4.3.3 Passive personality
Some states have asserted ‘passive personality’ jurisdiction, which is determined by the nationality of the victim. For instance, in the Lotus case, Turkey’s additional ground for claiming jurisdiction was that the victims were Turkish. The potential application of this principle is far reaching and controversial. However, its application does help address the issue highlighted in 1985 when the Italian cruise ship, the Achille Lauro, was hijacked in Egyptian waters by Palestinian terrorists demanding the release of Palestinian prisoners by the Israeli government. Their only victim was a Jewish, US national. At the time, Israel, the state against whom the act of terrorism was directed, did not have any jurisdiction and so couldn’t take action.
However, in recent years the passive personality principle has begun to receive limited international recognition and it has been incorporated into international agreements; treaties addressing the various aspects of terrorism now, on occasion, encompass the passive personality principle.
Box 5 UN Convention Against Torture and Other Cruel, Inhuman Treatment or Punishment 1984
Article 5 states that:
Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:
- a.When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State.
- b.When the alleged offender is a national of that State.
- c.When the victim is a national of that State if that State considers it appropriate.