As India and Canada trade diplomatic punches over allegations of India targeting Khalistani activists in Canada (allegations India strongly denies), there is a suggestion in some sections of the popular Indian media that an ability to openly carry out extra-territorial assassinations is in itself an indicator of international power. This fundamentally misunderstands the manner in which power interacts with and is used to shape international law.
The post-World War II international legal order was organised around two core principles —non aggression, aimed at minimising the unilateral use of force in general, and legal equality between sovereign states, irrespective of their relative size or actual power. Neither principle has been particularly palatable to the US, which has long sought to push international law into a structure that would grant it a first among equals status, especially on the right to use force.
Hegemonic international law is a term coined by Detlev Vagts to explain a situation where despite the formal equality between sovereign states, the structure of international law operates to further the interests of one single country – the hegemone. The hegemone (the US in Vagts’ formulation) sits as the single dominant power in the world and interacts differently with international law as compared to other states. This is of particular relevance to the field termed customary international law, where norms evolve to reflect state practice. When the hegemone goes against customary international law, their influence is usually sufficient, over time, to ensure that their interpretation becomes the new rule. In the words of former American attorney general William H. Barr, “as I understand it, the way to change international law is to break it.”
The evolution of customary international law surrounding extra-territorial assassinations provides a fascinating study in this. For decades, targeted assassinations overseas were considered to be a serious violation of the territorial sovereignty of the country on whose soil the assassination was carried out. In 1985, when Israel attacked PLO offices in Tunisia, and claimed the right to self defence, this was strongly condemned by the UN Security Council. While 14 members voted in favour of the resolution, the US abstained. Similarly, in 1988, when Israel assassinated PLO executive committee member Khalil Al Wazir in Tunis, in an operation that killed one Tunisian citizen and three Palestinians, the operation was widely condemned, with the security council voting again (with the US abstaining) to strongly condemn Israel’s violation of Tunisia’s territorial sovereignty.
The US has never fully accepted these restrictions with respect to themselves. In 1986, George Shultz, Reagan’s Secretary of State, asserted that the US had the right to use military force against states that “supported” terrorism. At the time, the position was decried by international law experts, but that didn’t stop the US from relying on Shultz’s interpretation later that year when they bombed Tripoli after a terrorist attack on a Berlin nightclub that killed American nationals. Condemnation from other states ensured that this interpretation did not, at the time, become customary international law. In 1993, the US bombed the headquarters of the Iraqi Secret Service after an assassination attempt on former President George H.W. Bush in Kuwait, and claimed this amounted to self defence. The claim received very little support internationally. As late as 1998, strikes by the United States against Al Qaeda bases in Afghanistan and Sudan (in response to the embassy bombings in Kenya and Tanzania) were condemned by the NAM as violative of territorial sovereignty.
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The September 11 attacks on the US were to change this. In the immediate aftermath of the attacks, instead of acting unilaterally, as some expected them to, the US deliberately chose to use the global wave of outrage and sympathy to approach the security council. The rhetoric they used was broadly designed to suggest the possibility of new alliances organised around deliberately vague terms like “civilisation” and curbing the threat of terrorism. They sought (and obtained) something far broader than specific authorisation to use force against Al Qaeda bases in Afghanistan. Pursuant to resolution 1373, the UN security council provided the US with an arguably unlimited mandate to use force in self defence against terrorism. Resolution 1373 also set up a counter terrorism council which then effectively exported US domestic law on terrorist financing almost entirely into international law via a financial sanctions mechanism. These resolutions were to go on to become the bedrock of the US “war on terror” and the sweeping violations of territorial sovereignty that have since accompanied it, including the US drone strike assassination program that has killed more than 3,000 people in Pakistan, Afghanistan, Yemen and Somalia, and the 2012 assassination of Osama Bin Laden in Pakistan.
This year, the assassination of Ismail Haniyeh, the Chairman of the Hamas Political Bureau in Iran and the assassination of the secretary general of Hezbollah, Hassan Nasrallah, in Lebanon (an operation which destroyed fully populated apartment blocks and reportedly killed dozens of people) have been unquestioningly classified as “self defence” by the US, the UK and several other countries – a mark of just how far the US has been able to push the law since the 1980s.
Two aspects of this process are worth keeping in mind – first, by constantly asserting that their actions fall squarely within the framework of international law (even when they do not), the US was able to use its influence to push out the boundaries of customary international law, and second, the US, by choosing to use 9/11 to create a framework that would permit extraterritorial assassinations if tied to “terrorism”, a vague term without any real globally accepted definition, retained near complete control over determining the situations where such assassinations would become acceptable.
It might be tempting for rising powers to believe they can successfully replicate the actions of the US or worse, naively believe that the norms that the US has changed are now equally applicable to everyone, but this isn’t the case. In hegemonic international law, the power to modify international law to their own liking remains with one single hegemone, simply because no other state has both the international influence and control over institutions required to modify norms at will. The hegemone does not share this power or interact with other states on the basis of equality or partnership. The hegemone offers unequal patron-client relationships where the client receives security and other benefits in return for their cooperation with the aims of the hegemone. This fundamental inequality is characteristic of all the U.S’ relationships with other countries – from the relatively powerful NATO states to less powerful client states elsewhere.
To maintain this hegemony, the US cannot ignore any non US led use of these expanded norms on extraterritorial assassination. President Biden’s invitation to Sikh activist groups to the White House to reassure them of their safety on US soil earlier this year during Prime Minister Modi’s US visit is a fairly sharp signal of this disapproval. Reports that far away from the bombast surrounding India’s current relationship with Canada, Indian authorities are quietly cooperating with the US as they investigate very similar charges on American soil, indicate that this message has been received.
Countries that do not seek to become US client states have long been aware of the unfairness of this hegemonic international order. Nowhere is the brutal nature of this hegemony as evident as in the genocide in Gaza, where intensified targeting of civilians and the renewed destruction of civilian infrastructure like hospitals, schools and places of worship, are all still doggedly being termed “self defence” by the US and its allies.
The question remains as to how best to combat it. Does one attempt to replicate the American pattern of creating one’s own norms of international law – an endeavour that apart from being morally repugnant requires substantially more international influence than is realistically available today to any other country – or does one return to reasserting (and following) the basic principles of non aggression and the sovereign equality of states?
In 1979, the UN General Assembly adopted a resolution reinforcing the principle of the sovereign equality of all UN member states and rejecting specifically the principle of hegemonism in international relations (the US voted against the resolution which also condemned Zionism). While India may have wandered a long way from here geopolitically, we would do well to remember that an open free for all with no norms benefits only the most powerful state in the room. A return to level headedness and the preservation of what’s left of international law might well serve us better.
Sarayu Pani is a lawyer by training and posts on X @sarayupani.
Missing Link is her new column on the social aspects of the events that move India.
