Targeted Killings: New Allegations Against India and Ukraine

Written by

Yesterday, the Canadian prime minister, Justin Trudeau, stood up in Parliament and formally accused the government of India of committing a targeted killing on Canadian territory. The victim, Hardeep Singh Nijjar, was a prominent leader of a Sikh separatist movement in India, who was designated as a terrorist by the Indian government. He was assassinated in June in front of a Sikh temple. From an international law standpoint, this kind of public accusation raises two sets of issues.

The first is attribution, which can be legal, technical, and political; for our purposes, the key question is the identity of the assassins and the nature of their link to the Indian government (were they, for example, individuals who worked for Indian intelligence services, i.e. state organs, or were they contractors of some kind, acting allegedly under the Indian state’s instructions, direction or control).

Related to this question, but conceptually distinct from it, is the issue of the evidence supporting an attribution claim. In the context of an accusation of this type, must the Canadian government provide the Indian government confidentially, or the world publicly, with at least some of the evidence supporting its conclusion? These questions frequently arise in the cyber context, where they have been endlessly discussed. The mainstream position on the evidence point is generally that a state is not legally obliged to disclose evidence that can undermine its sources and methods of intelligence-gathering, but that failing to do so, at least to some extent, will undermine the persuasiveness of its claims in the court of public opinion. I won’t say more here on attribution or evidence, because I’m sure that in the coming days we’ll get (at a minimum) some press reporting that may shed more light on the facts as determined by the Canadian government.

The second, more interesting set of questions, is in the nature of the breach of international law that the Canadian government alleges. And here we must turn to the exact language used by the Canadian PM, which I’m sure has been carefully vetted and lawyered. The full text of the statement can be found here; but it has some errors in transcription, which I corrected – the video of the PM’s statement is here. I will reproduce only the parts important for my analysis:

Canada is a rule-of-law country. The protection of our citizens and the defence of our sovereignty are fundamental. Our top priorities have therefore been that our law enforcement and security agencies ensure the continued safety of all Canadians, and that all steps be taken to hold perpetrators of this murder to account. …

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 rules by which free, open and democratic societies conduct themselves.

As one would expect, we have been working closely and coordinating with our allies on this very serious matter. In the strongest possible terms I continue to urge the Government of India to co-operate with Canada to get to the bottom of this matter. I also expect it to reiterate that its position on extrajudicial operations in another country is clearly and unequivocally in line with international law.

What is so interesting here is not so much what Mr Trudeau said, but what he didn’t say. Twice he uses the term ‘sovereignty’, and the second time he does so he accuses India of breaching Canada’s sovereignty. In doing so, he uses an interestingly vague formulation – ‘any involvement of a foreign government’ – which may go below an attribution threshold. That is, he appears to be saying that even Indian complicity in the assassination (rather than its authorship, as it were), would suffice to violate Canada’s sovereignty. I assume his reference to the killing of a Canadian citizen on Canadian soil is a political, rhetorical device only – Canada’s sovereignty would have been equally violated if a Serbian, British or Indian citizen was killed by India on Canada’s territory.

What’s missing here is any reference to human rights. Mr Trudeau has accused India of violating the rights of the Canadian state, viz. its sovereignty, but not the rights of the individual victim, viz. his human right to life. Yes, he uses the term ‘murder,’ a criminal law concept, but he never clearly says the essence of the violation of international law here is in the unjustified taking of human life. What he does say, in an ingeniously ambiguous sentence, is that Canada expects India to ‘reiterate that its position on extrajudicial operations in another country is clearly and unequivocally in line with international law.’

Just look at that. He doesn’t say extrajudicial executions, assassinations or killings, which is terminology that a human rights lawyer would recognize. He uses the term ‘operations,’ which is simultaneously both softer and broader (e.g. it could include all sorts of intelligence operations). ‘In line with international law’ – what exactly does that mean? Is he talking only about Canada’s sovereignty, or is this an oblique reference to the human rights of the affected individual? Finally, expecting India to say something also seems like a form of satisfaction that Canada wants to repair the injury done to its sovereignty.

The basic problem with this focus on sovereignty is that it entirely negates the relevance of the individual. Imagine if Canada had consented to the Indian operation – suddenly there would be no violation of Canada’s rights in international law. The core violation, that of the individual’s right to life, would go entirely unadressed.

So why are human rights missing here? Well, I think we can reasonably speculate that this is because of Canada’s long history of denying that human rights law, including the International Covenant on Civil and Political Rights (to which both Canada and India are parties), applies extraterritorially, except perhaps in the narrowest of circumstances. In other words, by accusing India of violating Mr Singh’s human rights, Canada would inevitably be affecting its own position on when the right to life, and other human rights, apply abroad. And so Canada refrained from saying that Mr Singh’s right to life was violated by India.

Some readers might be experiencing a bit of a deja vu. And it’s true – we’ve been here before. In March 2018, after the Salisbury nerve agent attack, the British prime minister, Theresa May, similarly accused Russia of violating the UK’s sovereignty, while refraining from speaking about the human rights of the victims. She presumably did so for the same reason that provoked Mr Trudeau’s abstention. But Mrs May also accused Russia of violating the prohibition on the use of force against the UK, which Mr Trudeau did not do against India, presumably in an attempt to avoid overly escalatory language – again an example of the importance of silences. (See more this post by Dapo discussing the de minimis threshold of the prohibition on the use of force, and this post by me discussing the human rights point).

Let’s turn now briefly to Ukraine. Ten days ago the Economist published an impressive piece of reporting, under the heading ‘Inside Ukraine’s assassination programme.‘ The gist of the piece is that Ukrainian intelligence services have engaged in a campaign of targeted killings.

Over 18 months of war, dozens of people like Yunakov [the mayor of an occupied Ukrainian town collaborating with the Russians] have been targeted in clinical operations across occupied Ukraine and inside Russia itself. They have been shot, blown up, hanged and even, on occasion, poisoned with doctored brandy. Ukraine is tight-lipped about its involvement in assassinations. But few doubt the increasingly competent signature of its security services. The agencies themselves drop heavy hints. “Any person who betrays Ukraine, shoots at Ukrainians or fires missiles on Ukrainians should understand that they are being watched and will be brought to justice,” says Andriy Cherniak, an officer of HUR, Ukraine’s military-intelligence agency. In an interview in July his boss, General Kyrylo Budanov, went further: “If you are asking about [creating a version of] Mossad…We don’t need to. It already exists.”

The piece provides further evidence of the attribution of such killings to Ukraine. It contains a lot of information from insiders, including as to their doubts that the ‘right’ individuals are being targeted. In particular:

Ukraine’s president is understood to authorise the most controversial operations, though other decisions are delegated. A high-level government source with knowledge of the work declines to discuss the details: “It’s important not to comment or even think about such operations.” But he says that Volodymyr Zelensky has issued a clear order to avoid collateral damage among civilians. “The president communicates this instruction to people formally, and, on occasion, by shouting at them.” Ukraine had to choose its targets carefully, the source adds; it might “not always” have done so.

Ukraine’s leadership came under particular scrutiny in October, when the New York Times reported that the American government was blaming it for a car-bomb that killed Darya Dugina, daughter of Alexander Dugin, a nationalistic philosopher. That sharpened an already-lively internal debate within Ukrainian intelligence. It was unclear if Ms Dugina was meant to die; some reports suggest she had switched cars with her father.

But a subsequent string of operations targeting mid-level propagandists showed a trend that few of the insiders interviewed for this article were happy with. “These are marginal figures,” says one source in SBU counter-intelligence. “It makes me uncomfortable.” The former SBU fifth-directorate officer suggests the operations were designed to impress the president rather than bring victory any closer. “Clowns, prostitutes and jokers are a constant around the Russian government,” he says. “Kill one of them, and another will appear in their place.”

I’m not going to dwell here on the strategic benefits or drawbacks of such operations, or on their ethics. The applicable international law seems to be reasonably clear. In the context of an armed conflict, targeting civilians, no matter how awful they might be, is categorically impermissible so long as they do not directly participate in hostilities. A propagandist, a traitor or a collaborationist mayor are generally not combatants or civilians DPH-ing. Moreover, as a matter of human rights law, killing individuals who do not pose a direct threat to the lives of others cannot be justified. It could be that, in some circumstances, an individual targeted may have presented such a threat. But many do not appear to satisfy that threshold, including the case discussed in the piece of a former Russian submarine commander killed while jogging, or the case of Ms Dugina. Engaging in such a campaign against individuals who are not combatants violates both IHL and IHRL.

And here, at least, we do not have an extraterritoriality problem, because the official view of the Ukrainian government is, in fact, that human rights apply extraterritorially to targeted killings. How do we know? Because Ukraine sued Russia in the European Court of Human Rights for conducting its own campaign of targeted killings abroad – a case which remains pending, in addition to the litigation concerning the war itself.

Print Friendly, PDF & Email

Leave a Comment

Comments for this post are closed

Comments

DD says

September 19, 2023

Dear Marko,
Thank you very much for this thought proviking and insightful piece.

With respect to the incident on Canada's territory, one part that I found that was missing in your analysis was the reference to IHL; i.e., whether the alleged targeted killing triggered an international armed conflict between Canada and India (provided that the targeted killing is attributable to India)and whether the legality of the attack shuold be assessed through the lens of IHL as well, in addition to IHRL and the law of the use of force. According to the famous Pictet First Shot Theory, such an incident would suffice to trigger an IAC between Canada and India. However, that is not the only approach in the literature (For instance, the ILA's Report from 2010). Perhaps, as you alluded to in your post, Prime Minister Trudeau avoided any reference to IHL or the Jus Ad Belllum in order to prevent further escalate of the situation - but I was wondering what is your view with regard to the application of IHL in this particular case.

Marko Milanovic says

September 19, 2023

DD,

Thanks for raising this point. A scenario such as this one raises the issue of whether there are some de minimis qualifications to the threshold of an international armed conflict. There are conflicting views on this point, including as to the relevance of any belligerent intent. Even the Pictet commentary and the new ICRC commentary tend to talk about the intervention of the armed forces of a state, which would generally not cover isolated assassinations by other state agencies.

Personally I don't think that IHL is a good fit for this kind of scenario. Even if it did apply - and I think the answer is no, it did not - IHRL is much better fit for such a scenario in terms of its general structure and purpose. And under IHRL a person could not be lawfully killed unless they were a threat to others, and no other means existed to deal with that threat.

DD says

September 19, 2023

Dear Marko,
Many thanks for the prompt response. I tend to agree with you that IHL is not a good fit for these kind of situations, though I am of the view that some degree of caution is warranted before adopting any subjective criteria such as animus belligerendi for the application of IHL. With respect to your point on the ICRC's view which speaks on intervention of the armed forces of a State - I am not sure that agents which receive instructions and directions from a State would not suffice to trigger an IAC. For instance, a police officer who cross a border and start shotting a civilian or a soldier of another State, to my mind, would trigger an IAC between the two States, despite the fact that the police officer is not part of the armed forces of a State.
Furthermore, I was wondering whether your conclusion with respect to the lack of suitability of IHL to these kind of situation would be the same in other contexts, such as the targeted killing of General Qassem Soleimani, which raised some interesting discussions on whether IHL was applicable to the trageted killing. Of course, the contexts is very different than the one in your blog post, but I do think there is some merits to argue that IHL is also not a good fit in the Soleimani incident. I would love to hear your views or thought in this respect.
Many thanks in advance.

Nicolas Boeglin says

September 19, 2023

Dear Professor Milanovic

Many thanks for this very interesting post.

I was wondering when occurred the very first target killing. This article published in France in 1981 in AFDI

https://www.persee.fr/doc/afdi_0066-3085_1981_num_27_1_2435

refers (p. 150) to the killing of an Egyptian nuclear physician, killed on June, 1980 in Paris, by Israel´s secret service. His name was Yahya Al-Meshad.

Many thanks in advance to you and other colleagues in order to fin the "very first" target killing registered.

Yours sincerely

Nicolas Boeglin

Nicolas Boeglin says

September 19, 2023

Dear Professor Milanovic

Many thanks for this very interesting post.

I was wondering when occurred the very first target killing. This article published in France in 1981 in AFDI

https://www.persee.fr/doc/afdi_0066-3085_1981_num_27_1_2435

refers (p. 150) to the killing of an Egyptian nuclear physician, killed on June, 1980 in Paris, by Israel´s secret service. His name was Yahya Al-Meshad.

Many thanks in advance to you and other colleagues in order to find the "very first" target killing registered as such.

Yours sincerely

Nicolas Boeglin

Marko Milanovic says

September 19, 2023

Nicolas, apologies, but I genuinely don't know what would qualify as the historically first targeted killing. To be honest I don't think that inquiry makes much sense, because the modern terminology simply hides the fact that states have engaged in assassinations, at home or abroad, since the dawn of time. And the medieval Ismaili order of assassins, from which we get the word, was itself in some sense a state-like entity.

Marko Milanovic says

September 19, 2023

DD,

Thanks for that. Yes, I fully agree that IHL is not the right fit for the killing of Soleimani either. There it is more plausible to argue that an IAC was initiated (disregarding for a moment the position that a US-Iran IAC already existed), because armed forces and methods were used etc. And to the extent that an IAC started and IHL applied, Soleimani was straightforwardly a combatant and thus a lawful target. But that in my view does not end the inquiry. That type of situation, far from a conventional battlefield, is a much better fit for IHRL. And under that body of law Soleimani's killing could only be justified on the basis that it was the only way of preventing loss of life at his hands.

This point was raised in the comments to the post I wrote on Soleimani, which mostly focused on the jus ad bellum https://www.ejiltalk.org/the-soleimani-strike-and-self-defence-against-an-imminent-armed-attack/

DD says

September 19, 2023

Dear Marko,
Thank you for your response. Very interesting. So, if I undertood correctly, you suggest that in the case that the targeted killing triggered an IAC between the US and Iran - both IHL and IHRL would apply, but IHRL may be seen as the lex specialis in this situation and therefore would prevail over IHL?

Nicolas Boeglin says

September 19, 2023

Dear Professor Milanovic

Many thanks for your very kind answer.

I was referring to cases of targeted killing abroad registered by international contemporary law, let say since 1945.

Yours sincerely

Nicolas Boeglin

Noemi Gal-Or says

September 19, 2023

Dear Marko,
Another piece in the puzzle re. Canada's IL treatment of the targeted killing of H. Singh Nijjar and Canada's accusations of India has to do with Canada's constitution. Your point re the missing reference to human rights may also be explained to the unsettled question of the extraterritorial reach of the Canadian Charter of Rights and Freedoms. As the Government of Canada itself notes on its website:"6. Extraterritorial application of the Charter. The extent of the application of the Charter to government acts that occur outside Canada is not entirely clear as the Supreme Court has not dealt with a number of important contexts in which the Canadian government acts outside the territory of Canada." https://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/art321.html

Marko Milanovic says

September 19, 2023

DD,

I don't think 'prevailing' is a useful way of thinking about the relationship between the two bodies of law. Neither is lex specialis. My view is simply that a killing can, in some situations, be lawful under IHL, but not lawful under IHRL. The same goes for say deprivations of liberty. I've written about this extensively in long form.

Neomi,

You are quite right about the relevance of the parallel issue of the extraterritorial application of the Canadian Charter. In a recent case, the Canadian Supreme Court had the opportunity to clarify the mess it had previously made on this point in the Hape case, but unfortunately a majority of the Court was of the view that it was not necessary to overrule Hape in order to rule that the Charter applied to an extraterritorial search by Canadian agents - see R. v. McGregor, 2023 SCC 4.