Social media commentators seem happy if terrorists wanted by India are killed by Indian agents. As they mock the Guardian article they write “to punish PM Modi for this illegal act, I shall vote for him again, to teach him a lesson”.
But social media comment, or even public opinion, or indeed American standards is not the appropriate bar. The law is. And the law may well be on India’s side. (If indeed India had anything to do with the killings.)
The issue of extrajudicial killings, especially in the context of cross-border actions against terrorists, raises complex questions under international law. The recent statements attributed to Indian officials about actions in Pakistan reflect a controversial area of both legal and diplomatic discourse, touching upon the sovereignty of nations, the right to self-defense, and the principles governing the conduct of hostilities.
International law prohibits the arbitrary deprivation of life, which includes acts categorized as extrajudicial killings. This prohibition is enshrined in every major human rights treaty and has achieved jus cogens status, meaning it is a norm from which no derogation is permitted. In essence, jus cogens norms are accepted and recognized by the international community of states as a whole as being fundamental to the maintenance of the legal order.
The concept of an "extrajudicial killing" is grounded in the principle that the right to life is fundamental and protected under international law. The definition of what constitutes an extrajudicial killing can, however, be contested and subject to interpretation in litigation, reflecting the complexity and sometimes the ambiguity in international legal norms. For instance, in the United States, the Torture Victim Protection Act establishes civil liability for extrajudicial killings, based on these international law principles, yet courts sometimes express uncertainty about the precise meaning of this term.
When considering the legality of state actions that might fall under the category of extrajudicial killings, such as targeted attacks against terrorists in foreign territories, several legal frameworks come into play. These include the law of self-defense under the United Nations Charter, international humanitarian law (IHL), and international human rights law (IHRL). The law of self-defense permits states to defend themselves against armed attacks, including through pre-emptive strikes in certain situations. However, any action taken must adhere to the principles of necessity and proportionality. IHL, applicable during armed conflicts, also stipulates that combatants must distinguish between military targets and civilians, with direct attacks against the latter being prohibited.
The discussion around India's alleged actions in Pakistan highlights the delicate balance between combating terrorism and adhering to international legal standards. While states have a legitimate interest in protecting their citizens from terrorist threats, they must navigate the constraints imposed by international law, particularly the prohibitions against arbitrary deprivation of life and the respect for the sovereignty of other states.
What might Chanakya think? Chanakya's teachings emphasize the importance of saptanga (the seven limbs of the state) and the maintenance of the mandala (circle of states) theory. In this context, he might suggest that actions such as extrajudicial killings, particularly in another country's territory, require careful consideration of the diplomatic repercussions and the balance of power within the regional mandala. The principle of realpolitik, which Chanakya is often associated with, would dictate a careful analysis of the risks and benefits of such actions, ensuring they serve the long-term interests of the state.
On Ethics and Morality: While Chanakya's approach is often viewed as pragmatic and sometimes ruthless, it is grounded in the concept of dharma (duty/righteousness). From this perspective, he might argue that the state's primary duty is to protect its citizens from harm, which could justify taking decisive actions against threats. However, he would also likely advocate for adherence to dharma in such actions, suggesting that they should be conducted with a clear understanding of the ethical implications and the potential for unintended consequences.
On Military Strategy: Chanakya’s Arthashastra contains extensive discussions on the use of force, including covert operations and assassination as tools of state policy. He might view extrajudicial actions against terrorists as a form of covert operation, necessary under certain circumstances. However, he would also stress the importance of strategic planning, ensuring that such actions are part of a broader strategy to secure the state and its interests.
On Governance and Justice: Central to Chanakya's teachings is the idea that the ruler (or government) has a responsibility to ensure justice and the welfare of the people. In discussing extrajudicial killings, Chanakya might highlight the importance of ensuring that such actions do not undermine the rule of law or the principles of justice that underpin a stable and prosperous society. He would likely advise that any action taken by the state should be measured, justifiable, and in accordance with both domestic and international law, to maintain the moral authority of the state.
