Of killings, assassinations, and extrajudicial killings

Apart from that is the fact that the Guardian piece, which uses ‘assassination’ and ‘targeting’ and ‘extra-judicial killings’ interchangeably, which is surprising in the case of a highly regarded news source. Each of these have widely different legal connotations. Days before Tamba’s killing, foreign minister Jaishankar tersely said that said that India was committed to respond to any act of terrorism perpetrated from across the borders, and asserted that since terrorists do not play by rules, there cannot be any rules in the country's answer to them. He’s right in part, but there are rules, and most are in India’s favour. The term ‘assassination’ in legal parlance denotes a political crime against national level leaders. That includes plans by the Central Intelligence Agency (CIA) to kill foreign leaders like Patrice Lumumba or president Sukarno of Indonesia. British agencies were charged with trying to kill Gaddafi of Libya, and later Saddam Hussein, or United States (US) plans to assassinate Julian Assange, by then CIA director Mike Pompeo, after the Australian activist leaked the CIA’s hacking tools on Wikileaks. Most assassinations require a state, an agency and formal permissions however opaque. But the assassination of Rajiv Gandhi was by a non-State actor seeking operational gains. Assassinations generally remain wreathed in mystery, with the Kennedy assassination being a prime example, and that of Benazir Bhutto being another. India has never indulged in such assassinations in its history, either in its ‘sphere of interest’ or elsewhere.

The term targeted killing arose primarily after 9/11 and drone attacks on a persons the US either declared as ‘combatants’, or some completely unknown such as a 2002 strike in Yemen, indicating that criteria for such attacks problematic. A UN Special Report defines it as “ the intentional, premeditated and deliberate use of lethal force, by States or their agents acting under colour of law …against a specific individual who is not in the physical custody of the perpetrator”.

The report is scathing on the “highly problematic blurring and expansion of the boundaries of the applicable legal frameworks” and the resultant vaguely defined license to kill. That license arises from the legitimate right of the state to self-defence as defined by Article 51 of the UN Charter, leading to states formally declaring target killing as policy. In November 2000, the Israeli government confirmed the existence of aa policy on targeted killings in self-defence because the Palestinian Authority failed to prosecute terrorists. Israeli courts subsequently adjudicated favourably on the matter. Similarly, was thee post 9/11 speech by President George W Bush declaring attacks against “… any nation that continues to harbor or support terrorism”.

A 2006 Russian law permits killing of terrorists overseas, with presidential assent. Interpreting whether a particular action is taken in self-defence is difficult, given the extreme secrecy of such operations and convoluted state arguments. The International Court of Justice therefore limited this right, ruling that Article 51 could be invoked only when armed attacks by non-state actors are imputable to another State. International Humanitarian law also has strictures , but recognises as attacks on the territory of a state sponsoring such attacks as legitimate, and if it refuses to act against perpetrators thereafter. The post 9/11 UN Resolution 1368 rests on these principles, as does expert studies such as a Chatham House set of principles, which additionally views self defence against ‘imminent attack’ as reasonable.

Extra-judicial killings (EJK) fall in a different bracket. Examples include the Saudi killing of Jamal Khashoggi in Turkey or Russia’s elimination of dissenters, where no state of armed conflict existed, and no immediate threat was apparent, nor as the UN ruled violated the Vienna Convention prohibition of use of force during peacetime. EJK’s are usually when domestic law enforcements ignoring the basic right to life, and the state’s obligation to respect it within and outside their territories. Unfortunately, this is apparent in most countries including India, where ‘encounters’ are almost hailed as necessary given a tortuous legal system and poor forensic capabilities. In the US, massive civil protests under the “Black Lives Matter’ movement arose after the killing of George Floyd by three Minneapolis police officers. In short, it is illegal by any definition.

In the case of an Indian decision to act against terrorists in Pakistan, it could be argued that it is justified by first, international law in ‘self-defence’, backed by domestic law, with all on a ‘most wanted’ list . Second, it fulfills the requirement of a State actor being involved. Third, there is a clear background of decades of proxy armed conflict, as apparent by repeated Indian representations at the UN. Fourth, that Pakistan had refused to indict any terrorist despite even sharing of data. Some of these principles also applies in Canada, given that its legal system failed miserably in indicting perpetrators of the Kanishka bombing and malign activity against India. This and the alleged targeting of US citizen Gurpatwant Singh Panun however falls into an unsaid principle that one doesn’t conduct actual attacks on the territory of ‘friendlies’, though you may spy as much as you choose, as the US has done on its European allies. But the bottom line is this. The practise of sheltering dubious entities may make for clever strategy, but inevitably results in serious trouble and retribution as Pakistan has found with all neighbours now eyeing it askance. Worse, it robs the offender of the last stance of moral outrage, especially when all three, assassinations, targeted killing and extra judicial executions are a proven part of major countries’ quiver of policy tools.

This article is authored by Tara Kartha, director (R&A), Centre for Land Warfare Studies, New Delhi.