Is the government justified in targeting terrorists outside the border?

Earlier this month, following a report in The Guardian stating that the Indian government had killed about 20 people in Pakistan since 2020 as part of a broader plan to eliminate terrorists on foreign soil, Defence Minister Rajnath Singh responded that India will enter Pakistan to kill terrorists. A few days later, Prime Minister Narendra Modi, too, said that under a strong government, “atankwadiyon ko ghar mein ghus ke mare jata hai (terrorists are being killed in their homes)”. Is the Indian government justified in targeting terrorists outside the border? Rakesh Sood and Tara Kartha discuss the question in a conversation moderated by Suhasini Haidar.

Edited excerpts:

The U.S. went to Pakistan and killed Osama bin Laden in 2011; Israel’s Mossad carries out such killings. But when India or Russia do it, questions are raised, or sanctions are imposed. Do you think there are double standards when it comes to transnational killings? And is there an international rule surrounding transnational killings?

Rakesh Sood: There is no clear, legal definition in international law of targeted killings. But conventionally, there are three factors considered before carrying out targeted killings. First, whether the individual is internationally designated as a terrorist under the United Nations Security Council (UNSC) designation list. Second, whether it is difficult to get hold of this person, get them extradited, or bring them to face judicial proceedings. Third, whether it is felt that the person continues to remain engaged in terrorist activity. Then, the state may feel that it is preferable to use lethal force in a pre-emptive fashion in a precise manner so that it does not cause collateral damage. The U.S.’s killing of bin Laden would probably fall into that category of targeted killings because he ticked all these boxes. There are plenty of instances where when these three conditions were met, there was less of an international hue and cry, and when they were not met, there was more of it.

Tara Kartha: There are massive double standards. Targeted killings came post-9/11. They [the U.S.] used drone strikes and every kind of attack and not just in Afghanistan. U.S. President George Bush’s call to the world was that we [the U.S.] will attack you [terrorists] wherever you are because it’s self-defence. The underlying criterion for any such attack is self-defence. The UN allows this. Article 51 of the UN Charter speaks of the right of individual self-defence.

Also read | Encourage India, Pakistan to find resolution via talks: U.S. on alleged anti-terror ops across border

The problem with The Guardian story is that it includes assassinations, targeted killings, and extrajudicial killings all in the same basket in the same article, which is crazy. Each one has a different legal connotation to it. If we are to look at this issue, we have to look at the differences between these three in terms of international law and international humanitarian law.

Has something changed in India? In the past perhaps these operations took place quietly. But in recent times, the government has said India will chase terrorists and kill them if they go into, say, Pakistan. Is that legitimate?

Tara Kartha: It is allowed under international law and under international humanitarian law. One criterion is that it should be proportionate force. A second is when the state is either responsible for the armed attack or is unwilling or unable to stop armed attacks. At all times, the principle of self-defence remains paramount. Generally, such attacks do not occur in times of peace. That is one difference between the Pakistan and Canada cases. You could argue that India is in a state of continuous conflict with Pakistan: attacks keep taking place, you [India] have raised the issue at the UN, these people are part of your list of terrorists. So, you have gone through the judicial process within your own country, and it is also sanctioned by the UN.

Also read | Pakistan denounces ‘provocative’ remarks by Rajnath Singh

Rakesh Sood: Let’s look at the three criteria. They may be in India’s list, but they are not accepted internationally as terrorists. Second, there is no prospect of getting them extradited to come and face judicial proceedings. Now, you [India] could say that you are in a state of conflict with Pakistan. I don’t know if that is legally correct, but politically you could maintain that. But you’re not in a state of conflict, legal or political, with Canada and the U.S. Self-defence and pre-emption implies that there is a continuing and immediate threat. So, did Gurpatwant Singh Pannun constitute an immediate threat? That is an intelligence assessment. How you tick these three boxes would depend on the justification or credibility for a targeted killing.

Many would point out that the U.S. has carried out drone strikes and killed thousands of people, including civilians, in what it saw as targeted killings and has never been held accountable. Mossad has killed people in the UAE and other countries. So, why has the U.S. made such an issue of this?

Rakesh Sood: Well, that is bilateral politics. But you’re right. The U.S. is guilty of having conducted targeted killings with less than adequate justification, without having felt the need to tick the three boxes. Israel, too, has done this many times. But Israel has the backing of the U.S., and the U.S. is a permanent member of the UNSC.

What do India’s anti-terror comments mean for the country’s foreign policy | In Focus podcast

Tara Kartha: I think in the case of Canada, it was also a question of domestic politics. And since (Prime Minister) Justin Trudeau brought it up, I think the U.S., which may have preferred to have dealt with it quietly, was forced to come out. But if you notice, even after that the U.S. has not used it in a threatening manner. They’ve said they are unhappy. And yes, there are double standards, but by and large, you don’t carry out attacks in the territories of what you call ‘friendlies’.

India’s response in each of the three cases has been different. How do you see these responses? Are ties the only factor?

Tara Kartha: In the case of Pakistan, I think what the Defence Minister said is, if you do this, we will reserve the right to walk in. He added that we would prefer to have good relations with our neighbours. Canada has not given any evidence to us. And at least one of those killings was of a local organised crime leader who was already in a lot of trouble in Canada. In the case of the U.S., when India says it is carrying out an investigation in national interest, if indeed someone from RA&W (Research and Analysis Wing) did do this, I can guarantee that the National Security Adviser (NSA) was not involved because this was such a ham-handed operation.

Also read | New India knows how to protect its borders, keep people safe: Adityanath

Rakesh Sood: It is purely a reflection of politics and ties with each other. The Defence Minister is speaking to a country that is in the throes of elections. Politicians at the best of times are not necessarily precise with their use of words, and at election times, even less so. India’s responses reflect the status of importance that is attributed to ties with each of these countries and the current state of play in each of the countries.

Do you think these allegations could have a long-term impact on India-U.S. ties?

Rakesh Sood: It depends on how we deal with it and if we are able to carry conviction to the U.S. system. Canada has not shared any information or intelligence with us or at least nothing to the extent that would lead us to undertake an investigation of the kind that we are doing via-a-vis the U.S.’s information that has been shared with us. With Pakistan, it is open season.

Tara Kartha: There has been some impact so far because all this was said publicly. But overall, no, our ties won’t get severely affected because of our ties in other areas, especially innovation and defence technology. In the case of Canada, he [Trudeau] made the error of saying this in public. If he had probably said it in private, our reaction may have been quite different.

In the last few months, we have seen certain comments being made. For example, the U.S. Senate Foreign Relations Committee has talked about transnational killings and categorised India with Russia and Iran. What should the government do?

Tara Kartha: There was a hearing on Pakistan in the U.S. Congress. And one of the Congressmen, who was from Texas, intervened to raise this issue of alleged killings. There are constituencies in the U.S., like Texas, which have a large Pakistani population. That will reflect in their domestic policy. While it is worrisome, we have to take it in our stride going forward.

Watch | Transnational killings — The legal rights and wrongs

We need to pull up our international image and strategic messaging. For some reason we seem to think it’s not necessary and that our economy speaks for itself, and our words speak for themselves. We need to do a major PR exercise not because XYZ has said something but because it makes sense.

Rakesh Sood: India-U.S. ties are at a government to government level. The U.S. NSA is going to visit India. Democracies speak with multiple voices because there are multiple constituencies. A statement by one section of society doesn’t necessarily reflect the totality of the relationship between the two nations. One way to respond to criticisms is to ignore them. But that is difficult in a relationship between two democracies. So, we need to be able to take action that would address this. Whether this is in terms of more effective communication is something that the government has to evolve. In a democracy, we have multiple channels of communication. We need to be able to make better use of these.

Listen to The Hindu Parley podcast

Rakesh Sood is a former diplomat who served as Ambassador to Afghanistan, France, and Nepal. He was also Special Envoy of the Prime Minister on Disarmament and Nonproliferation until 2014; Tara Kartha is the director for research at the Centre for Land Warfare Studies. She spent 17 years at the National Security Council Secretariat, which sits at the apex of India’s national security architecture