It certainly wasn’t the first time a government was accused of orchestrating a killing on foreign soil, but observers around the world were nonetheless shocked by Prime Minister’s Justin Trudeau’s allegation on Monday that India’s leaders had a hand in killing a Canadian citizen earlier this year in B.C.
India has strongly denied any connection to the killing of Sikh leader Hardeep Singh Nijjar, who had been labelled a terrorist by New Delhi over his support of an independent Khalistani state.
Such killings are usually pinned on the likes of Saudi Arabia or Russia.
But extra-territorial assassinations aren’t just for rogue states and can sometimes even be justified under international law. Sometimes.
What laws would it break?
If the Indian government did play a role in killing Nijjar, it would be a significant violation of Canada’s sovereignty.
“There is no question that this conduct is unlawful,” said Leah West, an associate professor of international affairs at Carleton University’s Norman Paterson School of International Affairs. “It is an unlawful violation of sovereignty, it’s an unlawful exercise of the state’s power inside Canada.
“It is really hard to think of examples that are more significant than a foreign state executing a Canadian citizen on Canadian territory for their own ends.”
If the allegations are true, India would be guilty of violating the basic rule that states are bound to respect each others’ territorial sovereignty, said Dapo Akande, professor of public international law and co-director of Oxford University’s Oxford Institute for Ethics, Law and Armed Conflict.
“Essentially what [Ottawa is] saying is, ‘You’ve broken this by undertaking acts on the territory of Canada without the permission of Canada.'”
It would also violate the UN Charter, which says all members shall refrain “from the threat or use of force against the territorial integrity or political independence of any state.”
That means if there’s enough of a connection between the killers and “some sort of state apparatus in India … India itself could be held legally accountable,” said Noah Weisbord, an associate law professor at McGill University and author of The Crime of Aggression: The Quest for Justice in an Age of Drones, Cyberattacks, Insurgents, and Autocrats.
How can such killings be justified?
Al-Qaeda’s leader Osama bin Laden was shot and killed in 2010 in a Pakistani compound by U.S. Navy SEALs. Ten years later — in one of the most recent and high-profile extra territorials killings — it was the U.S. again that killed Iranian Gen. Qassem Soleimani with a drone strike in Iraq.
Israel too has acknowledged targeting Palestinian militants, mostly through drone or airstrikes. But it also is suspected of being responsible for killing top Iranian nuclear scientists in an effort to thwart that country’s nuclear ambitions.
Israel also kidnapped and eventually executed Adolf Eichmann, one of the key Nazis responsible for orchestrating the Holocaust, near his home in Argentina in 1960. (Argentina was outraged and the UN agreed the incident had violated its sovereignty.)
States generally agree, says Akande, that during an armed conflict, it is permissible to take the life of a combatant or someone who’s taking direct part in that conflict.
In both those cases, the U.S. government argued that Bin Laden and Soleimani posed an imminent threat and that the killings were defensive and, therefore, justified under international law.
Yet they did raise questions by some human rights activists, who expressed concerns about those killings and targeted killings in general and whether they meet the threshold of self defence or an imminent threat.
Another problem, says Weisbord, is that the targets aren’t given an opportunity to defend themselves in open court.
“There’s been no process to judge before they execute,” he said. “So there’s a real problem with extrajudicial killings from a human rights perspective and a fair process perspective.”
Would India be able to justify it?
Simply put, no, according to Akande and West.
The allowance that states can take life when protecting the lives of others doesn’t apply in Nijjar’s case, says Akande, though the Indian government would likely disagree, having deemed the Sikh leader a terrorist.
West notes that Canada is not in a conflict with India and India is not in an armed conflict with activists in Canada.
She says this case would be more analogous to the death of U.S.-based journalist Jamal Khashoggi, who was killed by a team of Saudi officials inside the Saudi consulate in Istanbul in 2018.
What legal recourse does Canada have?
Akande says Canada could take steps which would ordinarily violate its own obligations in response to India’s alleged violation.
Ottawa could opt to disregard this or that treaty, for instance, unless India pays compensation, punishs the killers or makes amends in some other way.
“That’s part of the reparation,” Akande said.
Canada could also seek recourse through the International Cout of Justice (ICJ). For example, Canada and its allies recently took Iran to the ICJ over its responsibility for the downing of a Ukrainian passenger jet and the deaths of all 176 passengers and crew in 2020.
In 2019, India accepted the jurisdiction of the ICJ, with some exceptions, Weisbord says. One of those exceptions includes disputes “relating to or connected with facts or situations of hostilities, armed conflicts.”
“So I don’t know if the court would even take jurisdiction in this case, because for the [ICJ] to have jurisdiction, both of the party candidates need to have accepted its jurisdiction prior to the conflict and not expressed a reservation.”