A Targeted Killing in Canada?
What Does International Law Say About the Current Dispute between Canada and India?
Craig Forcese and Simon Klee
The views expressed in this article are those of the authors and not of any institution with which they are affiliated.
Canada and India are embroiled in a dispute stemming from the June 2023 murder of a Canadian citizen in Canada, allegedly orchestrated by India. The murdered man, Hardeep Singh Nijjar, was reportedly affiliated with the Khalistan movement, seeking an independent Sikh homeland in India. India designated the man as a “terrorist” three years ago. His murder implicates several areas of international law: sovereignty; use of force; and questions surrounding the applicability of human rights. It is unlikely, however, that international law will determine how the dispute is resolved.
Background
On 18 Sept 2023, Canadian Prime Minister Justin Trudeau addressed the House of Commons. “Over the past number of weeks,” he reported, “Canadian security agencies have been actively pursuing credible allegations of a potential link between agents of the Government of India and the killing of a Canadian citizen, Hardeep Singh Nijjar”. Canada, he continued, “is a rule-of-law country. The protection of our citizens and the defence of our sovereignty are fundamental. … Any involvement of a foreign government in the killing of a Canadian citizen on Canadian soil is an unacceptable violation of our sovereignty. It is contrary to the fundamental roles by which free, open and democratic societies conduct themselves”.
Canada has not released the intelligence purportedly supporting Prime Minister Trudeau’s allegations. That information reportedly includes human and signals intelligence implicating, among others, Indian diplomats in Canada.
The Canadian Prime Minister’s statement, without close analogy in recent Canadian history, marks a further development in a period of intense political preoccupation with foreign interference in Canadian democratic institutions (particularly by China). In early September, the Trudeau government constituted a judge-led “Public Inquiry into Foreign Interference in Federal Electoral Processes and Democratic Institutions”.
The Prime Minister’s September announcement has now precipitated an ongoing diplomatic dispute between Canada and India. In its wake, Canada expelled an Indian diplomat affiliated with India’s intelligence service and urged (publicly and privately) Indian cooperation in investigating the murder.
For its part, India rejected Canada’s allegations, characterizing them as “absurd”. It also halted visa processing for Canadians travelling to India and demanded the departure of 41 Canadian diplomats from Canada’s diplomatic offices in India.
Pointedly, India repeated long-standing complaints that Canada, with its large Sikh population, harbours extremists and “terrorists” intent on establishing an independent “Khalistan” in India. These allegations continue almost four decades after Khalistani terrorists killed 329 people – mostly Canadians – on Air India Flight 182. The largest aviation terrorist crime until 9/11, the June 1985 plot originated in Canada. However, Canadian agencies proved inept in efforts to prevent and subsequently investigate the Canada-based pro-Khalistan perpetrators of the crime, a conclusion affirmed by a Canadian 2006-2010 judicial commission of inquiry into the bombing.
Commentators have since highlighted India’s continued discontent with Canada’s (and other Western states’) perceived delinquency in addressing security concerns that India sees as emanating from elements in the Sikh diaspora. The September events have fuelled speculation that India has decided to now embark on a policy of extrajudicial killings of those perceived as national security threats.
These events take place against a shifting geopolitical landscape. In June, Canada announced a new “Indo-Pacific” strategy. That strategy described China as “an increasingly disruptive global power”. India, meanwhile, is a “a critical partner in Canada’s pursuit of its objectives under this strategy” not least because of a “shared tradition of democracy and pluralism, a common commitment to a rules-based international system and multilateralism”. In this manner, Canada joins key allies such as the United States in courting India as a regional countervail to China. Since the events of September 2023, foreign relations commentators have pointed to the awkward impasse presented by the Canada-India dispute, not just for Canada but also for its traditional allies in the “Five Eyes” intelligence consortium and in Europe.
For Canada and its allies, therefore, the geopolitical stakes in the Canada-India dispute are considerable. At the same time, Canada’s geopolitical interests risk running up against its foreign policy preoccupation with a “rules-based international order”. Such an order is obviously not served by conduct in violation of international law.
In the balance of this article, we offer no views on how Canada should resolve this tension. Instead, we examine the “rules-based” side of the equation – that is, the international law issues raised by the Canadian Prime Minister’s allegations regarding the murder of Nijjar. These are matters that have received less attention since the Prime Minister’s statement, although several useful media articles (for example, here, here and here) have since appeared.
In conducting this analysis, we underscore: We have no access to the intelligence leading to the Prime Minister’s September statement and cannot adjudicate the competing factual claims in this matter. For the purposes of this article, therefore, we simply presume that the Prime Minister’s allegations are founded in fact. Specifically, we accept in this analysis that credible allegations exist “of a potential link between agents of the Government of India and the killing of a Canadian citizen”.
Attribution
As discussed below, an extrajudicial execution of a human being by one state on the territory of another raises serious questions of international law. However, the ambiguous reference in the Prime Minister’s statement to a “potential link” to the Indian government leaves unanswered whether the killing – and its associated international wrongs – may be legally attributed to India. The International Law Commission’s 2001 Articles on State Responsibility – widely employed as the litmus test of customary international law – provide criteria for that assessment. Were an Indian state organ — such as its intelligence service — to have committed the killing, attribution to India is straightforward (Article 4), even if that organ exceeded its authority or instructions (Article 7).
A scenario in which non-state actors committed the killing presents more complexity. Media reports describe a coordinated and complicated killing conducted by multiple assailants in multiple vehicles firing scores of bullets. Not surprisingly, the precise affiliation of the killers in what the Indian media described as a “gang war kind of op” is unknown. However, if the assailants were not part of the Indian government or its agencies, their conduct would still be attributed to India if they acted “on the instructions of, or under the direction or control of, that State in carrying out the conduct” (Art 8). If, for example, the “link” alleged by Prime Minister Trudeau in his September statement constituted a “hit” ordered by Indian officials, the standard of attribution to India would almost certainly exist. More challenging for any attribution argument would be encouragement from Indian officials short of instructions, direction or control.
For the balance of this article, we assume that the “link” alleged by the Prime Minister would satisfy the standards for attribution in international law.
Sovereignty
The Prime Minister’s September statement urged that “[a]ny involvement of a foreign government in the killing of a Canadian citizen on Canadian soil is an unacceptable violation of our sovereignty”. This concept of sovereignty is, in the words of the International Court of Justice, “the fundamental principle … on which the whole of international law rests” (at para 263).
At minimum, sovereignty means that a state has exclusive jurisdiction over its national territory. This rule of territorial exclusivity is clearly expressed in a ‘classic’ of international law: the Lotus case of 1927 . There, the Permanent Court of International Justice held that “the first and foremost restriction imposed by international law upon a State is that — failing the existence of a permissive rule to the contrary — it may not exercise its power in any form in the territory of another State”. This rule greatly limits what is known as “enforcement jurisdiction”: jurisdiction involving the exercise of state power “is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention”.
Canada obviously did not consent to the murder of Nijjar – indeed, it could not without violating its own international human rights obligations of the sort discussed below. Nor is there any principle of international law that would otherwise authorize Indian enforcement jurisdiction.
In this last respect, Indian frustration at perceived laggardly Canadian action against “extremists” and “terrorists” would not justify such an intrusion. That justification might only exist where India had a right to self-defence faced with an armed attack by these individuals, within the meaning of Article 51 of the UN Charter. Use of force issues and the concept of “armed attack” are discussed more fully below. For present purposes, it suffices that the evidence of an “armed attack” is sparse. India alleges that Nijjar was involved in: “operationalizing, networking, training and financing” “Khalistan Tiger Force” members, “various cases registered and being investigated by the Punjab Police”, and “exhorting seditionary and insurrectionary imputations and also attempting to create disharmony among different communities in India”. More specifically, India reportedly accused Nijjar of involvement in a conspiracy to kill a Hindu priest in India.
Until relatively recently, few would regard such criminal conduct by a non-state actor as capable of reaching the threshold of an armed attack. Still, there have been instances of states invoking self-defence in response to an armed attack by a terrorist conspirator actively plotting serious violence in the defending state. In 2015, the United Kingdom deployed a drone to kill Reyaad Khan in Syria. Khan was affiliated with ISIS. On review of the intelligence, the UK Intelligence and Security Committee of Parliament (‘Committee’) concluded that there was “no doubt that Reyaad Khan posed a very serious threat to the UK. He orchestrated numerous plots to murder large numbers of UK citizens and those of our allies, as part of a wider terrorist group which considers itself at war with the West. The Committee agrees [that] ‘[T]hrough his persistent and prolific efforts to recruit, advise, and encourage operatives in the West to conduct attacks, Khan poses a significant, ongoing and imminent threat to the UK’” (at 10).
However, even against this (relaxed and far from universally agreed) standard, the record of alleged criminal conduct by Nijjar, in terms of its scale and effect, seems a more unlikely candidate for “armed attack”. Khan’s connection to ISIL likely puts his case into a different category. Not least, at the time, ISIL was engaged in forcible violence on a massive scale that clearly constituted an “armed attack” against Iraq, creating a collective self-defence justification for the UK’s actions.
Moreover, even if Nijjar could be said to have engaged in an armed attack, India would need to justify its forcible action as necessary to halt that armed attack. In the Khan case, the UK Committee recognized “the need to tackle the threat at source and the limited options for doing so whilst Khan was in Syria” (at 18). The situation in Canada – a functioning state – is very different, whatever India’s objections to a Canada-based Khalistan movement. Necessity of self-defence might depend on India establishing that Canada was itself unwilling or unable to stop the armed attack. India has seemingly signalled a willingness to embrace something approximating this (still controversial) unwilling or unable doctrine in relation to Pakistan. Here, Pakistan (in India’s telling) denied the existence of terrorist training camps and failed to respond to India’s repeated entreaties for action against a terrorist group connected to attacks against India’s Parliament and a military base. India’s preoccupations with Khalistani militants and Canada’s response to them seem of a very different type and magnitude.
It is, therefore, difficult to regard as plausible an unwilling or unable argument, or (more broadly) a self-defence justification.
Absent any of these justifications, a state killing someone on another state’s territory commits a violation of the territorial state’s sovereignty. Indeed, the United Nations Security Council reached this conclusion after the Israeli assassination of a PLO leader in Tunisia in 1988 (discussed below). The Council has also viewed extraterritorial exercises of state power short of killings as violations of sovereignty. For instance, after the 1960 capture by Israel of Adolph Eichmann in Argentina, the United Nations Security Council declared that such renditions “affect the sovereignty of a Member State”, “cause international friction”, and may “endanger international peace and security”.
In sum, there is a compelling claim that a targeted killing for which India was responsible, and which took place on Canadian territory, violated Canada’s sovereignty.
Use of Force
Article 2(4) of the UN Charter obliges states to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”. The Nijjar dispute raises the question of whether the killing of a single individual amounts to a “use of force”.
There is some doubt in international law over whether a de minimis intensity or gravity threshold for use of force exists under Article 2(4). For instance, the European Union’s Independent International Factfinding Mission on the Conflict in Georgia suggested in a footnote that several violent incidents could fall below the Article 2(4) threshold: “the targeted killing of single individuals, forcible abductions of individual persons, or the interception of a single aircraft” (at 242, fn 49). Other jurists contest, however, the notion of a de minimis threshold. Thus, the International Law Association’s 2018 report on use of force concluded that there is “no conclusive evidence to support either this [de minimis view] or the contrary view”.
In fact, some states have regarded even an attempted murder committed by foreign state agents on their soil to be a use of force. In 2018, the United Kingdom Prime Minister characterized the attempted murder by Russian intelligence operatives of a Russian defector and his daughter (and the related threat posed to other British citizens) as an instance of “use of force”. Notably, the Russians used a deadly chemical weapon in that attempt. This extraordinary means clearly colored the British government’s response. However, there is no reason to confine the “use of force” threshold to circumstances involving such extreme methods. For instance, in 1988, Israeli commandos using conventional weapons raided a home in Tunis and killed PLO leader Khalil al-Wazir, as well as a Tunisian citizen and two Palestinian guards. In Resolution 611 (1988), the United Nations Security Council condemned “the aggression … against the sovereignty and territorial integrity of Tunisia in flagrant violation of the Charter of the United Nations” and expressly invoked Article 2(4) of the UN Charter in its preambular paragraphs.
It seems unlikely, therefore, that a state’s targeted killing of a single individual is excluded from the prohibition on the use of force. It does not follow, however, that the territorial state may then respond forcibly. As suggested above, a forcible response would only be justified if the killing constituted an “armed attack”, triggering a right of self-defence under Article 51 of the UN Charter. As the International Law Association report suggests (at 5-6), scholarly opinion and state practice are divided on whether every instance of use of force by a state is an armed attack. It seems unlikely, however, that an event of modest scale and effect would reach the level of an armed attack. Moreover, even if a single killing did reach this level, a forcible response in self-defence would need to be necessary and proportional. There is no necessity where the armed attack is a singular event – a forcible response here would have the hallmarks of retaliation, not self-defence. Canada’s recourse, therefore, lies in the legal remedies described below.
In sum, the claim that there is a “de minimis” threshold for use of force (excluding a targeted killing from Article 2(4) of the Charter) is judged inconclusive in academic assessments and is countered by at least some State and UN Security Council counterexamples. There is, therefore, a plausible argument that a targeted killing for which India was responsible, and which took place on Canadian territory, violated Article 2(4) of the UN Charter.
Human Rights
There is no plausible argument of which we are aware that suggests that India is engaged in an armed conflict with Khalistani extremists (wherever located), or that Nijjar was a “combatant” whose killing was governed by the law of armed conflict as it applies to a “non-international armed conflict”. Instead, a targeted killing in Canada would necessarily engage questions of human rights.
India acceded to the International Covenant on Civil and Political Rights in 1979. Article 6 of that instrument prohibits the arbitrary deprivation of life. The bar on “arbitrary” deprivation of life does not limit all state killings. It does, however, greatly limit state lethal force to narrow circumstances. International soft-law instruments provide guidance. The UN Code of Conduct for Law Enforcement Officials provides: “[l]aw enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty” (Art 3). Likewise, the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials specifies that officials may resort to forcible measures where “other means remain ineffective or without any promise of achieving the intended result” (Art 4). Where they do use force, officials must “exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved” (Art 5).
Summarizing the customary international law standards applicable to state violence outside of armed conflicts, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions concluded: “A State killing is legal only if it is required to protect life (making lethal force proportionate) and there is no other means, such as capture or non-lethal incapacitation, of preventing that threat to life (making lethal force necessary)”. This means, the Special Rapporteur observed, that “a targeted killing in the sense of an intentional, premeditated and deliberate killing by law enforcement officials cannot be legal because, unlike in armed conflict, it is never permissible for killing to be the sole objective of an operation” (at para 32-33).
Nijjar’s killing would almost certainly violate these human rights standards. The sole remaining issue is whether India was bound by its human rights obligations in its extraterritorial conduct. Article 2 of the ICCPR specifies that: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”.
Article 2 talks about territory and jurisdiction, conjunctively. Some states take the view that both must exist for the ICCPR’s obligations to attach to state conduct. However, both the UN Human Rights Committee and the International Court of Justice (at para 111) have concluded that individuals may be within a state’s jurisdiction, even while not on its territory. The Human Rights Committee has since concluded that “a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party” (at para 10).
Notably, this standard, even if it exists, is not a perfect answer to whether the ICCPR would reach an extraterritorial targeted killing. While a person physically detained by a state is within its effective control, a person killed in a drive-by shooting probably is not. On the other hand, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions has pointed to an expansion of the “effective control” concept, bringing the targeted person within the “jurisdiction” of the targeting state. That is because “human rights treaties cannot be interpreted so as to allow a State party to perpetrate violations of the treaty on the territory of another State, which it could not perpetrate on its own territory” (at para 51).
Perhaps more compellingly, the Special Rapporteur has also described the right to life “as a general principle of international law and a customary norm” (at para 30). This means that, “irrespective of the applicability of treaty provisions recognizing the right to life, States are bound to ensure the realization of the right to life when they use force, whether inside or outside their borders” (at para 43).
In sum, there is a plausible claim that a targeted killing for which India was responsible, and which took place on Canadian territory, engages India’s human rights obligations.
Remedies
Assuming that Prime Minister Trudeau’s September allegations are grounded in fact, India violated one or more obligations in international law. The remaining issue is the question of legal remedies.
Canada is free, of course, to engage in retorsion – that is, measures that do not interfere with the target state’s rights in international law. Economic sanctions (otherwise compliant with international trade law) are one example. So too are downgraded diplomatic relations, including declaring diplomats as persona non grata and inducing their departure in compliance with Article 9 of the Vienna Convention on Diplomatic Relations.
The International Law Commission’s 2001 articles on state responsibility list countermeasures as a lawful response by one state to another state’s failure to observe international obligations owed to the responding state (Chapter II). Countermeasures relax international obligations owed by the responding state to the target state, so long as the measures taken are directed at restoring compliance with international law and are proportionate. Countermeasures must also not violate certain cardinal principles of international law, including limitations on the use of force.
Canada has clearly resorted to retorsion in expelling an Indian diplomat reportedly tied to the Indian intelligence service. Whether it will avail itself of other measures, up to and including countermeasures, remains an entirely political decision. As discussed at the beginning of this article, the geopolitical context may guide Canada’s response.
A further question is whether Canada could pursue a case against India at the International Court of Justice (‘ICJ’). Both Canada and India have accepted the compulsory jurisdiction of the Court under Article 36 of the Statute of the International Court of Justice. At first blush, this appears to leave open the prospect of a contested case on the facts of this matter. However, both states’ declarations preclude ICJ jurisdiction over disputes between Commonwealth States. Both Canada and India are members of the Commonwealth. In these circumstances, there is no reciprocity by both states in their declarations, mutually accepting ICJ jurisdiction in a contested case between them. Both states would instead need first to agree, on an ad hoc basis, to the ICJ’s jurisdiction, a prospect that seems politically remote.
Likewise, India has not accepted the competency of the UN Human Rights Committee under Article 41 of the ICCPR to receive state complaints from other state parties, or to hear individual complaints under the first Optional Protocol to the ICCPR. In the result, these human rights remedy mechanisms are unavailable.
There is, therefore, no obvious international legal venue for Canada to contest India’s conduct.
In sum, there is good reason to believe that, should they be grounded in fact, the Canadian Prime Minister’s allegations point to violations of international law by India. However, the events surrounding Nijjar’s murder are likely to remain a political and diplomatic dispute addressed in the shadow of international law, without being resolved by it.
