top of page
  • Shaharyaar Shahardar

How Covert Actions Violate International Law– The Perspective from the Principle of Non-Intervention

This article is authored by Shaharyaar Shahardar, a 3rd Year, B.A., LL. B (Hons.) student from Gujarat National Law University.


Introduction

On 18 June 2023, Hardeep Singh Nijjar, a Sikh separatist advocate was killed by an unidentified gunman in British Columbia. His killing resulted in an intense diplomatic tussle between India and Canada creating a significant impact on their relations. A month following this incident, the Canadian Prime Minister accused Indian intelligence agencies of spearheading the killing of Nijjar. India has denied this accusation. Nevertheless, some important concerns arise when looked at from an academic perspective, specifically international law. One such question is regarding the lawfulness of ‘covert actions’. In this article, the author addresses this question by analysing the position of the law in light of the principle of non-intervention. He further attempts to highlight possible recourses which could be availed of by parties aggrieved by such state behaviour. Finally, the author calls for more collaborative and cooperative efforts from the international community to combat the problem of covert actions.

Non-Intervention and State Sovereignty: Connecting the Dots

International law is based on the fundamental principle of state sovereignty. Jean Bodin made the first explicit formulation of sovereignty in De Republica. The principle as Crawford says, represents the “basic constitutional doctrine” of international law.[1] According to Max Huber, “sovereignty in the relations between states means independence.” This independence refers to exercising complete jurisdiction over events taking place in one’s domestic territory. The concept of state sovereignty received further recognition by Article 2(3) and Article 2(4) of the United Nations Charter (“UN Charter”) which requires Member States to utilize peaceful means in the settlement of disputes and to refrain from the use of force. It is important to acknowledge that, the principle of non-intervention is a logical corollary to that of state sovereignty.[2] But what constitutes an ‘intervention’ is nowhere set out clearly and another question which is important to address is would all interventions constitute a breach of international law?

Determining the Wrongfulness of Intervention

As per Oppenheim, an essential element of intervention is coercion which in effect deprives the state intervened against of control over the matter in question. Moreover, in Nicaragua v. United States, the International Court of Justice authoritatively asserted that “intervention is wrongful when it uses methods of coercion regarding such choices, which must remain free ones.”[3] It is also pertinent to note that such an intervention need not rise to the level of physical invasion. For instance, in Nicaragua, although no physical intervention was directly made by the US, the ICJ ruled that it violated international law obligations not to violate another State’s sovereignty by supporting the rebels. Moreover, in contemporary times, non-intervention is “widely accepted by the majority of jurists as the correct rule of international law and the correct behaviour of nations in their international relations.”[4]Besides imbibing this principle in its Charter, the United Nations (“UN”) has time and again maintained its position in favour of non-intervention through several UN General Assembly (“UNGA”) resolutions. The first such resolution specifically prohibiting covert action was Resolution 2131 (XX). The eighth preambular of its paragraph states that “direct intervention, subversion and all forms of indirect intervention are contrary” to the principles of the UN and, “consequently, constitute a violation of the Charter of the United Nations.” Similarly, UNGA Resolution 2625 underscores that “armed intervention and all forms of interference or attempted threats against a state’s political, economic, or cultural elements are violations of international law.” Thus, it can be concluded that any intervention having an element of ‘coercion’ fundamentally contradicts the principle of non-intervention, making it transgressive of state sovereignty and thereby violative of international law.


The Coercive Nature of Covert Actions

With the foundational framework thus established, we shall commence our discussion on covert action. It is imperative to distinguish covert action from the two fundamental functions of intelligence agencies, which are the collection and analysis of foreign intelligence. When we refer to covert action, we mean a broad spectrum of coordinated coercive measures, short of direct military assault, secretly exercised by one state to influence the sovereign affairs of another.[5] What sets it apart from other forms of espionage or intelligence activities is its inherently coercive nature. These actions are aimed at influencing conditions in foreign countries, with the intention that the sponsoring country’s role remains concealed and unacknowledged publicly. Covert action relies on secrecy to evade accountability and international reprisals.

Nonetheless, the defining feature of covert action is its coercive nature. As exemplified in the case of Canada, the involvement of Indian intelligence agencies in the killing of Hardeep Singh Nijjar, if true, exhibits the perfect example of employing coercive tactics to achieve this objective. While some scholars do cite various exceptions (like national security) to this principle, it is worth noting that the UN has not recognized many of the traditional exceptions to the doctrine of non-intervention. Instead, it has confined justifications for interventionist behaviour to instances involving collective action by the UN or other regional organizations, or cases of immediate self-defence in response to an armed attack.

Response and Remedies: A Two-Pronged Approach

The reconciliation between parties in case of violations arising out of active interference could be either “response-based” or “remedy-based”. The best option available to parties in such situations would be to resolve the dispute bilaterally or through mediation before it escalates. But most countries respond by severing diplomatic ties. This includes the expelling of ambassadors or other diplomat(s). We saw something similar in the case of India and Canada, where the intelligence officers from India posted in Canada were sent back to India. In return, India expelled Canadian diplomats. There are other political actions, and economic actions, inter alia, which are resorted to during such circumstances. But all these can be broadly categorized under the response-based approach.

When it comes to following a remedy-based approach or in simple terms having recourse to remedies within an international framework, this in itself would depend upon a myriad of factors which most importantly includes the treaty obligations of countries. For example, in the case of the Nijjar controversy, Canada could proceed against India under Article 6 of the International Covenant on Civil and Political Rights (“ICCPR”) to which both countries are signatories. Similarly, Canada can make its case before the International Court of Justice by alleging a violation under Article 2(4) of the UN Charter.

Conclusion

The examination of international law, taking into account both traditional and non-traditional perspectives, underscores the inherent illegality of covert actions due to their coercive nature. When seen from the traditional legal principles, covert actions are deemed unlawful because they infringe upon the sovereignty of states. While as, from a non-traditional standpoint, covert actions are seen as violations of international law because they deviate from the fundamental principles outlined in the UN Charter and other international agreements. To address the challenges related to covert operations, there are several crucial measures that the international community should consider. First and foremost, states must be compelled to uphold their obligations under the UN Charter and other pertinent international treaties, refraining from actions that encroach upon the sovereignty of other states. Furthermore, the international community should continue to advocate for transparency and dialogue as effective tools for resolving conflicts. Diplomatic channels should be actively utilized to address grievances and misunderstandings, thereby preventing the escalation of disputes into covert actions. Additionally, there is a pressing need for stronger mechanisms and enforcement of international law when covert actions are suspected. This may entail enhancing the role of international bodies such as the International Court of Justice in adjudicating such cases.

Endnotes: [1] Crawford, J. and Brownlie, I., Brownlie’s Principles of Public International Law (6th ed. OUP), p.447 [2006]. [2] Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. U.S.), Merits, Judgment of 27 June 1986, ICJ Rep. 14 (hereafter Nicaragua), para. 202. [3] Ibid at para. 205. [4] Jaro Mayda, Non-Intervention: The Law and Its Important In the Americas by Ann Van Synen Thomas and A. J. Thomas, Jr., 8 W. Rsrv. L. Rev. 227, p.75 [1957]. [5] Nunn, K.B., The Legality of Covert Action Under Contemporary International Law. La Raza L. J., 1, pp.139-166 [1984].

143 views0 comments

Comments


bottom of page