By Sanjana Sahu, School of Law- KIIT University
Editor’s Note: This paper discusses the passive personality principle in general. Firstly, there is a determination of jurisdictional competence of a State under which this theory is established which is the criminal, extra- territorial jurisdiction of the State. This paper first defines this principle, further, with reference to the Harvard Research Project and Draft Convention, it speaks about the incorporation of this principle in the municipal laws in a few countries and its appliance in some case judgments. The passive personality principle has been shown in the Indian context as well as its relevance in combating terrorism.
JURISDICTIONAL COMPETENCE OF A STATE
States are allowed by International law to exercise jurisdictions upon a number of grounds, territoriality and nationality being the indispensable characteristics of Statehood.[i] These general principles were developed in 1935 by a Harvard Research project in an effort to codify principles of jurisdiction under International law.[ii]
- Territorial jurisdiction based on the theory that incidents occurring in or persons residing within territory of the State are subject to its laws.
- Personal jurisdiction based on the fact that a State has the right to extend application of its laws to its nationals even with respect to events occurring entirely abroad.
- Universal jurisdiction based on the principle that any State may exercise jurisdiction over a crime committed whatever the nationality of the perpetrators.
- Protective Jurisdiction- war crimes etc, under which the States are allowed to punish a foreign national by a State, the safety or public order which has been jeopardized by acts committed by persons outside its territory.
- Jurisdiction based on passive personality principle which enables a State to exercise jurisdiction over a foreigner in respect of an incident taking place abroad resulting in an injury to one of its nationals .[iii]
WHAT IS PASSIVE PERSONALITY PRINCIPLE?
The Harvard Research in International law describes this principle of jurisdiction with respect to crimes as “jurisdiction over offences committed against a [a State’s] nationals by whomsoever committed.”[iv]
This principle authorizes states to assert jurisdiction over offences committed against their citizens abroad. It recognizes the safety of its citizens when they journey outside national boundaries.[v]The passive personality principle asserts that a state may apply particularly criminal law to an act committed outside its territory by a person not its national where the victim of the act was its national. The principle has not been generally accepted for ordinary torts or crimes, but it is increasingly accepted as applied to terrorist or other organized attacks on a state’s diplomatic representatives or other officials.[vi]
Under the passive personality (or victim) theory, a State has prescriptive jurisdiction over anyone anywhere who injures its nationals. Jurisdiction is based on the nationality of the victim. The United States however does not recognize this theory[vii] generally- despite its recitation in certain cases- and there is a doubt whether more than handful of other States actually accepts it as a valid principle of customary international law[viii].
Although many international legal scholars that the principle is the most controversial of the five sources of jurisdiction, they also agree that international community recognizes its legitimacy. Most accept that extra- territorial reach of a law premised upon the…. principle would not be in doubt as a matter of international law.”[ix]
STATUTES RELATING TO PASSIVE PERSONALITY THEORY
There is no specific codification laid down for the passive personality principle which is still on its way of evolution. However the essence of passive personality principle can be obtained through the various laws put down.
In 1935, Harvard Law School published the results of its research concerning international criminal law (the Harvard Research Project).[x] One of the reasons that Harvard Law School commenced this research into international penal law was to create a draft convention on criminal jurisdiction. The Harvard Research project noticed that countries were using the five bases of jurisdiction in criminal cases: territoriality, nationality, protective, universality and passive personality.[xi]
At the time of Harvard Research project, the passive personality principle existed in some countries’ criminal statutes. The Harvard Research Project however did not include passive personality theory in its Draft Convention on Jurisdiction with respect to Crime commonly known as the Draft Convention. This theory was excluded as according to them with some possible safeguards passive personality could be included in universality principle and at other times it did overlap with universality theory.[xii]
The Harvard Research Project noted that in 1935 many countries asserted some type of passive personality jurisdiction. Those countries were Albania, Brazil, China, Cuba, Czechoslovakia, Estonia, Finland, Greece, Guatemala, Italy, Japan, Latvia, Lithuania, Mexico, Monaco, Peru, Poland, Rumania, San Marino, the Soviet Union, Sweden, Switzerland, Turkey, Uruguay, Venezuela and Yugoslavia.
However in a few countries it was expressly incorporated in the criminal statutes which are stated below.
Article 5 (1) (d) of the International Convention against the Taking of Hostages adopted by the General Assembly of the United Nations on 17 December 1979 gives each signatory country discretion to exercise extraterritorial jurisdiction when the offense is committed with respect to a hostage who is a national of that state if the state considers it appropriate.[xiii]
Restatement(third) of the foreign Relations Law of the United States, Section 402 which says that a State has the jurisdiction to apply laws to people not its nationals whose victims are that State’s nationals outside the territory of the State.[xiv]
Article 113-7 of the French Penal Code provides:” French Criminal law is applicable to any felony, as well as to any misdemeanor punishable by imprisonment, committed by a French or foreign national outside the territory of the French Republic, where the victim is a French national at the time of the offense.”
Section 1202 of the Omnibus Diplomatic Security & Antiterrorism Act of 1986 denotes extraterritorial criminal jurisdiction over terrorist conduct which makes it a federal crime for a terrorist overseas to kill a United States national , attempt to murder a United States national, conspire to murder a United States national or to engage in physical violence with the intent to cause serious bodily injury to a United States national or with the result that serious bodily injury is caused to a US national.
Comprehensive Crime Control Act implements the International Convention against the Taking of Hostages and its provision extends special maritime and territorial jurisdiction of the U.S to include any place outside the jurisdiction of any nation with respect to an offence by or against a national of the United States.[xv]
Various countries like Greece, Italy, and France have incorporated the passive personality principle into their penal codes. The Greek Penal Code utilizes this principle by limiting it to certain classes of crimes; felonies and misdemeanor.[xvi] The Italian penal Code applies this principle to offenses for which the maximum penalty is one year of imprisonment.[xvii]
Some countries have codified passive personality jurisdiction but require executive consent when it comes to its application. Norway requires its king’s consent before claiming jurisdiction by this principle. [xviii]Finland, Italy and Sweden also require executive consent before applying jurisdiction.[xix]
Another facet to this principle is also that countries might apply passive personality jurisdiction as well as state territoriality jurisdiction on a person at the same time resulting in double jeopardy. The Korean Criminal Code employs this principle when state territorial jurisdiction is not extended to offender, thus protecting the offender from double jeopardy.[xx]
Finland, Greece, Norway and Sweden assert this principle if the act committed is a crime in that country’s statutes. This method relieves an individual of having to know the laws of a foreign country.[xxi]
CASES INVOLVING PASSIVE PERSONALITY
Passive Personality principle has been developed mostly through cases around the world rather than any specific codified set of rules.
The leading case in this principle is the Cutting’s Case[xxii], 1886 which caused some hostility between the United States and Mexico. In Cutting’s Case, a U.S. citizen made a defamatory publication against a Mexican citizen in Texas. Mr. Cutting, an American citizen was arrested while in Mexico and convicted of an offence under Mexican law with Mexico maintaining its right to jurisdiction upon the basis of the passive personality principle. The United States strongly opposed this but there was an inconclusive end to this incident as the affected party withdrew the charges.[xxiii]
The U.S. has also invoked this principle to assert jurisdiction over a hijacker who seized an American hostage on foreign soil i.e. in the Achille Lauro incident. The U.S. government sought extradition of Muhhamad Abbas Zaiden, the leader of the terrorists who hijacked the Achille Lauro vessel in Egyptian waters and subsequently killed Leon Klinghoffer, an American citizen. As here, the only concession was Klinghoffer’s American citizenship. Based on that link, an arrest warrant was issued charging Abbas with hostage taking, conspiracy and piracy.[xxiv]
In the Lotus case[xxv], when France objected to Turkey exercising its jurisdiction over the French officers who were in charge of the French vessel Lotus which collided with the Turkish collier in the high seas, the result of which was the death of eight Turkish seamen. The Turkish Criminal Court convicted them on charges of manslaughter. Turkey applied the passive personality principle and exercised jurisdiction over the French officers whose act had affected its nationals. However when the case went to the Permanent Court of International Justice, the majority of the judges decided that Turkey could not exercise this principle as it had other grounds for holding the people liable. A strong attack on this principle was made by Judge Moore, in a dissenting opinion in this Case, since the Turkish Criminal Code provided for jurisdiction where harm resulted to a Turkish national. However, the Court did not resolve the issue and concentrated upon the objective territorial jurisdiction principle.[xxvi]
Though France had then objected to Turkey applying the principle of passive personality but in later times France had amended its statutes to exercise passive personality jurisdiction over foreigners whose acts adversely affect French nationals.
In the case of United States vs. Yunis[xxvii] , we can see the acceptance of passive personality principle both under domestic and international laws. The U.S. prosecuted a Lebanese citizen for hijacking a Jordanian aircraft in the Mediterranean in June, 1985. The only connection between the hijacking and United States was the presence of U.S. nationals on the aircraft. In March 1989, the jury in District of Colombia convicted the defendant of other crimes including hijacking. One of the bases of jurisdiction was the application of passive personality principle.
In United States vs. Benitez[xxviii], the defendant, a Colombian national, was convicted of conspiring to murder U.S. Drugs Enforcement Administration agents in Colombia .The Court held that U.S. gained jurisdiction both on passive personality and protective principles.
Judges Higgins, Koojimans and Buergenthal in their Joint Separate Opinion in the Congo vs. Belgium (Arrest Warrant case) noted that in this particular context, the passive personality principle ‘today meets with relatively little opposition.’[xxix]
PASSIVE PERSONALITY PRINCIPLE IN INDIAN CONTEXT
There is no codification of passive personality in any of the statutes in India. But by virtue of the Constitution of India which is in consonance with the standards of International law we can presume as well as verify in a few cases that it has also accepted the principle of passive personality.
In the 42nd Law Commission Report, passive personality principle has been mentioned. It is stated that “some states assert jurisdiction because the victim of a criminal act committed outside State’s territory is one of its citizens. This is sometimes described as passive personality principle. This notion according to which nations claims the right to punish aliens over offences committed abroad to the injury of its own nationals has found no place in Anglo-American jurisprudence.”[xxx]
The arrest and prosecution of two Italian navy marines (Massimilano Latorre and Salvatore Girone), on board the Enrica Lexie, in connection with the death of two Indian fishermen (Valentine and Ajesh Binki) had the SC deciding whether passive personality jurisdiction could be applied to the Italian marines.
In this Judge Chelameswar observed that States only have limited jurisdiction outside of the territorial sea that are limited by UNCLOS. This limit was not described and the Chief Justice asserted Indian jurisdiction over the incident based on this limited grant that that jurisdiction itself is based on “the legitimate interests” of the State asserting its authority. He then used the passive personality and the objective territorial principles as evidence of this existing jurisdiction.[xxxi]
Further India also tried to exercise this principle in the context of 26/11 attacks which took place. India’s demand for extradition of two Pakistan nationals suspected to be involved in the attacks fell on deaf ears. India had a clearly lawful claim of jurisdiction under the passive personality principle, since most of the victims of the terrorist attacks were Indians nationals. Pakistan, conversely, had a similar lawful claim under the active personality principle, because the alleged perpetrators sought by India were its nationals. Since there is once again no hierarchy between these two principles, Pakistan seemed to hold a slight advantage for it had custody of the presumed criminals.[xxxii]
India’s usage of the concept of passive personality is at a very low scale. The concept has not seen much development in the Indian context as compared to the U.S. Hence, we cannot say that it has been out rightly rejected, but we can see it seeping slowly into our legal system.
APPLICATION OF PASSIVE PERSONALITY PRINCIPLE TO COMBAT TERRORISM
Terrorism has been on the rise in the past few decades. Terrorist activities are carried out mostly aiming at the victim’s nationality. Here passive personality principle has evolved through the decades. Now we find its maximum applicability in cases relating to international terrorism. By the use of this principle countries now can exercise jurisdiction over those people whose acts affect their own countrymen. The international scope of the terrorist activities has led to the acceptance of this theory worldwide. Asserting passive personality does not infringe upon the sovereignty status of a State with territorial jurisdiction as in cases of ordinary torts and crimes.[xxxiii] The passive personality principle would prove to be better in combating terrorism if applied uniformly in all States. Though many States have accepted the validity of this principle yet its implementation still lags behind as compared to other principles.
Firstly, uniform practice would ensure extradition so that the interested country could prosecute the offender. When deciding to extradite an alleged offender, one of the main considerations is jurisdiction.[xxxiv] If the laws of the country that has possession do not provide for, or conflict with, the type of jurisdiction with the country requesting extradition, extradition may be refused. So with uniform application of this principle, countries would be willing to extradite offenders to states asserting jurisdiction.[xxxv]
Secondly, with uniformity in all states it would be easier to establish a codified set of rules relating to this principle.[xxxvi] The argument provided is that the offender is subjected to the laws of a foreign land of which he is not presumed to have knowledge. With codified principles it would be easier to provide fairness in its use.[xxxvii]
Finally, this personality would aid in better protection of a country’s nationals when they are abroad. This would deter offenders from doing acts in those states where the state would unlikely prosecute them. Since extradition would be easier for those states seeking jurisdiction, thereby increasing prosecution, it would result in reduction of targeting those nationals whose nations practice passive personality jurisdiction.[xxxviii]
The actual scenario being just the acceptance of the concept of the passive personality and not its implementation, the conferring of uniformity status still seems distant. We have had a general idea about passive personality principle. It is clearly visible that this principle is in need of a lot of development and needs to be presented in a certain codified manner. This theory needs to be incorporated like all other principles to every nation so that it would help in combating not only terrorism but other unnecessary evils which find their way through because of incapacity in establishing jurisdiction.
Edited by Hariharan Kumar
[i] It was noted in the Wood Pulp case that ‘the two undisputed bases on which state jurisdiction is founded in international law are territoriality and nationality’, 4 CMLR 901 at 920; 96 ILR, p.148.
[ii] See Harvard Research in International Law, Jurisdiction with respect to crime, 29 Am. J. INT’L L. 474 (1935)
[iii] International Law and Human Rights, 18th edition, Central Law Agency, Dr. S.K. Kapoor, pg. 215, 216
[iv] Prescriptive and enforcement jurisdiction are considered in Harvard Research in International Law, Jurisdiction with Respect to Crime, 29 AM. J. INT’L L. 474 (1935) [hereinafter cited as Harvard Research]; RESTATEMENT(SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, §§ 6-7 (1962). Both provide that while states may validly prescribe rules affecting the conduct of people outside their territorial limits, they may only enforce those rules within their own territory.
[v] International Criminal Law- Cases and Materials, 3rd edition, Jordan P. Haust, Michael Scharf, Leila Sadat, M. Cherif Bassiouni, Jimmy Gurule, Bruce Zagaris, Carolina Academic Press, pg 184,185
[vi] Restatement (third) of the foreign relations law of the United States,1987, Section 402(g).- Jurisdiction To Prescribe-Comment
[vii] But see United States vs. Yunis, 681 F. Supp at 900,902 at n.8( in context, with reference to treaty based crimes)
[viii] See … DeSchutter , Problems of Jurisdiction in the International Control and Repression of Terrorism, in INTERNATIONAL TERRORISM AND POLITICAL CRIMES, 377, 383 (M. Bassiouni ed. 1975)
[ix] Paust, Jurisdiction and Non-Immunity, 23 Va. J of Int’l law, 191, 203 (1983)
[x] Research in International law under the Auspices of the Faculty of Harvard Law School, Jurisdiction with respect to Crime, 29 Am.J INT’L LAW 443,445 (Supp. 1935)
[xi] Harvard Research Project, supra note 10,
[xii] Harvard Research Project, supra note 10, at 445, 578
[xiii] Article 5. 1. Each State party shall take such measures as may be necessary to establish its jurisdiction over any of the offences set forth in Article 1 which are committed. (d) With respect to a hostage who is a national of that State, if that State considers it appropriate.
[xiv] § 402. BASES OF JURISDICTION TO PRESCRIBE
Subject to s 403, a state has jurisdiction to prescribe law with respect to
(1) (a) conduct that, wholly or in substantial part, takes place within its territory;
(b) the status of persons, or interests in things, present within its territory;
(c) conduct outside its territory that has or is intended to have substantial effect within its territory;
(2) the activities, interests, status, or relations of its nationals outside as well as within its territory; and
(3) Certain conduct outside its territory by persons not its nationals that are directed against the security of the state or against a limited class of other state interests.
[xv] See section 1203 of the Criminal Code, 18 USC para 1203, Pub L. No 98- 473, ch. 19, para 2002(a), 98 Stat. 1976, 2186.
[xvi] See, e.g., POINKOS NOMOS art 7(1990)( Greece)
[xvii] See, e.g., C.P. art 10 (1930 as amended 1987) (Italy) ( applying passive personality principles to crimes where punishment is at least 1 year of incarceration)
[xviii] STRFL s. 13 (1902, as amended 1961) (Nor) Under Norwegian law, “legal proceedings [relying on the passive personality principle] can be initiated only by the decision of the King.” THE NORWEGIAN PENAL CODE (H. Schjoldager trans. 1961) (American Series of Foreign Penal Codes, No. 3)
[xix] RL Ch.1, S.6 (1889 as amended 1989) (Fin.); C.P. art 10 (1930 as amended 1987) (Italy); BRB ch. 2, S.5 (1989)( Swed)
[xx] See Korean Criminal Code art. 6 (1983) (Kor.)
[xxi] See United States vs. Yunis, 681 F. Supp 896, 902 n. 11 (D.D.C 1988) ( noting that it might be too much to expect individuals to know laws of every country ), appeal docketed , No. 89- 3208.( D.C. Cir Nov 30,1989)
[xxii] J.B. Moore, Digest Of International Law, Washington, 1906, vol 2, p. 228
[xxiii] See U.S. Foreign Relations, 1886, p. viii: 1887, p. 757 ; and vol II, p. 1114
[xxv] PCIJ, Series A, No. 10,1927, p. 92
[xxvi] PCIJ, Series A, No.10, 1927, pp 22-3
[xxvii] 681 F. Supp. 896, 903 (D.D.C 1988)
[xxviii] 741 F. 2d 1312 (11th Cir 1984)
[xxix] Rosalyn Higgins, Themes and Theories, pg 1179, Oxford University Press, 2009 edition
[xxx] http://lawcommissionofindia.nic.in/1-50/Report42.pdf, last viewed on 22/09/2013
[xxxii] http://jurist.org/forum/2008/12/india-pakistan-extraditions-after.php#, last viewed on 22/09/2013
[xxxiii] See, the Lotus case ( France vs. Turkey), PCIJ (ser A.) No.10, at 35, 44-45, 101-02 (1923)
[xxxiv] M. Bassiouni, International Extradition, See e.g. Yunis 681 F. Supp at 901.
[xxxv] Blakesley, A Conceptual Framework for Extradition and jurisdiction over extraterritorial crimes, 1984 UTAH L. REV 685,744
[xxxvi] Supra Note 20
[xxxvii] Supra Note 22
[xxxviii] See United States v. Yunis at 902