Siena Anstis is a senior legal advisor at the Citizen Lab at the University of Toronto’s Munk School of Global Affairs & Public Policy.
The Canadian government should be credited for not shying away from the diplomatic fallout now unfolding after the death of Sikh independence activist Hardeep Singh Nijjar. On June 18, Mr. Nijjar was found dead inside a vehicle at a Sikh temple in Surrey, B.C., with multiple gunshot wounds. This month, Prime Minister Justin Trudeau told the House of Commons that Canadian national security bodies were investigating allegations that the Indian government was behind this killing of a Canadian citizen.
Mr. Trudeau has framed Mr. Nijjar’s killing primarily as a violation of Canadian sovereignty. If a state-sponsored killing on foreign soil did occur, Mr. Trudeau is correct – there was undoubtedly a violation.
But it is equally true that the extraterritorial killing of an activist in Canada would also be a violation of international human-rights law, which makes a human-rights-focused response critical. Framing an alleged extraterritorial killing as one primarily of state sovereignty fails to recognize the harm suffered by the deceased victim, their family, and the broader community of activists who fear for their lives.
State sovereignty is about state-to-state relations and the preservation of the Westphalian system (the principle that states have inalienable rights over their own territory). International human-rights law, on the other hand, is a legal framework to protect persons against human-rights violations by states. It recognizes and seeks to protect the rights, agency and dignity of the victim.
International human-rights treaties like the International Covenant on Civil and Political Rights (ICCPR) outline legal obligations owed by both the state in which the victim lives and by the state that undertakes the killing. Both Canada and India have ratified the ICCPR.
Extraterritorial killings outside the context of armed conflict violate the international human right to life, and cannot be justified under international human-rights law. If India was involved in Mr. Nijjar’s death, it does not matter that the country had characterized him as a terrorist.
While states – in an effort to limit their liability – have argued that they can violate the rights of those outside their territory who pose a threat to their national security, this is not the case. In 2021, the European Court of Human Rights ruled in Carter v. Russia that the Russian government was ultimately responsible for the actions of two state-sponsored Russian agents in the killing of dissident Alexander Litvinenko, even though the killing took place in London. While the United States and Israel have also tried to carve out a doctrine of justification for extraterritorial “targeted killings,” these killings have also been considered violations of international human-rights law.
International human-rights law gives rise to a number of legal obligations for Canada. The government has an obligation to protect all people within its territory or jurisdiction against human-rights violations by third parties, including foreign states. It also has a legal obligation to investigate killings in a manner that is independent, impartial, prompt, thorough, effective, credible and transparent.
Transparency is particularly important here, as Sikh activists seek answers regarding what happened. They want to know that the Canadian government will keep them safe. All too often, extraterritorial killings are insufficiently investigated, leaving communities scared and vulnerable.
Going forward, the Canadian government also has a legal obligation to pro-actively warn activists in Canada when their right to life may be in danger. This obligation is enhanced where targets of violence are human-rights defenders or prominent public figures. Further, where there is a specific threat, states are required to act urgently and effectively to protect those under threat, including adopting special measures like police protection or protective custody if consented to by the potential target. Canada is also required to anticipate and protect against other rights violations that come with transnational repression, such as extraterritorial surveillance and online harassment.
The state-sponsored killing of activists, dissidents, human-rights defenders or journalists on foreign soil are not solely issues of state sovereignty. Above all, such killings are about the deprivation of the right to life – and more broadly, freedom of expression – of the victim. It is also about the terror experienced by other similarly placed activists who believe they may be the next target and consequently cease their activism, or self-censor or isolate themselves from their work.
In a world of growing authoritarianism, a human-rights response to transnational repression is critical to ensure that activists feel safe where they live and can continue to exercise their fundamental rights without fear.