the PAF, due to contractual restrictions allegedly enshrined in the sale of F-16s to Pakistan, cannot use the F-16s, or armaments used by the F-16 like the AMRAAM, against any third country, including India. India has further claimed that Pakistan’s F-16s can only be used in internal anti-terror operations.

Intuitively, such Indian claims do not make sense for various reasons: (i) Pakistan took delivery of its first batch of 40 F-16s from 1983 onwards when there were no internal anti-terrorism operations being conducted by Pakistan; (ii) the F-16 is a multi-role fighter originally designed as an air defense fighter and was sold to Pakistan with both air-to-air and air-to-ground munitions; (iii) during the 1980-88 Soviet-Afghan war, F-16s were used by Pakistan to intercept and shoot down at least eight Afghan and Soviet military aircraft that intruded into its airspace without any censure from the US; (iv) On 7 June 2002, during the 2002 India-Pakistan standoff, a PAF F-16B was used to shoot down an Israeli-made Searcher II Unmanned Aerial Vehicle of the IAF near Lahore using an American-made AIM-9L Sidewinder missile without invoking any reaction from the US; (v) in 2006, the US sold 500 latest variants of the AMRAAM, the AIM-120C-5, which were delivered to Pakistan by 2011; (vi) the US delivered 18 advanced Block 52+ F-16s to Pakistan in 2010 with air-to-air weapons; (vii) till date, the US has not censured Pakistan for use of the F-16 or US missiles; and (viii) on 27 July 2019, i.e. after the IAF aircraft downing incident, the US announced a $125 million technical and logistical support package for Pakistan’s F-16s under the Foreign Military Sales (FMS) programme, which can hardly be described as a case of censuring.

The AMRAAM is an-air-to-air missile for use against enemy aircraft. It is not and cannot be used against ground targets or terrorists. Needless to say, terrorists don’t have air forces or aircraft. When the US sold the AMRAAM to Pakistan, it was fully aware that the missiles were not intended for anti-terrorism operations and that they were most likely to be used by the PAF against its arch nemesis, the IAF, using F-16s.

Like all defence contracts, the US-Pakistani F-16 sales contracts, known as “Letters of Offer and Acceptance” (“LOA”), are confidential and there is no way for the Indians to know the contents of these LOAs, and, given their confidential and bilateral nature, the US is unlikely to share such information with any third party, including the Indians. In the circumstances, how the Indians are able to claim violation of the terms of contracts to which they are not privy to can best be explained by them.

The US laws that govern the sale and use of US-made armaments to foreign governments are the Foreign Military Sales Act of 1968 (“FMSA”) and the Arms Export Control Act of 1976 (“AECA”) respectively. Both laws are applicable on the US Government, the concerned Foreign Government (in this case, the Pakistan Government), and the US arms manufacturers whose weapons are being sold (in this case, Lockheed Martin Corporation, the F-16 manufacturer, and Raytheon, the AMRAAM missile manufacturer). It is highly likely that the US-Pakistani F-16 sales contracts are standard contracts that the US uses when selling F-16s to any country and do not contain country-specific restrictions, but rather apply the generally-applicable restrictions and end-user monitoring mechanisms contained in the AECA.

Section 4 of the AECA pertains to the purposes for which military sales or leases by the United States are authorized. The relevant excerpt of Section 4 reads: “Defense articles and defense services shall be sold or leased by the United States Government under this Act to friendly countries solely for internal security, for legitimate self-defense...” (emphasis added)

Section 40A of the AECA provides for end-use monitoring of defence articles and services. In case of violation of conditions of sale, the US Secretary of State is authorised to suspend any defence contract under Sections 2(b), 42(e)(1), and 42(e)(2) of AECA. AECA also permits the US to suspend defence contracts under “unusual or compelling circumstances if the national interest so requires”. The fact that the US did not suspend any F-16 defence contract with Pakistan or censure Pakistan under AECA indicates that the US does not think that Pakistan violated any conditions of the F-16 sales by downing Indian warplanes on 27 February 2019. The only logical explanation for not doing so is that the US believes that the Pakistani F-16s were used for “legitimate self-defense” as provided by Section 4 of AECA and there was no violation of AECA by Pakistan.

There may be two reasons why the US may hold this view: Firstly, the IAF was the first to attack Pakistan on 26 February 2019 and the PAF’s actions the next day were perceived by the US in the way of legitimate punitive and retaliatory self-defence or “offensive defence” intended to deter India from any future misadventure. Secondly, the PAF shot down IAF warplanes in self-defence when they were being attacked by the IAF. It’s immaterial whether the PAF crossed the Line of Control or fired an AMRAAM on an IAF fighter while it was inside the airspace of IOK. The IAF’s Su-30MKIs have BVR capability and any air force considers it legitimate self-defence to engage a BVR-capable aircraft that can potentially shoot you down from within its own airspace even if it has not crossed into your airspace. The fact that multiple IAF Mirage 2000 aircraft crossed into Pakistani airspace on 26 February 2019 and at least one IAF MiG-21 crossed into Pakistani airspace on the morning of 27 February 2019 lends further legitimacy to Pakistan’s counter-attack by way of legitimate self-defence.

Also, the US appears to liberally construe the term “self-defence.” In 1985, when Israel attacked the headquarters of the Palestine Liberation Organization (PLO) in Tunis using US-made F-16 and F-15 fighter aircraft, the US Government concluded that the attack was “understandable as an expression of self-defence.”

In the case of the Pakistan-India aerial encounter of 27 February 2019, various statements by retired and serving Pakistani and US officials lends further credence to Pakistan’s position that no F-16 sales agreement was violated.

Pakistan’s former Chief of Air Staff, Air Chief Marshal (Retd.) Sohail Aman, in an interview with the BBC while responding to a query on whether or not the US had imposed any restrictions on use by Pakistan of its F-16s, stated, “Whenever any country pays the due cost for purchase of such [defence] equipment, they entitled to use it however they see fit. No such conditions [regarding restricted use] are imposed.” In a press briefing on 5 March 2019, the US State Department Deputy Spokesperson Robert Palladino stated, “As a matter of policy, we don’t publicly comment on the contents of bilateral agreements...involving US defence technologies.”

It can, therefore, be concluded that (i) there are no restrictions on use by Pakistan of its F-16 aircraft for legitimate self-defence purposes; (ii) the US construes the term “self-defence” widely and liberally to include retaliatory offensive defence; and (iii) the US has taken the position that no F-16 sales agreement was violated by Pakistan in using its F-16 aircraft against India in the aerial incident of 27 February 2019.

 

The writer is a High Court Advocate based in Lahore, Pakistan and principal lawyer at Azam & Rai (Advocates & Legal Consultants). E-mail rms.azam@azamrai.com. The views expressed in this article are the personal views of the author and do not necessarily represent the views of, and should not be attributed to, Centre for Aerospace and Security Studies (CASS), and Azam & Rai.