Nabil Iqbal, a human rights lawyer who studied law at Jamia Millia Islamia in New Delhi, India, discusses the impacts of international laws, treaty obligations, and interpretations on the extraterritorial application of human rights law on the case of the killing of Hardeep Singh Nijhar...
On September 18, 2023, Canadian Prime Minister Justin Trudeau made a speech in the parliament of Canada claiming to have “credible information” on the role of “agents” of the government of India in the targeted killing of Canadian citizen Hardeep Singh Nijjar (leader of a Sikh separatist movement in India, whom India claim as a terrorist), in British Columbia, Canada. Responding to it, the Indian government denied involvement, and at this point, it is not clear whether India has any role in the killing. However, this issue raises a few questions. Could the alleged act, if proven true, be a violation of international human rights law (IHRL)? Can a state be held liable for the conduct of its “agents” outside its territory under IHRL.
First, both India and Canada are parties to various IHRL instruments, including the International Covenant on Civil and Political Rights (ICCPR). Consequently, both states are under an obligation to uphold the provisions contained within these instruments. In case of any act/omission by the states or their agents, the states may be held accountable for the violation. Moreover, the Human Rights Committee’s General Comment No. 36 on the right to life (para 15), further broadens the obligation of states by encompassing the acts of private individuals or entities (commonly referred to as non-state actors), which are engaged and authorized by the state, within the purview of state responsibility.
Second, Article 6 of ICCPR addresses the right to life, stating that everyone has an inherent right to life, and no one shall be arbitrarily deprived of it. The Human Rights Committee’s General Comment No. 36 on the right to life restricts the use of lethal force by state agents only to cases of strict necessity, which means it could be applied only for the protection against imminent threats to life, or situations of comparable gravity and imminence. Besides, targeted killing, outside of situations of armed conflict, are considered an arbitrary deprivation of life unless it is proved that the act is (a) absolutely necessary, which means the person poses a future threat to life, and (b) proportionate i.e., least restrictive measures have already been exhausted.
In the present case, the factual scenario is yet to be known; however, if it is proven that India had a role either directly or by employing/authorizing non-state actors and the act doesn’t fall under the strict necessity requirement for a deprivation of life and/or the necessity and proportionality conditions for targeted killing, then this act could be considered a violation of Article 6 of ICCPR.
Third, with regard to whether India can be held legally responsible for the extraterritorial killing of Mr. Singh Nijhar, Article 2(1) ICCPR provides that a state party has an obligation with respect to people living “within its territory and subject to its jurisdiction.” The scope of the term “within its territory and subject to its jurisdiction” has been a subject of debate and interpretation. International law and human rights law adjudicatory bodies such as the International Court of Justice and the Human Rights Committee have weighed in on the issue. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, (paras 108-111), the ICJ concluded that the ICCPR can have extraterritorial effect. Human Rights Committee (in General Comment No. 31, para. 10) has opined that a state can be held liable for an act that occurred outside its territory if the state had power and effective control over an individual or territory.
There are various interpretations regarding the circumstances in which human rights obligations may be applied extraterritorially. Those interpretations could be divided into four categories: (1) effective control over territory (Loizidou v. Turkey); (2) effective control over area/object (Al-Saadoon v. United Kingdom); (3) authority and control over an individual (Al-Skeini v. UK); and (4) functionality model.
In the present case, Canada’s allegation, might fall in the fourth category. The functional model is recognized as the jurisdiction and power held by states regarding actions that impact the fulfillment of human rights. Therefore, according to this model, states bear extraterritorial responsibilities when their actions, or actions of private entities under their jurisdiction, could result in a direct and reasonably foreseeable impact on human rights. European Court of Human Rights (ECtHR) applied this model in the case of Carter v. Russia for holding Russia responsible for the extra-territorial killing of Alexander Litvinenko by its agents. In this case, the element of proximity between the act and the resulting violation was considered as a threshold (paras 126-30, 158-116). It is pertinent to note that the observations of the ECtHR would not be binding in the present case, rather it would be persuasive. Nonetheless, Human Rights Committee (in General Comment No. 36, para. 63) reiterated the functionality model and stated that the state has an obligation toward those “whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner.” Committee on the Rights of Child (paras 9.6-9.7) has also adopted the functionality model to establish the extra-territorial jurisdiction of France.
Based on this proposition, if Canada’s allegations against India are proven to be true and a direct and reasonably foreseeable nexus between the act and resulted violation is met, then India’s act could be considered as a violation of the right to life under the ICCPR.
One important aspect to note is that Canada has at various instances denied the extra-territorial application of IHRL and restricted it to the narrowest circumstances. Thus, if Canada alleges that India is responsible for an extraterritorial violation of human rights, it should change its previous position on this particular issue.
Nabil Iqbal is an internationally trained human rights lawyer who graduated from Jamia Millia Islamia in New Delhi, India, and is currently pursuing a Master of Human Rights Degree at the University of Manitoba, Canada.
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.