Canada’s international law options

India is violating FATF’s counterterrorism financing, anti-money laundering laws to stifle dissent

The state-sanctioned murder of Hardeep Singh Nijjar, a Canadian citizen, by India on Canadian soil in June 2023 resulted in a cri de coeur by Canadian Prime Minister Justin Trudeau in the Canadian House of Commons as well as in a UN General Assembly session about allegations of the assassination directed at the agents of the Indian government. The tone and tenor of the aggrieved PM was saturnine while asking for cooperation by the Indian government to “get to the bottom of the issue”. The riposte by the Indian government was a classic in its brevity as well as hubris. “Absurd” was the choice of word by the Indian government while dignifying the request of the Canadian PM through a brusque response.

The above response is expected out of a country that refuses to be part of the international system and international law. The global power competition unfortunately has given a regional gendarme role to India in pursuit of geopolitical one upmanship in South Asia and Indo-Pacific region. The Indian hauteur is a product of its domestic politics as well as its external relations. Domestically India is in the grip of a religious ideology that is redefining Indian nationalism through ostracisation of minorities. An intolerant strain of Hindutva nationalism has taken over Indian politics with BJP as its political face. Internationally it has been handed a carte blanche to cock a snook at all sane counsel because of its status as a pawn in the service of global power to contain another global power.

India has been consistently violating FATF’s counterterrorism financing and anti-money laundering laws to stifle dissent and to attack INGOs working for the protection of human rights of minorities. Amnesty International (AI) has recommended in a recent report that FATF should consult all those INGOs that have suffered at the hands of Indian misuse of FATF laws during recent evaluation of Indian compliance with FATF guidelines. AI specially mentioned draconian laws like Unlawful Activities Prevention ACT, Prevention of Money Laundering Act, and Financial Contribution Regulation Act which should be repealed in the interest of an inclusive and equitable foreign investment regime.

Coming soon before the start of the Mutual Evaluation Process of FATF for India in first week of December, the report is a damning indictment of India’s human rights record and misuse of FATF laws. The Modi government has already put itself in the cross hairs of international scrutiny for money laundering due to concessions given to corporate cronies, like Gautam Adani, who have been exposed as the biggest violators of Anti Money Laundering regime by the US short-seller Hindenburg’s report. Rules-based order and international law therefore appear to be an anathema to India that has the gall to poo pooh a Five Eyes verified report on Nijjar’s assassination. Instead of showing remorse and gravitas the Indians chose to accuse Canada of harbouring the terrorists on its soil.

Canada has already withdrawn 41 diplomats after India threatened to strip them of their diplomatic immunity and has halted its consular activity in Chandigarh, Mumbai and Bengaluru. The US and the UK have condemned Indian insistence on reduction of Canadian diplomatic presence in India and have urged it to cooperate with Canada in its investigation attempts into the murder of the Canadian Sikh. But unfortunately the geopolitical expediencies have prevented the West from applying the requisite pressure to compel India to cooperate with the Canadian government in the murder investigations. What is clearly evident is that India will never accept its culpability in murder and would always stonewall all international efforts to bring the murderers to justice.

What then are the legal options according to international law with Canada? International law has been exposed as an effete instrument to provide justice to the aggrieved especially to the weak. PM Trudeau referred to the murder as “an unacceptable violation of the Canadian sovereignty”. The question is: what legal recourse could Canada seek under international law? The emphasis on sovereignty and not on individual human rights betokens a Canadian stance against the extraterritorial applicability of the International Humanitarian Law. That leaves Canada to invoke the Article 2(4) of UN Charter that prohibits states from interfering with force in the territorial integrity of other states and along with Article 51 that permits any action under the “right to individual or collective self defence”.

If Canadian allegations are credible then India breached Nijjar’s “right to life” under Article 6 of the International Covenant on Civil and Political Rights (ICCPR). India however is not a signatory to the First Optional Protocol to the Covenant according to which it could be brought before the Human Rights Commission of UN. Another option is the trial of the murderers under the Canadian domestic law for which the Canadian government would have to make a request for the extradition of the murder suspects. Though an extradition treaty does exist between Canada and India, only six fugitives have been returned by Canada to India till 2020 which makes Indian cooperation highly unlikely.

The next available option is the recourse to ICJ but for that the consent of one party is essential which in case of India is not expected. The invocation of the universal jurisdiction by countries such as Australia, France, the UK, the US and several others in the past and currently by Lithuania, Germany, Spain and Sweden exemplify this option. The use of ICJ option might run in trouble with a consent issue but the filing of the case by Nijjar’s family in ICCPR should not be objected by Canadian government law that prevents victims of human rights abuses abroad from bringing “suits against foreign governments and foreign agents in Canada”.

For all of the above options the foremost thing is the evidence. The Canadian government needs to first establish the attribution of the crime to the Indian government. The rules of attribution under international law are reflected in the International Law Commission’s (ILC) “Articles on State Responsibility”. Articles 5 and 8 of ILC define conditions and scenarios under which the crime can be attributed to a party. These conditions should clearly establish whether a person was acting on the instructions or under the control of the state. After establishing the attribution the evidence provided should be legally admissible and concrete.

Canada is up against heavy odds to frame an assassin state and it looks as if the diplomacy and legal suits are not going to make things easy because of the geopolitics of expediency being followed in the international political order.

Published in The Express Tribune, October 29^th, 2023.

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