Secondly, uniformity in all Member States would facilitate the establishment of a codified set of rules for this principle. [xxxvi] It is argued that the author is subject to the laws of a foreign country of which he is not presumed to have knowledge. Codified principles would facilitate fairness of application. [xxxvii] In United States v. Yunis[xxvii], we can see the acceptance of the principle of passive personality under national and international law. The United States prosecuted a Lebanese citizen for hijacking a Jordanian plane in the Mediterranean Sea in June 1985. The only link between the hijacking and the United States was the presence of American citizens on the plane. In March 1989, jurors in the Colombian district convicted the accused of other crimes, including kidnapping. One of the foundations of the case law was the application of the principle of passive personality. Several countries such as Greece, Italy and France have included the principle of passive personality in their penal codes. The Greek Penal Code applies this principle by limiting it to certain categories of offences; Crimes and misdemeanors. [xvi] The Italian Penal Code applies this principle to offences punishable by a maximum penalty of one year`s imprisonment.
[xvii] Editor`s note: This article deals with the principle of passive personality in general. First, there is a determination of the jurisdiction of a state under which this doctrine is established, which is the criminal and extraterritorial jurisdiction of the state. This paper first defines this principle and also refers to the Harvard research project and the draft convention on the incorporation of this principle into the domestic laws of certain countries and its application in certain judgments. The principle of passive personality has been demonstrated in the Indian context, as well as its relevance in the fight against terrorism. According to passive personality (or victim) theory, a state has prescriptive jurisdiction over anyone who violates its nationals. Responsibility depends on the nationality of the victim. However, the United States generally does not recognize this theory – despite its recitation in some cases – and it is doubtful that more than a handful of other states actually accept it as a valid principle of customary international law. [xvii] See, for example, P.C. Art. 10 (1930 as amended in 1987) (Italy) (Application of the principles of passive personality to offences punishable by imprisonment of at least 1 year) The application of the competence of the passive personality in these circumstances does not serve a clear criminal law objective.
It is highly unlikely that the prosecution of Mr. Bailey have a specific or general deterrent effect. Since jurisdiction is exercised on the basis of the nationality of the victim, the commission of the offence would be deterred only if the nationality of the targeted victim was known before committing the crime and if the victim came from one of the few States that applied passive personality jurisdiction. The effectiveness of deterrence is questionable under normal circumstances; Under such conditions, it is almost impossible to imagine that the prospect of being brought to justice in this way would inhibit a person`s behavior. The passive personality principle was developed primarily by cases around the world and not by a specific set of codified rules. [xxxi]thenewinternationallaw.wordpress.com/2013/01/30/india-v-italy-the-indian-supreme-court-decides/, last accessed 22.09.2013 The United States has also invoked this principle to assert jurisdiction over a kidnapper who captured an American hostage on foreign soil, for example during the Achille Lauro incident. The U.S. government has requested the extradition of Muhhamad Abbas Zaiden, the leader of the terrorists who hijacked the ship Achille Lauro in Egyptian waters and killed Leon Klinghoffer, a U.S. citizen.
As here, Klinghoffer`s only concession was American citizenship. Based on this link, an arrest warrant was issued charging Abbas with hostage-taking, conspiracy and piracy. [xxiv] The Harvard Research Project noted that in 1935, many countries asserted a kind of passive jurisdiction of personality. These countries were Albania, Brazil, China, Cuba, Estonia, Finland, Greece, Guatemala, Italy, Japan, Latvia, Lithuania, Mexico, Monaco, Peru, Poland, Romania, San Marino, Sweden, Switzerland, Turkey, Uruguay, Venezuela and Yugoslavia. At the time of the Harvard research project, the principle of passive personality existed in the criminal law of some countries. However, the Harvard research project did not include passive personality theory in its draft convention on jurisdiction in criminal matters, commonly referred to as the draft convention. This theory was excluded because, in his view, with some possible safeguards, the passive personality could be included in the principle of universality, and at other times overlapped with the theory of universality. [xii] While many international jurists argue that the principle is the most controversial of the five sources of jurisprudence, they also agree that the international community recognizes its legitimacy.
Most accept that the extraterritorial scope of a law on.. That principle would not be called into question under international law. [ix] Im 42. Report of the Committee on Legal Affairs, the principle of passive personality has been mentioned. It states that “some States invoke jurisdiction because the victim of a crime committed outside the territory of the State is one of its citizens. This is sometimes called the passive personality principle. This notion that nations claim the right to punish foreigners for crimes committed abroad to hurt their own nationals has no place in Anglo-American jurisprudence. [xxx] India`s use of the concept of passive personality is on a very small scale. The concept has not undergone much development in the Indian context compared to the United States.
Therefore, we cannot say that it has been rightly rejected, but we can see that it is slowly seeping into our legal system. Aus: passives Persönlichkeitsprinzip im Encyclopaedic Dictionary of International Law » Richter Higgins, Koojimans und Buergenthal in ihrem Joint Separate Opinion in the Congo vs.