Boris Lvin (bbb) wrote,
Boris Lvin

Passive Personal Principle

В развитие темы о германском ордере на арест сотрудников ЦРУ возник вопрос о правовых основаниях такого поступка. Ведь то, в чем их обвиняют, произошло в Македонии.

Выясняется, что помимо принципа общей юрисдикции, применимого к особо тяжким преступлениям и в определенной степени подкрепленного рядом международных соглашений (в том числе конвенцией о захвате заложников), существует и т.н. "passive personal principle", позволяющий защищать своих граждан за рубежом.

Принцип очень сомнительный и шаткий, еще более сомнительный, чем принцип общей юрисдикции по особо тяжелым преступлениям.

Похоже, что основной источник этого принципа в настоящее время - это решение окружного суда по делу Фаваза Юниса, февраль 1988 года, подтвержденное в 1991 году апелляционным судом того же округа (ссылка на это дело - например, здесь:

Имеет смысл сохранить соответствующие пассажи из решений этих судов.

1) Из решения окружного суда (сноски внесены прямо в основной текст):

Passive Personal Principle

This principle authorizes states to assert jurisdiction over offenses committed against their citizens abroad. It recognizes that each state has a legitimate interest in protecting the safety of its citizens when they journey outside national boundaries. Because American nationals were on board the Jordanian aircraft, the government contends that the Court may exercise jurisdiction over Yunis under this principle. Defendant argues that this theory of jurisdiction is neither recognized by the international community nor the United States and is an insufficient basis for sustaining jurisdiction over Yunis.

Although many international legal scholars agree that the principle is the most controversial of the five sources of jurisdiction, they also agree that the international community recognizes its legitimacy. Most accept that "the extraterritorial reach of a law premised upon the ... principle would not be in doubt as a matter of international law." Paust, Jurisdiction and Nonimmunity, 23 Va.J. of Int'l Law, 191, 203 (1983). More importantly, the international community explicitly approved of the principle as a basis for asserting jurisdiction over hostage takers. As noted above, supra p. 9, the Hostage Taking Convention set forth certain mandatory sources of jurisdiction. But it also gave each signatory country discretion to exercise extraterritorial jurisdiction when the offense was committed "with respect to a hostage who is a national of that state if that state considers it appropriate." Art. 5(a)(d). Therefore, even if there are doubts regarding the international community's acceptance, there can be no doubt concerning the application of this principle to the offense of hostage taking, an offense for which Yunis is charged. See M. Bassiouni, II International Criminal Law ch. 4 at 120.

Defendant's counsel correctly notes that the Passive Personal principle traditionally has been an anathema to United States lawmakers. [FN8. However, defendant improperly relies on United States v. Layton, 509 F.Supp. 212, 215 (N.D.Cal.1981) for the proposition that the United States categorically rejects this principle. In that case, involving the murder of American citizens in Jonestown Guyana, the Court merely noted historic opposition to the theory. It explicitly declined to address the legitimacy of the principle finding that jurisdiction was permissible on the basis of three other principles.] But his reliance on the Restatement (Revised) of Foreign Relations Laws for the claim that the United States can never invoke the principle is misplaced. [FN9. The Restatement provides that "A State does not have jurisdiction to prescribe a rule of law attaching a legal consequence to conduct of an alien outside its territory merely on the ground that the conduct affects one of its nationals." Restatement (Revised) of Foreign Relations Law § 402.] In the past, the United States has protested any assertion of such jurisdiction for fear that it could lead to indefinite criminal liability for its own citizens. This objection was based on the belief that foreigners visiting the United States should comply with our laws and should not be permitted to carry their laws with them. Otherwise Americans would face criminal prosecutions for actions unknown to them as illegal. [FN10. The case most widely cited for the United States' rejection of the passive personality principle is known as the Cutting case, 1887 For.Rel. 751 (1888, reported in 2 J.B. Moore International Law Digest 232- 40 (1906). In that case, the Secretary of State protested the Mexican authority's assertion of jurisdiction over an American national seized while traveling in Mexico. The American was prosecuted for writing an article in a Texas newspaper criticizing a Mexican national. The Mexican authorities indicted him for criminal libel.] However, in the most recent draft of the Restatement, the authors noted that the theory "has been increasingly accepted when applied to terrorist and other organized attacks on a state's nationals by reason of their nationality, or to assassinations of a state's ambassadors, or government officials." Restatement (Revised) § 402, comment g (Tent.Draft No. 6). See also McGinley, The Achillo Lauro Affair-Implications for International Law, 52 Tenn.L.Rev. 691, 713 (1985). The authors retreated from their wholesale rejection of the principle, recognizing that perpetrators of crimes unanimously condemned by members of the international community, should be aware of the illegality of their actions. [FN11. While it might be too much to expect the average citizen to be familiar with all of the criminal laws of every country, it is not unrealistic to assume that he would realize that committing a terrorist act might subject him to foreign prosecution. See Note, Bringing the Terrorist to Justice, 11 Cornell Int'l L.J. 71 (1978).] Therefore, qualified application of the doctrine to serious and universally condemned crimes will not raise the specter of unlimited and unexpected criminal liability.

Finally, this case does not present the first time that the United States has invoked the principle to assert jurisdiction over a hijacker who seized an American hostage on foreign soil. [FN12. At least one Court has explicitly relied on the passive personality principle to assert jurisdiction over foreigners committing crimes against U.S. nationals overseas. United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir.1984) (Columbian charged with conspiracy to murder DEA agent). ("The nationality of the victims, who are United States government agents, clearly supports jurisdiction.")] The government relied on this very principle when it sought extradition of Muhammed Abbas Zaiden, the leader of the terrorists who hijacked the Achillo Lauro vessel in Egyptian waters and subsequently killed Leon Klinghoffer, an American citizen. As here, the only connection to the United States was Klinghoffer's American citizenship. Based on that link, an arrest warrant was issued charging Abbas with hostage taking, conspiracy and piracy. Id. at 719; See also N.Y. Times, Oct. 16, 1985 § 1 at 1 col. 6. [FN13. Only recently, the Justice Department announced it had withdrawn the arrest warrant issued against Abbas after reviewing the outstanding indictment and weighing the fact that the defendant had been convicted and sentenced in absentia in an Italian Court. See Wash. Post, Jan. 17, 1988.]

2) Из решения апелляционного суда:
The district court concluded that two jurisdictional theories of international law, the "universal principle" and the "passive personal principle," supported assertion of U.S. jurisdiction to prosecute Yunis on hijacking and hostage-taking charges. See Yunis, 681 F.Supp. at 899-903. Under the universal principle, states may prescribe and prosecute "certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism," even absent any special connection between the state and the offense. See Restatement (Third) of the Foreign Relations Law of the United States §§ 404, 423 (1987) [hereinafter Restatement]. Under the passive personal principle, a state may punish nonnationals for crimes committed against its nationals outside of its territory, at least where the state has a particularly strong interest in the crime. See id. at § 402 comment g; United States v. Benitez, 741 F.2d 1312, 1316 (11th Cir.1984) (passive personal principle invoked to approve prosecution of Colombian citizen convicted of shooting U.S. drug agents in Colombia), cert. denied, 471 U.S. 1137, 105 S.Ct. 2679, 86 L.Ed.2d 698 (1985).

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