Much ink has been spilled on the diplomatic row between India and Canada due to the latter’s outlandish and unsubstantiated allegations against the former’s involvement in the murder of Hardeep Singh Nijjar — a Khalistani separatist leader — on Canadian soil. In this context, it is pertinent to examine the international law dimensions of the developments.
If one translates Canada’s accusation into international law, Ottawa’s imagined case seems to be that New Delhi has violated the United Nations (UN) Charter in two ways. First, India acted on Canadian soil without Canada’s permission, thus violating Canada’s territorial integrity. Second, India used force against Canada’s territorial integrity or political independence, thus flouting Article 2(4) of the UN Charter. Of course, for all of this, Canada must first show that the act of killing Nijjar is attributable to India under international law. But these are severe charges, and it is provocative for Canada to make them without offering solid and irrefutable evidence. India has fervidly, and rightly so, rejected this charge, saying that carrying out such targeted killings is not India’s policy.
Instead of accusing India, Canada should look within and examine its record of compliance with international law towards India. India has relentlessly flagged to Canada that Khalistani separatists are using Canadian territory to propagate not just the secession of India but also to plan and plot terrorist activities in India. India has also asked for the extradition of Khalistani terrorists. Canada has done precious little to assuage India’s concerns despite the existence of an extradition treaty between the two countries signed in 1987. On the contrary, leading Canadian political figures openly sympathise with these Khalistani separatists.
In this context, Canada should remember the UN Security Council (UNSC) resolution 1373, adopted in 2001 immediately after the dastardly 9/11 terror attacks in the United States. The resolution, which is binding on all countries as per Article 25 of the UN Charter, not only denounces terrorism but also any form of State support, active or passive, to terrorism. Specifically, paragraph 2(d) of resolution 1373 requires States to “prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other States or their citizens”. Accordingly, Canada is under international legal obligation to act against Khalistani separatists inciting terrorism against India, not play down their activities as a free speech issue. Unfortunately, Canada seems unable or unwilling to act against these Khalistani groups.
Recently, there have been instances of the sanctity of Indian diplomatic premises in Canada being breached. It is critical to recall that Articles 22(1) and 31(1) of the Vienna Convention on Diplomatic Relations (VCDR) and the Vienna Convention on Consular Relations (VCCR), respectively, enshrine the principle of inviolability, i.e. the sanctity of diplomatic and consular premises. Canada, under Article 22(2) of the VCDR is under a “special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity”. It is this special duty of protection that Canada has failed to perform.
Not just this. Khalistani separatists have run a sustained campaign against Indian diplomats, including issuing death threats to them, with the intention of creating a climate of fear and intimidation and disrupting diplomatic and consular work. India’s diplomats on Canadian soil enjoy protection under international law, including as per the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons including Diplomatic Agents. Under this convention, the threat to commit murder or any violent act against a diplomat is a crime. Article 8 of the convention makes these crimes “extraditable offences”.
India is very much within its legal right to seek the extradition of these extremists.
In sum, Canada is under an international law obligation to act against the Khalistani elements operating on its soil and comply with its international obligations towards India.
Prabhash Ranjan teaches at the Faculty of Legal Studies, South Asian University. The views expressed are personal