India must kill terrorists. Nijjar blowback shows it also needs laws to guide assassins

05/05/2024

Two bullets had been fired into his gut, and one between his eyes: The assassins authored the end of the book Henry Liu had been writing. From his modest home in the suburbs of San Francisco, the investigative journalist had relentlessly attacked the Kuomintang dictatorship in Taiwan. The hit men—members of the crime cartel United Bamboo Gang, recruited by Taiwan’s military intelligence chief Vice-Admiral Wang Hsi-ling—declined payment for the job, seeing themselves as patriots silencing a dangerous Communist agent.

Later, his wife Helen Liu, offered a simple explanation for why her husband was murdered: “In Taiwan, people cannot speak freely. And he had a big mouth.”

Earlier this week, police in Canada arrested three Indian nationals for the murder of Sikh separatist Hardeep Singh Nijjar, fuelling suspicions that India’s Research and Analysis Wing (R&AW) has been targeting Khalistan operatives in the West. The men, alleged to be linked to the crime network of jailed gangster Lawrence Bishnoi, are being investigated for their ties to Indian intelligence officers that Canada has claimed were involved in Nijjar’s assassination.

The government of India has angrily denied the allegations—but in recent weeks, senior political leaders have seemed to defend the country’s right to use covert means against its enemies overseas. “Terrorists will be killed in their homes,” Prime Minister Narendra Modi said in one recent rally, amid reports that R&AW was eliminating terrorists in Pakistan.

For many Indians—enraged by seeing the perpetrators of terrorist attacks from 1993 bombings to 2008 Mumbai attacks sheltering in safe havens in Pakistan, or Khalistan supporters openly calling for violence from the West—the use of covert means seems a legitimate exercise of power. This is not new. Following the bombing of the Indian embassy in Kabul in 2008, then National Security Advisor MK Narayanan demanded the country pay Pakistan back “in the same coin.”

Lawyers and political philosophers familiar with the complex history of assassinations by nation-states, though, would likely urge reflection on exactly when such force might be used—and what its consequences could be. “Although I may kill a man,” the Renaissance jurist Alberico Gentili counselled the kings and princes of his violent times, “I may not do so by treachery.” They listened, for good reasons.

The laws of killing

There is, no doubt, something profoundly spurious about the moral outrage that has surrounded India’s alleged assassination campaign: The UK attempted to kill Libyan leader Muammar Gaddafi, and murdered Irish terrorists at home and abroad and Israel has long staged targeted killings. The US, lawyer scholars Luis Chiesa and Alexander KA Greenawalt have persuasively argued, ignored international law to kill co-founder of Al-Qaeda Osama Bin Laden and Colombian drug cartel boss Pablo Escobar. For its part, Russia frequently—and crudely—kills regime opponents overseas.

Like India, nation-states everywhere have struggled to deal with criminals and terrorists their adversaries choose not to act against. However, the absence of an ethical norm doesn’t mean that the many powerful arguments against covert action can be ignored.

For most of history, international relations scholar Ward Thomas writes, assassination was used without scruple. Leaders of the ancient world regarded killing for public purposes as a moral project, and murder was seen as a legitimate foreign policy tool in the 17th century.

The American political scientist Hans Morgenthau noted that “the Republic of Venice, from 1415 to 1525, planned or attempted about two hundred assassinations for purposes of its foreign policy”. These efforts were even recorded, along with payments made, in its State records. Yet, as the system of modern sovereign States began to emerge, leaders began to confront problems that called for a new set of norms.

Former Queen of England and Ireland Elizabeth I was told by her spies in 1584 that Bernardino de Mendoza, Spain’s ambassador to London, was involved in a plot to murder her and place her cousin on the throne. The queen’s spies—led by the legendary Secretary of State Francis Walsingham, whose code-name ‘M’ made its way into pop culture through novelist Ian Fleming, together with his agent John Dee, who signed his letters 007—soon crushed the plot, but the problem of the ambassador remained.

Gentili counselled the Privy Council against bringing Mendoza to trial. Ending the immunities of diplomatic agents, he warned, would unleash forces that could not be controlled. He was proved right: King James I’s ambassador to Venice, Henry Wooten, was protected against hit men dispatched by the Vatican, after he plotted to bring about a Protestant revolution.

Emmerich de Vattel, among the 18th century’s most eminent legal commentators, distilled important principles from these experiences. There were some, de Vattel accepted, who “ought to be hanged by the first person into whose hands they fall: poisoners, assassins or incendiaries may be exterminated wherever they are caught.”

Yet, to be justified, assassinations had to be proportionate to the threat and demonstrably serve the purpose of ending conflicts, rather than simply perpetuating them.

The breakdown of order

For much of the 20th century, these norms held. Few nation-states employed assassination as a tool. The Soviet Union’s Narodny Komissariat Vnutrennikh Del (NKVD) intelligence service—later the Komitet gosudarstvennoy bezopasnosti (KGB)—often killed its enemies overseas, but almost all were its own nationals, not foreigners. Locked in war with Japan in 1894-1895, China placed bounties on three Japanese generals. The one major assassination of Austrian leader Engelbert Dollfuss by Nazi Germany in 1934 was widely seen as an example of Adolf Hitler’s disregard for international norms.

In 1938, the British military attaché in Berlin, Noel Mason MacFarlane, proposed assassinating Hitler to avert a European war—but was told it would be “unsportsmanlike.” Leaders in London knew the knives of assassins could cut both ways.

Even faced with insurgencies and terrorism, most States respected the unwritten rules. Ireland often declined to extradite terrorists to the UK, Timothy Duffy has written, arguing their crimes were “political offences.” Terrorists also slipped through loopholes in the UK-US extradition agreements. The UK could have hunted down the Irish Liberation Army (IRA) terrorists but knew it would damage an important strategic relationship.

“The territory of the United States should not be allowed to become a hunting ground for foreign governments wishing to stifle dissent,” the influential New York politician Stephen Solarz would say during an official investigation of Liu’s murder. Three years after the 1984 assassination, in part because of pressure from the US, the Kuomintang ended martial law.

Israel, international law scholar Louis Rene Beres writes, was among the few states which asserted a right of preemptive self-defence to assassinate its enemies overseas. “The wide gap between the theoretical presumption of an effective centralised world legal order and the actual condition of a generally weak and decentralised pattern of enforcement,” he argued, “supports the principle of anticipatory self-defence.”

Even then, Israel needed to meet a high standard. The intended victim must be clearly “guilty of a major or egregious crime involving loss of life against the state considering assassination; that guilt be determined beyond a reasonable doubt.”

Failing the test

India has rarely met this benchmark. Nijjar’s name began to regularly surface in Indian counter-terrorism investigations in 2007. Ludhiana Police named him as one of the plotters who organised the bombing of the Shringar movie theatre that year. The prosecution, however, collapsed with a trial court acquitting three accused, while the fourth one died in prison. It led to questions being raised in Canada about the credibility of the charges against Nijjar.

In another case, an alleged associate of Nijjar and the Sikh militant organisation Babbar Khalsa International was granted bail by the Punjab and Haryana High Court, after prosecutors failed to produce evidence to support their allegations. There have been no legal proceedings in India against several of the terrorists reputed to have been killed in Pakistan.

Targeted killings can degrade terrorist threats—but it is no magic solution. Israel’s execution of its opponents did not prevent the outbreak of the First Palestinian Intifada, nor the intensifying cycle of violence that followed. Assassinations of IRA personnel intensified terrorist violence. And such killings have not ended jihadist terrorism in Iraq or Afghanistan.

Ever since 1975, when Senator Frank Church’s committee investigated abuses of power by America’s intelligence services, it’s evident that covert action programmes can degenerate into a threat to the societies they are intended to defend.

Few will dispute that India has the right to act against individuals who threaten to harm its citizens. However, the tools to kill must be controlled by State institutions, which can gather credible evidence and make reasoned judgements on whether it justifies use of covert force. Like Israel and the US, India must ensure political leaders, not spies, assume final legal responsibility for decisions to kill.

Killing can be a dangerous drug, as the experience of centuries teaches us, extracting a painful price for the short-lived emotional gratification it delivers.

Praveen Swami is contributing editor at ThePrint. He tweets with @praveenswami. Views are personal.

(Edited by Ratan Priya)