Tuesday, January 16, 2007

The Passive Personality Principle

BBC News - Spain seeks US soldiers' arrest
Spain has issued an international arrest warrant for three US soldiers accused of causing the death of a TV cameraman during the Iraq war.

Jose Couso, 37, died in April 2003 after a US tank fired on a hotel used by foreign journalists in Baghdad.

The US has admitted its tank crew fired at the Palestine Hotel but has cleared Sgt Thomas Gibson, Cpt Philip Wolford and Lt-Col Philip De Camp of blame.
How can they do that, you might be asking yourself. The person was killed in Iraq, how could Spain have any jurisdiction to file an arrest warrant?

Well, the answer is the Passive Personality Principle. This is one of the 5 customary practice principles of international law on jurisdiction. This principle holds that a state has jurisdiction when one of its own citizens or nationals is harmed, even if that harm happens in another country. The logic behind this principle is that states (countries) have the right to protect their citizens no matter where they go.

It is a controversial principle of international law and one that the United States strongly opposed until relatively recently. In 1985, when Palestinians hijacked the Achille Lauro and killed an American citizen, the US decided that it had the right to try the hijackers based on this principle. This does not, by any means, indicate that the US will recognize the right of the Spanish to try the American soldiers. They undoubtedly will not. However, the Spanish are well within their rights to try.


ade said...

Great post! Any news as to the progress of this issue? It is quite similar to the CIA renditions affair.

Mike said...

Could a convincing argument be made to support the Italian courts' assertion of jurisdiction over Amanda Knox's parents under the passive personality principle? Knox's parents accused the Italian police of mistreating their daughter when she was arrested for murder. The parents were subsequently indicted for libel of the Italian police officers, which is recognized as a crime in Italy. The allegedly false statements, however, were made in Seattle, Washington--not in Italy. Could Italy nevertheless claim that the passive personality principle applies?

The passive personality principle allows countries, in limited cases, to claim jurisdiction to try a foreign national for offenses committed abroad that affect its own citizens. Could an argument be made that the police officers are victims affected by the alleged libelous statements made by Knox's parents? If that's the case, it wouldn't matter that Knox's parents weren't in Italy at the time they made the statements.

Any thoughts?