passive personality jurisdiction

The principle of passive personality jurisdiction in international law allows a state to assert criminal jurisdiction over individuals who commit crimes abroad when the victim of the crime is a national of that state.

In simpler terms, it means that if a citizen of State A is a victim of a crime committed by a national of State B in State C, State A can, in certain circumstances, claim the right to prosecute the national of State B.

Here’s a breakdown of the key aspects of this principle:

• Focus on the Victim’s Nationality: Unlike other bases of jurisdiction like territoriality (where the crime occurs within the state’s borders) or active personality (where the perpetrator is a national of the prosecuting state), passive personality jurisdiction hinges on the nationality of the victim.
• Extraterritorial Application: This principle allows a state to extend its legal reach beyond its physical borders to address harm caused to its citizens abroad.
• Controversial Basis of Jurisdiction: Passive personality jurisdiction is one of the more debated bases for asserting jurisdiction. Historically, common law countries were often wary of it, viewing it as a potential overreach of state power that could infringe upon the sovereignty of the state where the crime occurred.
• Growing Acceptance: Despite the historical reservations, the principle has gained increasing acceptance in modern international law, particularly in the context of certain serious crimes such as:
  • Terrorism: States often invoke this principle when their nationals are victims of terrorist acts committed overseas (e.g., United States v. Yunis).
  • Cybercrime: Given the borderless nature of cyber offenses, states may assert jurisdiction when their citizens are targeted by cybercriminals operating from other countries.
  • Crimes Against Humanity: In some instances, this principle is being applied to cases involving grave international crimes where the victims are nationals of the prosecuting state.
  • Human Trafficking and Sexual Exploitation: States are increasingly using this principle to protect their nationals who are victims of these crimes abroad.
• Limitations and Concerns: Several limitations and concerns are associated with the passive personality principle:
  • Sovereignty of Other States: Its application must respect the sovereignty of the state where the crime took place.
  • International Comity: States should exercise this jurisdiction with restraint to avoid diplomatic friction and conflicts with other potentially interested jurisdictions.
  • Due Process: Concerns exist regarding fairness to the accused, especially if the laws and legal procedures in the prosecuting state differ significantly from those in the state where the crime was committed.
  • Double Criminality: Often, states require that the act be considered a crime in both the prosecuting state and the state where it occurred.

Examples of Application:

• The United States asserted passive personality jurisdiction in the case of United States v. Yunis (1988) against a Lebanese national who hijacked a Jordanian airliner with U.S. citizens on board.
• France has a broader application of this principle in its penal code, allowing jurisdiction over crimes committed abroad by foreigners when the victim is French.
• The Philippines asserts a form of passive personality jurisdiction under its Revised Penal Code for offenses committed outside its territory where Filipino citizens are victims.

In conclusion, while the principle of passive personality jurisdiction remains somewhat controversial, it is an evolving basis for asserting extraterritorial criminal jurisdiction, particularly in response to transnational crimes that harm a state’s nationals. Its application, however, is often subject to limitations and considerations of international law and comity.