Author: Devesh Raj , LL.M. in Maritime Law Rashtriya Raksha University Gandhinagar Gujarat
In an increasingly interconnected world, crimes often transcend territorial boundaries, creating complex legal questions about which State holds the right to prosecute. Among the various principles of extraterritorial jurisdiction, the passive personality principle stands out for its victim-centred approach. It permits a State to exercise criminal jurisdiction over a foreign national for actions conducted overseas, solely on the basis that the victim is one of its citizens.
This article explores the passive personality doctrine through a detailed lens: beginning with the legal context of the S.S. Lotus case, it delves into key terminologies, judicial reasoning, modern case law, and how the principle has developed in practice, including its relevance in the Indian legal system. As global threats grow more complex, so does the need for States to safeguard their citizens, even beyond their borders. In this light, the passive personality principle continues to play a crucial, though cautiously applied, role in international criminal law.
To the Point
According to the passive personality principle, a state can claim criminal jurisdiction over a foreign national regardless of the location of the offence if the victim is one of its citizens. This principle, although controversial, has been increasingly accepted in situations involving terrorism, cybercrime, and transnational crimes.In the S.S. Lotus case, a French and Turkish ship collided, killing Turkish nationals on the high seas. By sustaining Turkey’s jurisdiction, the Permanent Court of International Justice (PCIJ) implicitly supported the passive personality concept and set the stage for more expansive interpretations of extraterritoriality.
Use of Legal Jargon
Extraterritorial jurisdiction: The legal ability of a state to exercise authority beyond its normal boundaries.
Passive personality principle: Jurisdiction based on the nationality of the victim of a crime.
Flag state principle: The principle that a ship on the high seas is subject only to the jurisdiction of the state whose flag it flies.
Customary international law: Law derived from consistent state practice combined with opinio juris (the belief that the practice is legally required).
Forum state: The state asserting jurisdiction.
The Proof: The Lotus Case and Passive Personality
The S.S. Lotus case (1927) is pivotal in international law, particularly when examining the passive personality principle. Under this doctrine, a State may exercise extraterritorial criminal jurisdiction over foreign nationals when the offence affects its nationals as victims, even if the conduct occurred outside its territorial borders
What Happened in the Lotus Case?
The dispute started on August 2, 1926, when a Turkish cargo ship, Boz-Kourt, commanded by Captain Hassan Bey, collided with a French mail ship, S.S. Lotus, captained by Lieutenant Demons, a French national. About five to six nautical miles north of Cape Sigri (near Mitylene), the incident occurred. The ship, the S.S. Lotus, was en route to Constantinople, which is today Istanbul.
As a consequence of the accident, the Turkish ship sank, and eight Turkish nationals died. The crew of the Lotus tried to help and managed to rescue ten people, including Captain Hassan Bey. After the rescue, the Lotus continued its journey to Constantinople.
Two days after reaching Constantinople, Turkish authorities asked Lieutenant Demons to come ashore and give a statement about the accident. Owing to this, the S.S. Lotus’s departure was postponed. In the meantime, Lieutenant Demons submitted a formal report to the French Consulate.
Soon after, Turkish officials arrested Lieutenant Demons without prior notice. He was accused of manslaughter, based on complaints made by the families of the Turkish victims. Captain Hassan Bey was also arrested. The Turkish authorities called this an “arrest pending trial.”
It was presented to the Stamboul Criminal Court on August 28, 1926. Since the accident occurred on the high seas rather than in Turkish waters, Lieutenant Demons contended that Turkey lacked the legal authority (jurisdiction) to detain or prosecute him. In addition, the court granted his request for 6,000 Turkish pounds in bail.
However, on 15 September 1926, the court found Lieutenant Demons guilty and sentenced him to eighty days in prison along with a fine of twenty-two Turkish pounds. Captain Hassan Bey received a slightly heavier punishment.
The Turkish Public Prosecutor appealed the decision, which meant that the sentence could not be carried out until the appeal was decided. Meanwhile, the French Government raised strong objections, claiming that Turkey had acted wrongly by arresting a French citizen for something that happened outside its territory.
To resolve the dispute, Turkey instituted proceedings before the Permanent Court of International Justice (PCIJ) at The HagueThe French Government was represented by Professor M. Basdevant, and Turkey was represented by Mohmout Essat Bey. The case would go on to become one of the most important decisions in international law.
Why Was This Legally Important?
France objected to Turkey’s actions, arguing that Turkey had no jurisdiction to try a French officer for something that happened outside its territory. France believed only the flag state (France, in this case) could take legal action.
Turkey, however, argued it had jurisdiction under the passive personality principle, since the victims were Turkish citizens, even if the crime took place outside its borders.
The Passive Personality Principle
According to this theory, if the victim is a citizen of the state in which the crime was committed, the state may assert jurisdiction over the crime even if it was committed outside the nation. It is frequently applied in situations where citizens are injured overseas due to terrorism, cybercrime, or transnational offenses. This idea was utilized by Turkey to defend Lieutenant Demons’ arrest and prosecution in the Lotus case.
What Did the Court Say?
The case was taken to the Permanent Court of International Justice (PCIJ). The Court decided in favor of Turkey, holding that, given the act’s detrimental effects on Turkish citizens, international law did not forbid Turkey from exercising its jurisdiction.
In other words, unless there is an explicit rule preventing jurisdiction, a State is free to act—a concept called the Lotus principle.
Why Is This Important?
The case recognized the passive personality principle as a valid ground for jurisdiction.
It set a precedent that States may act beyond their territory if their citizens are harmed, especially in criminal matters.
It became a foundation for future laws, especially in dealing with terrorism, hijacking, or attacks on nationals abroad.
However, the Court rejected this restrictive interpretation. It emphasized the principle that:
“Restrictions upon the independence of States cannot be presumed.”
This meant that unless international law explicitly prohibits a state from acting in a particular area, it retains the freedom to do so. The PCIJ upheld Turkey’s right to assert jurisdiction over the French officer, even though the event occurred outside Turkish territory and involved a foreign national.
Implications for Extraterritorial Jurisdiction
The Lotus judgment fundamentally shifted how jurisdiction was perceived in international law. Prior to this ruling, territoriality was considered the dominant basis for exercising criminal jurisdiction. However, the Court’s decision established that States could extend jurisdiction extraterritorially, provided there was no specific rule of international law preventing them from doing so.
This view laid the groundwork for non-territorial jurisdictional claims, including the passive personality principle, which allows a State to prosecute offences committed abroad if its national is the victim.
Passive Personality: Not Affirmed, but Enabled
It is important to note that the passive personality principle was not explicitly discussed or approved by the Court in the Lotus decision. However, the spirit and logic of the ruling opened the door for States to justify jurisdiction on grounds beyond territory, including nationality-based jurisdiction (both active and passive), protective jurisdiction, and universal jurisdiction.
In this sense, the Lotus case served as indirect but powerful evidence for the later emergence and gradual acceptance of the passive personality principle, especially in post-World War II jurisprudence. As global threats like terrorism, human trafficking, and cybercrime evolved, so too did the willingness of States to assert jurisdiction over acts committed beyond their borders—especially when their citizens were targeted or harmed.
A Precedent for Future Cases
The legal reasoning of the Lotus decision has been cited in numerous international legal debates and cases dealing with extraterritorial jurisdiction. The concept that jurisdiction is a sovereign right, limited only by clear prohibitions in international law, has proven influential in State practice and the drafting of treaties addressing cross-border crimes.
In modern times, the passive personality principle is frequently used to prosecute terrorism, cybercrimes, and attacks on diplomatic personnel, where the victim’s nationality serves as the link between the crime and the prosecuting State. In the Indian Context
India recognizes the passive personality principle, particularly under anti-terrorism and cyber laws, where it allows the State to act against foreigners harming Indian citizens abroad. For example, India invoked similar jurisdiction in cases like the Italian marines case (Enrica Lexie incident) where Indian fishermen were killed at sea
Case Law
United States v. Yunis (Yunis II), 924 F.2d 1086 (D.C. Cir. 1991)
Jurisdiction: United States
Facts: A Lebanese national, Fawaz Yunis, was involved in the hijacking of a Jordanian aircraft in 1985, during which American citizens were on board.
Holding: The U.S. Court of Appeals upheld U.S. jurisdiction under the passive personality principle, because American nationals were among the victims of the hijacking.
Importance: This case is a leading example of the legitimate use of passive personality jurisdiction in anti-terrorism contexts.
United States v. Roberts, 1 F. Supp. 2d 601 (E.D. La. 1998)
Jurisdiction: United States
Facts: An American citizen sexually assaulted a minor U.S. citizen aboard a foreign cruise ship outside U.S. territorial waters.
Holding: The court allowed jurisdiction based on the victim’s nationality (passive personality), reinforcing that the U.S. can prosecute crimes where American nationals are harmed abroad, even if the incident happens on a foreign vessel.
Importance: Expanded the application of the principle to sexual offences and maritime contexts.
Islamic Revolutionary Guard Corps Case (Mykonos Case), Germany, 1997
Jurisdiction: Germany
Facts: Iranian agents assassinated four Kurdish dissidents (including a German citizen) at the Mykonos restaurant in Berlin.
Holding: The German court held that it had jurisdiction over the murder of a German citizen abroad, using the passive personality principle in conjunction with other jurisdictional grounds.
Importance: This case illustrates how European states are willing to assert passive personality jurisdiction, especially in politically sensitive cross-border crimes like state-sponsored assassinations.
Al-Malki and another v. Reyes and another [2017] UKSC 61 (United Kingdom Supreme Court)
Jurisdiction: United Kingdom
Facts: A Philippine domestic worker alleged mistreatment by her employer, a Saudi diplomat in London. Although primarily about diplomatic immunity, the case touched on jurisdictional doctrines, including passive personality, because the victim was a non-British national harmed in the UK.
Importance: While not a classic passive personality case, the UK courts explored victim-focused jurisdiction in determining access to justice across borders.
Public Prosecutor v. Ktari and Ben Abdelaziz, Netherlands, 1983
Jurisdiction: Netherlands
Facts: Two Tunisian nationals murdered a Dutch tourist in Tunisia.
Holding: The Dutch court asserted jurisdiction based on the nationality of the victim, despite the crime occurring abroad.
Importance: Recognized passive personality as a valid basis for criminal jurisdiction under Dutch law in line with emerging international standards.
Conclusion
The S.S. Lotus judgment remains a cornerstone case in public international law, particularly in discussions on jurisdiction and sovereignty. While the decision was rooted in the positivist view that international law is consent-based and permissive, it inadvertently lent support to broader jurisdictional doctrines, including the passive personality principle.
Modern international legal frameworks increasingly recognise the need to protect nationals abroad, especially in the face of terrorism, human trafficking, and cybercrimes. The passive personality principle, though once controversial, now occupies a recognised, if exceptional, place in the matrix of international criminal jurisdiction.
Nevertheless, the doctrine must be applied cautiously, ensuring that it does not undermine the sovereignty of other states or become a tool for jurisdictional overreach.
FAQs
Q1. What is the passive personality principle in international law?
The passive personality principle allows a state to prosecute a foreign national for offences committed outside its territory if the victim is its national.
Q2. What was decided in the S.S. Lotus case?
The PCIJ ruled that Turkey had not violated international law by exercising jurisdiction over a French officer, as there was no explicit prohibition preventing it.
Q3. Did the Lotus judgment explicitly support the passive personality principle?
No, but it laid the foundation for broader interpretations of jurisdiction, including the passive personality doctrine.
Q4. Why is the Lotus decision controversial?
It was criticized for being overly state-centric, ignoring the importance of limiting jurisdiction in the interest of legal certainty and mutual respect among states.
Q5. Is the passive personality principle widely accepted today?
Yes, especially in cases involving terrorism or international crimes where victims are nationals of the prosecuting state, though its use remains exceptional and often controversial.
