Passive Personality Jurisdiction in International Law
- Edmarverson A. Santos
- 2 days ago
- 37 min read
Introduction
Passive Personality Jurisdiction allows a state to assert criminal jurisdiction over conduct committed abroad by a foreign national when the victim is one of its nationals. Its connecting factor is neither territory nor the offender’s nationality, but the legal bond between the injured individual and the victim state. That makes the doctrine narrower than universal jurisdiction, more controversial than active personality jurisdiction, and more intrusive than ordinary territorial prosecution.
The principle sits uneasily within the law of jurisdiction because it transforms nationality into a basis for projecting criminal law beyond the state’s borders. A state may protect its nationals abroad through consular assistance, diplomatic channels, and, in limited circumstances, diplomatic protection under the law of state responsibility (PCIJ, 1924; ICJ, 1970). Criminal prosecution is a different legal act. It subjects a foreign accused to the penal authority of a state where the conduct did not occur and where the accused may never have been present.
That distinction explains why passive personality was historically treated with caution. If a victim's nationality alone were enough for every offense abroad, ordinary crimes could generate competing prosecutions by several states. The territorial state would retain the strongest factual and legal connection, but the victim state could still claim authority because one of its nationals was harmed. The result would be a fragile model of concurrent jurisdiction, with risks for sovereignty, foreseeability, evidence, extradition, and fair trial rights.
Modern practice has moved the doctrine away from outright rejection, especially in cases involving terrorism, hostage-taking, attacks on aircraft or ships, and other serious transnational offenses. In those settings, the victim’s nationality may be part of the offender’s targeting logic rather than a factual accident. When a person is attacked because of the state they represent or the passport they hold, the victim state’s jurisdictional claim is stronger, particularly if the territorial state is unwilling or unable to prosecute effectively (McCarthy, 1989; Watson, 1993).
The doctrine remains limited. Passive personality is primarily a basis of jurisdiction to prescribe; it does not authorize arrest, investigation, search, or evidence-gathering inside another state without consent (PCIJ, 1927). Even where domestic law clearly extends criminal jurisdiction abroad, prosecution must respect legality, double criminality where relevant, equality of arms, protection against multiple proceedings, and the accused’s ability to contest evidence. Its strongest form is not a general right to punish harm to nationals abroad, but a restrained jurisdictional basis for serious offenses where victim nationality supplies a genuine legal connection.
1. Jurisdiction to Prescribe, Not to Enforce
Passive personality is first a claim of jurisdiction to prescribe. The state asserts that its criminal law applies to conduct committed abroad because the victim was one of its nationals. That is primarily a legislative claim, later exercised through adjudication if the accused is lawfully before the forum’s courts. It is not, by itself, a license to exercise police powers on foreign territory.
That distinction controls the whole doctrine. International law has long treated enforcement jurisdiction more strictly than prescriptive jurisdiction. A state may legislate with extraterritorial effects in defined circumstances, but it cannot arrest a suspect, search premises, seize documents, compel witnesses, or conduct criminal investigations inside another state without that state’s consent or another recognized legal basis. The Lotus judgment is often cited for the proposition that states may exercise jurisdiction unless international law prohibits it, but even that permissive language did not authorize one state to perform enforcement acts in another state’s territory (PCIJ, 1927).
This matters because passive personality becomes legally distorted when extraterritorial prescription and extraterritorial enforcement are treated as one act. A victim state may enact a statute covering the killing, hostage-taking, or serious assault of its nationals abroad. It still needs custody over the accused, extradition, surrender, deportation, mutual legal assistance, or cooperation with the territorial state before a prosecution can function in practice. Without that separation, passive personality turns too easily into a claim of unilateral power rather than a limited basis for criminal jurisdiction.
1.1 Victim nationality as the legal link
The legal link in passive personality is the nationality of the victim. Nationality is not merely a personal attribute; it is a legal bond through which a state identifies members of its political community and, in certain contexts, asserts a legitimate interest in harm done to them abroad. The doctrine does not say that the offense occurred in the victim state. It says that the injury to a national supplies a sufficient connection for that state to prescribe criminal consequences, at least for some categories of conduct.
The strength of that connection varies. If a tourist is injured in an ordinary local dispute abroad, the victim’s nationality may be little more than an accident of fact. The territorial state remains the natural forum because the conduct, evidence, witnesses, and immediate public order interest are located there. The passive personality claim is stronger when nationality forms part of the offense’s rationale. Terrorist attacks, hostage-taking, aircraft hijackings, and attacks on diplomats or travelers may be designed to harm nationals of a particular state precisely because of that nationality. In those cases, the victim-state connection is not incidental; it is built into the wrong itself.
That distinction keeps the doctrine from becoming a loose appeal to sympathy. The relevant question is not whether the victim state feels responsible for its citizens abroad. States often do. The question is whether victim nationality creates a legally meaningful connection between the forum state and the offense. Seriousness, targeting, the failure or inability of other competent states to prosecute, and the foreseeability of liability all affect the strength of that claim (Watson, 1993).
1.2 What the principle does not cover
Passive personality does not absorb every legal mechanism through which a state may respond when its nationals are harmed abroad. Consular assistance may help a detained, injured, or vulnerable national communicate with authorities, obtain documents, or secure basic support. Diplomatic protection allows a state, under strict conditions, to espouse a claim against another state for an injury to one of its nationals caused by an internationally wrongful act (PCIJ, 1924; ICJ, 1970). Political protest, evacuation, compensation diplomacy, and requests for investigation belong to different legal categories.
Criminal prosecution is different. It does not merely assist the national or complain about another state’s conduct. It subjects a foreign accused to the penal authority of the victim state. That involves arrest, indictment, trial, punishment, and the coercive machinery of criminal law. For that reason, a state’s protective interest in its nationals cannot be converted automatically into passive personality jurisdiction.
Nor should passive personality be confused with civil claims arising out of the same facts. A victim may seek damages in a domestic court, attach a civil claim to criminal proceedings in some legal systems, or pursue compensation through administrative schemes. Those remedies may overlap factually with a criminal case, but they do not define the jurisdictional basis for punishment. Passive personality concerns the state’s authority to criminalize and prosecute foreign conduct because of the victim’s nationality. That narrow function is what gives the doctrine its legal force, and also what makes its limits necessary.
2. Its Place in the Law of Jurisdiction
Passive personality belongs to the broader law of jurisdiction, where international law organizes the circumstances in which a state may regulate conduct, persons, property, or events connected to more than one legal order. The usual categories are territoriality, active personality, passive personality, protective jurisdiction, and universal jurisdiction. These categories are not watertight compartments. Real prosecutions often rely on more than one basis, especially where violence crosses borders or where the offense is committed on ships, aircraft, digital networks, or against internationally mobile victims.
The doctrine is easiest to understand when placed beside the other principles rather than treated as an odd exception. Territoriality begins with the place of the conduct or its effects. An active personality follows the nationality of the offender. Protective jurisdiction concerns harm to the state’s security or core governmental functions. Universal jurisdiction rests on the character of certain offenses and the interest of the international community. Passive personality is different because the victim’s nationality supplies the connecting factor.
That difference explains both its attraction and its danger. It can close a jurisdictional gap where a national is deliberately targeted abroad, and no other state acts effectively. It can also multiply claims if used for ordinary crimes with no special connection to the victim state. The principle is most defensible when it remains part of a disciplined jurisdictional framework, not when it is treated as a free-standing power to punish any harm to nationals abroad.
2.1 Territoriality as the primary basis
Territorial jurisdiction remains the primary basis of criminal authority. The state where the conduct occurred normally has the closest connection to the offense: its law governed the public space in which the act took place, its authorities are positioned to investigate, and the local community bears the immediate effect of the crime. Evidence, witnesses, surveillance material, forensic records, medical reports, and police files are usually found there.
Passive personality does not displace that claim. It creates a concurrent basis of jurisdiction, not a superior one. If the territorial state investigates and prosecutes genuinely, the victim state’s separate claim becomes harder to justify as a practical matter, even if domestic law permits it. The strongest use of passive personality arises where territorial prosecution is unavailable, ineffective, politically compromised, or unable to address the specific transnational character of the offense.
This point is central to sovereignty. Territorial jurisdiction is not a courtesy that other states may disregard whenever one of their nationals is harmed. It is one of the basic organizing principles of the international legal order. Passive personality operates within that order only if it respects the territorial state’s primary role and remains attentive to cooperation, extradition, mutual legal assistance, and the risk of duplicative proceedings.
2.2 Active personality and protective jurisdiction
Active personality is often confused with passive personality because both rely on nationality. The difference is direct. An active personality allows a state to regulate the conduct of its nationals abroad. Passive personality concerns foreign offenders who harm the state’s nationals abroad. The first is based on the offender’s legal bond to the state; the second is based on the victim’s bond.
Protective jurisdiction has a different function. It applies where conduct abroad threatens the state itself, such as counterfeiting currency, espionage, attacks on state security, falsification of official documents, or certain acts directed against governmental functions. The protected interest is not the private injury of a national but the institutional security of the state. Some terrorism cases blur the boundary because an attack on nationals abroad may also be framed as an attack on the state’s political interests. The classification still matters because each basis carries a different legal rationale.
Modern terrorism legislation often combines several grounds at once. A statute may cover attacks on nationals, attacks by nationals, attacks against government facilities, aircraft registered in the state, or offenders later found in the state’s territory. Calling all of this passive personality would be imprecise. A serious analysis must identify which connecting factor is doing the legal work in each situation.
2.3 Universal jurisdiction and treaty jurisdiction
Passive personality is not a universal jurisdiction. Universal jurisdiction is attached to the nature of the offense. Piracy is the classic example; genocide, war crimes, crimes against humanity, and torture are often discussed in modern debates, though their jurisdictional treatment depends on treaty law, domestic legislation, and contested questions of custom. The central idea is that some offenses are of concern to the international community as such, so the forum state does not need to show that its own national was the victim.
Passive personality works differently. Its claim is national, not universal. The forum state asserts jurisdiction because the victim belonged to its national community. That may be a strong connection in certain serious cases, but it is not the same as saying every state may prosecute the offense regardless of any national link.
Treaty jurisdiction adds another layer. Counter-terrorism conventions, hostage-taking rules, aircraft safety instruments, maritime security treaties, and other transnational crime regimes often require or permit states to establish jurisdiction on multiple grounds. Some include the victim’s nationality as an optional or accepted basis. That treaty practice supports the legitimacy of victim-based jurisdiction within defined regimes. It should not be overstated as automatic proof that passive personality has become an unlimited rule of customary international law. Treaty consent shows what states accepted for particular offenses, under particular instruments, with particular cooperation duties.
3. Why the Doctrine Was Contested
Passive personality became controversial because it shifts the focus of criminal jurisdiction away from the place of the offense and the identity of the offender. The territorial state may have no connection to the victim’s nationality, while the victim state may have no connection to the place where the conduct occurred. Critics saw the doctrine as a way for states to export criminal law into foreign territory by using the victim’s passport as the legal bridge.
The objection was strongest when the doctrine was applied to ordinary crimes. A robbery, assault, road accident, or private fraud committed abroad normally belongs to the legal order of the place where it occurred. If the victim’s nationality alone were enough to trigger prosecution in the victim state, the same act could attract several competing legal claims. That concern explains why passive personality was historically described as one of the most contested bases of extraterritorial jurisdiction (Harvard Research, 1935; Watson, 1993).
The problem is not only theoretical. Criminal jurisdiction has diplomatic consequences. A prosecution by the victim state may imply that the territorial state failed to act, acted inadequately, or cannot be trusted to deliver justice. In politically sensitive cases, that implication can damage bilateral relations, complicate extradition, and turn a criminal case into a dispute over sovereign authority.
3.1 The sovereignty objection
The sovereignty objection begins with a basic proposition: the state where the conduct occurs has the primary authority to regulate, investigate, and punish that conduct. Territorial jurisdiction is not merely convenient. It reflects control over public order, access to evidence, and responsibility for events inside the state’s legal space.
A victim-state prosecution may appear intrusive when the territorial state is willing and able to investigate genuinely. The injury to a foreign national does not erase the territorial state’s own legal interest. Local police may have collected evidence, domestic courts may be available, and local law may already provide a complete basis for prosecution. In that setting, passive personality risks duplicating or second-guessing the territorial state’s criminal process.
Sovereignty should not be dismissed as formalism. It is the legal condition that prevents criminal jurisdiction from becoming a competition of national preferences. Without territorial priority, a single event could produce overlapping indictments based on the victim’s nationality, the offender’s nationality, the place of arrest, the location of evidence, or the political interests of affected states. Passive personality becomes defensible only when it operates as a limited concurrent basis, not as a claim to override territorial authority.
3.2 Fairness to foreign defendants
The fairness objection concerns the accused rather than the state. A foreign defendant may never have entered the victim state, used its services, accepted its protection, or directed conduct toward its territory. If the only link is the nationality of the person harmed, the accused may face prosecution by a legal system with which they had no meaningful prior relationship.
That does not make passive personality inherently unlawful. Many serious offenses are criminal in every legal system, and a person who kills, kidnaps, hijacks, or commits a terrorist attack cannot plausibly claim surprise that the conduct attracts prosecution somewhere. The harder question is whether prosecution by the victim state was reasonably foreseeable. The answer depends on the nature of the offense, the clarity of domestic legislation, the existence of treaty rules, and whether nationality was incidental or part of the targeting.
Fairness also has a practical dimension. Evidence may be located abroad. Witnesses may speak another language, live under another legal system, or be unavailable to the defense. Police files, forensic material, and crime-scene records may remain under the control of the territorial state. A court may have jurisdiction in principle and still be a poor forum if the accused cannot test the case effectively. Passive personality cannot be separated from legality, equality of arms, and the practical ability to defend against the charge.
3.3 The Lotus problem
The Lotus case is often invoked in discussions of extraterritorial jurisdiction, but it should be used with precision. The Permanent Court of International Justice adopted a permissive view of state jurisdiction, emphasizing that restrictions on state freedom could not simply be presumed (PCIJ, 1927). That reasoning has made Lotus attractive to states defending broad jurisdictional claims.
Lotus was not a clean endorsement of passive personality. The case concerned a collision on the high seas between a French vessel and a Turkish vessel, and Turkey’s prosecution of a French officer after Turkish nationals died. The jurisdictional analysis involved the effects of the incident on a Turkish ship and the special legal context of maritime jurisdiction. Treating Lotus as a general approval of victim-based jurisdiction would overstate the case.
Its real value lies elsewhere. Lotus shows the tension between a permissive model of jurisdiction and the later demand for a more disciplined connecting factor. Modern international law has not fully abandoned the idea that states retain room to legislate extraterritorially, but broad assertions now require closer attention to reasonableness, competing jurisdictional claims, treaty rules, and due process. Passive personality sits exactly at that point of tension: it may be lawful in defined circumstances, but it cannot rest on nationality as an automatic answer to every foreign offense.
4. Passive Personality Jurisdiction Today
Passive personality can no longer be treated as a doctrine rejected in all circumstances. State practice, domestic legislation, and treaty regimes have given it a firmer place in modern criminal jurisdiction, especially for serious transnational offenses. That acceptance remains limited. The principle is strongest where the offense is grave, cross-border in character, and connected to the victim’s nationality in a meaningful way.
The contemporary position is better described as controlled acceptance rather than full normalization. Many states now recognize some form of victim-based jurisdiction, but often through statutes limited to terrorism, hostage-taking, aircraft and maritime violence, organized transnational crime, or offenses against nationals abroad subject to conditions. The doctrine remains more vulnerable when used for ordinary local crimes with no targeting element, no treaty basis, and no failure by the territorial state.
The central question has shifted. The issue is no longer whether passive personality is always prohibited. It is when the victim’s nationality supplies a sufficient legal connection, and what safeguards must accompany prosecution. That framing avoids two weak positions: rejecting the doctrine as obsolete despite modern practice, or treating it as an unrestricted power whenever a national is harmed abroad.
4.1 Serious offenses and ordinary crimes
The seriousness of the offense affects the strength of the jurisdictional claim. Terrorism, hostage-taking, aircraft sabotage, attacks on ships, intentional killing, and comparable forms of transnational violence provide stronger grounds for passive personality because they often involve deliberate cross-border harm, mobility, and gaps between territorial control and effective prosecution. In such cases, the victim state’s interest is not merely emotional or symbolic; it may be tied to accountability where the territorial state cannot or will not act.
Ordinary crimes require more caution. A minor assault, traffic offense, theft, or localized fraud abroad normally has its legal center in the territorial state. The victim’s nationality may be real, but it may not be strong enough to justify a second criminal forum unless domestic law is clear, the offense is also criminal where it occurred, and prosecution is necessary for a legitimate reason. Otherwise, passive personality risks becoming an overextended doctrine for routine consular grievances.
A useful distinction is whether nationality is incidental or selected. If the victim happens to be a national of the forum state, the link is weaker. If the offender chose the victim because of nationality, diplomatic identity, passport, military status, or perceived association with a state, the link is stronger. That distinction is especially important in terrorism and hostage cases, where nationality may be part of the coercive message sent to the victim state.
4.2 Treaty clauses using victim nationality
Treaty practice has given passive personality a more secure role in specific fields. Several counter-terrorism and transnational crime instruments require states to establish jurisdiction on traditional grounds and permit additional bases where the victim is a national. The International Convention against the Taking of Hostages, for example, allows jurisdiction where the hostage is a national of the state, if that state considers it appropriate (Hostages Convention, 1979). The Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation also recognizes victim nationality as one possible basis in defined circumstances (SUA Convention, 1988).
The International Convention for the Suppression of Terrorist Bombings follows a similar pattern. It requires jurisdiction based on territoriality and offender nationality, while allowing states to establish jurisdiction where the offense is committed against one of their nationals or against certain state facilities abroad (Terrorist Bombings Convention, 1997). These provisions do not create an unlimited victim-state power. They show negotiated acceptance within particular treaty regimes, usually linked to serious offenses and cooperation duties.
This treaty practice matters because it reduces the force of older objections in the fields covered by those instruments. States have expressly accepted that victim nationality may be relevant in certain transnational crimes. Yet treaty consent must be read carefully. A jurisdictional clause in a counter-terrorism convention proves acceptance of that convention’s offenses and conditions. It does not automatically establish a general customary rule covering every crime committed against a national abroad.
4.3 Custom, consent, and reasonableness
The customary status of passive personality should not be overstated. State practice is broader than it once was, but uneven. Some states use the doctrine extensively in domestic legislation; others confine it to serious offenses or treaty-based crimes; some require double criminality, offender presence, prosecutorial authorization, or a failure of territorial justice. That variation makes it difficult to describe passive personality as either fully settled across all crimes or categorically rejected.
Treaty consent offers a clearer foundation in defined regimes. When states accept jurisdictional clauses in hostage-taking, maritime security, aviation, or terrorism conventions, the legal basis is not simply custom. It is consent to a treaty framework that allocates jurisdiction, supports extradition or prosecution, and encourages cooperation. That is a narrower and stronger argument than claiming a general unilateral power.
Reasonableness remains the best way to assess the doctrine outside clear treaty settings. A defensible passive personality claim should consider the gravity of the offense, the clarity of domestic law, the connection between nationality and the criminal act, the position of the territorial and custodial states, the risk of multiple proceedings, and the accused’s ability to receive a fair trial. The doctrine is strongest when these factors point in the same direction. It is weakest when the victim's nationality is the only meaningful link.
5. Terrorism and Targeted Nationality
Terrorism changed the legal treatment of victim-based jurisdiction because it exposed a weakness in purely territorial thinking. Many terrorist acts are not local crimes with foreign victims. They are transnational acts designed to pressure a state, influence public opinion, punish a government, or create fear through the selection of victims associated with a particular nationality. In that setting, the victim’s nationality is not a random fact. It may be part of the message conveyed by the offense.
That does not mean every terrorist offense automatically justifies prosecution by the victim state. The stronger point is narrower. Where offenders target nationals because of their nationality, the victim state has a more persuasive jurisdictional connection than it would have in an ordinary crime abroad. The injured person becomes a means through which pressure is directed at the state or national community. This is why passive personality gained greater acceptance in counter-terrorism law than in routine criminal law (McCarthy, 1989; Watson, 1993).
The shift was legal as well as political. Terrorist violence often creates fragmented jurisdictional claims: the territorial state may be unstable or reluctant to prosecute, the offenders may flee to a third state, the victims may belong to several states, and the aircraft, vessel, or target may have its own jurisdictional links. Victim nationality became one way to prevent serious crimes from falling into a gap between territorial control, custody, extradition, and prosecutorial will.
5.1 Achille Lauro as a turning point
The Achille Lauro affair became a central example in debates over passive personality because it forced states to confront a politically charged crime committed outside the ordinary territorial setting. In 1985, members of the Palestine Liberation Front seized the Italian cruise ship Achille Lauro in the Mediterranean. During the hijacking, Leon Klinghoffer, a United States national, was killed. Italy had a strong jurisdictional claim because the vessel was Italian. Other states had interests because of the offenders, the victims, the place of subsequent custody, and the diplomatic consequences of the incident.
The legal significance of the affair lies less in the details of the operation than in the jurisdictional gap it revealed. The victim state wanted accountability for the killing of its national. The flag state had its own legal authority. The offenders moved through several jurisdictions. Political negotiation, custody, and extradition became as important as the abstract basis of jurisdiction. The case showed that serious transnational violence rarely fits neatly inside one state’s criminal system.
Achille Lauro also helped strengthen the argument that victim nationality can be a real jurisdictional link in terrorism cases. The killing was not treated as an ordinary homicide abroad. It occurred within a broader act of coercive political violence, involving a vessel, foreign nationals, state interests, and contested custody. For states concerned about attacks on their nationals outside their territory, the episode made passive personality appear less like an imperial extension of criminal law and more like a limited response to a specific accountability problem.
5.2 Hostage-taking and aircraft offenses
Hostage-taking, hijacking, aircraft sabotage, and maritime violence often generate several jurisdictional links at once. A hijacked aircraft may be registered in one state, depart from another, land in a third, carry passengers of several nationalities, and be seized by offenders from another state. A hostage-taking may occur in one territory, involve victims from several states, and end with the offenders found elsewhere. These situations rarely produce a single natural forum.
Treaty law reflects that reality. Instruments dealing with aircraft offenses, hostage-taking, terrorist bombings, and maritime safety usually require states to establish jurisdiction on core grounds such as territoriality, registration of the aircraft or vessel, offender nationality, or offender presence. Some also allow victim nationality as an additional basis. The Hostages Convention, for example, permits jurisdiction where the hostage is a national of the state if that state considers it appropriate (Hostages Convention, 1979). The Terrorist Bombings Convention follows a similar model by allowing jurisdiction where the offense is committed against one of the state’s nationals (Terrorist Bombings Convention, 1997).
This structure matters. Treaty regimes do not usually rely on passive personality alone. They combine several links and support them with extradition, prosecution, and mutual assistance duties. Victim nationality becomes part of a jurisdictional network rather than a solitary claim. That is why counter-terrorism practice gives the doctrine more credibility while also showing its limits.
5.3 Incidental victims and selected victims
The distinction between incidental and selected victims is central to a disciplined account of passive personality. If a national is harmed abroad by chance, the victim-state connection is weaker. A tourist injured in a local robbery, a business traveler caught in a private dispute, or a passenger affected by an ordinary offense abroad may have a real personal connection to the victim state, but the crime itself is not necessarily connected to that state.
The analysis changes when nationality is part of the offender’s selection. If victims are chosen because they hold a particular passport, work for a particular government, belong to a national group, or symbolize a state’s policy, the offense is no longer merely local. It uses the victim’s national identity as a tool of pressure or communication. In those circumstances, victim nationality helps explain both the harm and the forum state’s legal interest.
This distinction prevents the doctrine from expanding without limit. It also makes the doctrine more coherent. Passive personality is strongest when nationality is built into the offense’s purpose, weaker when nationality is incidental, and most vulnerable when the victim state seeks to prosecute an ordinary local crime merely because its national was affected.
6. Concurrent Jurisdiction and Priority
Passive personality operates in a field of concurrent jurisdiction. The same offense may fall within the authority of the territorial state, the offender’s national state, the victim state, the flag state of a vessel, the state of aircraft registration, the custodial state, and states acting under treaty obligations. The existence of several lawful claims does not answer the harder question of priority.
That question is practical as much as doctrinal. A state may have a plausible legal basis for prosecution and still be a poor forum. Evidence may be elsewhere. Witnesses may be unavailable. Another state may already be investigating. The accused may be in the custody of a third state. Extradition may be contested. A serious use of passive personality must account for those realities instead of treating the victim's nationality as a shortcut to forum selection.
The better approach is restrained concurrency. Passive personality should not be understood as a superior claim merely because the victim’s nationality gives the case political visibility. It is one jurisdictional basis among several. Its legitimacy depends on how it interacts with territorial prosecution, offender nationality, custody, treaty duties, fair trial rights, and the risk of multiple proceedings.
6.1 The territorial state’s first claim
The territorial state normally has the first claim to prosecute. The law governed the place where the offense occurred, its institutions are responsible for local public order, and its authorities are usually closest to the evidence. Police reports, witness statements, forensic material, surveillance footage, medical records, and crime-scene information are often within its control. These factors give territorial jurisdiction both practical strength and legal weight.
A victim-state prosecution may be justified where the territorial state does not act genuinely. That may happen because of institutional collapse, political interference, intimidation of witnesses, danger to victims, lack of capacity, or an unwillingness to prosecute offenses linked to powerful local actors. In terrorism cases, the territorial state may also be unable to obtain custody over offenders or may face pressure not to proceed.
The point is not that passive personality overrides territorial jurisdiction whenever prosecution abroad seems difficult. Difficulty alone is not enough. The stronger case arises where territorial justice is unavailable, ineffective, compromised, or unable to address the transnational dimension of the offense. Territorial priority remains the baseline; passive personality becomes more persuasive when that baseline fails.
6.2 The offender’s state and the custodial state
The offender’s national state may also have a strong claim. An active personality gives a state authority to regulate its nationals abroad, and many legal systems are more comfortable prosecuting their own nationals than foreign defendants with no link to the forum. If the offender’s state has custody, evidence, and a clear statute, it may be a more practical forum than the victim state.
The custodial state adds another layer. In transnational crime and counter-terrorism cases, the state that arrests or finds the accused may have treaty duties either to extradite or submit the case to prosecution. This aut dedere aut judicare structure does not always depend on the victim's nationality. It reflects the need to prevent offenders from finding safe haven where serious treaty crimes are concerned.
These overlapping claims show why passive personality should not be analyzed in isolation. A victim state may have a legitimate interest, but another state may have a better practical route to trial. The forum decision should consider custody, extradition treaties, available evidence, witness protection, prior proceedings, and the likelihood of a fair and effective prosecution.
6.3 A restrained order of action
A restrained order of action begins with the territorial state. If that state is conducting a genuine investigation or prosecution, the victim state should usually support the process through cooperation, evidence-sharing, consular assistance, and victim participation where available. Parallel prosecution by the victim state should be approached cautiously, especially if it risks duplication or undermines the territorial proceedings.
If the territorial state does not act, the next question is which state can prosecute effectively and lawfully. The offender’s national state may proceed under active personality. The custodial state may act under domestic law or treaty obligations. A flag state or aircraft registration state may have a specific jurisdictional basis. The victim state becomes a stronger candidate when these routes are unavailable, ineffective, or legally inadequate.
Passive personality is best understood as a controlled backstop in serious cases, not the default forum for crimes against nationals abroad. Its use is strongest where the offense is grave, nationality is part of the targeting logic, domestic legislation is clear, other competent states do not provide genuine accountability, and the accused can receive a fair trial. That order of analysis protects the doctrine from two opposite errors: reducing it to a dead letter or turning it into an unrestricted claim of national criminal authority.
7. Legality, Notice, and Fair Trial Rights
Passive personality may be available as a jurisdictional basis and still produce unfair results if applied without procedural discipline. International law does not treat jurisdiction as a substitute for legality, notice, or trial fairness. A state may have a plausible connection to the offense through the victim’s nationality, but that does not answer whether the accused could reasonably foresee prosecution, whether the law was clear at the time of the conduct, or whether the defense can challenge evidence gathered abroad.
This is where the doctrine faces its hardest individual-rights test. Passive personality places a foreign accused before the courts of a state where the conduct did not occur and where the accused may never have been present. That does not make prosecution illegitimate in every case. It does mean the forum state must justify more than its interest in the victim. It must also show that prosecution is compatible with legality, equality of arms, and protection against arbitrary or duplicative proceedings.
7.1 Foreseeability of prosecution
Foreseeability is central to the fairness of extraterritorial criminal law. A person who commits murder, hostage-taking, aircraft sabotage, or a terrorist bombing cannot credibly argue that the conduct was beyond criminal prohibition. The more serious and internationally condemned the offense, the weaker the claim that prosecution was unforeseeable. In such cases, the main question is not whether the conduct was criminal, but whether prosecution by the victim’s state was a reasonably predictable legal consequence.
The issue becomes harder when the offense depends on distinctive domestic rules of the victim state. Financial offenses, speech-related crimes, regulatory violations, public order offenses, or broadly drafted security provisions may vary significantly across legal systems. If the accused acted wholly abroad, under the apparent authority or tolerance of the territorial legal order, prosecution by the victim state becomes more difficult to defend unless the extraterritorial statute is clear and the conduct is plainly criminal by ordinary standards.
Foreseeability is not satisfied by the mere existence of a statute hidden in the forum state’s criminal code. The accused must be able to understand, at least in general terms, that the conduct could attract criminal liability beyond the territorial state. That is why passive personality is more defensible in treaty-based crimes and serious violence than in ordinary offenses where victim nationality is the only meaningful connection.
7.2 Double criminality as a safeguard
Double criminality is not always a strict requirement for passive personality, but it is a powerful safeguard. If the conduct is criminal both in the territorial state and in the victim state, the fairness objection is reduced. The accused cannot plausibly say that the conduct was lawful in the place where it occurred, and the victim state’s prosecution looks less like the export of an idiosyncratic domestic standard.
The safeguard becomes more important as the offense moves away from universally condemned conduct. Where territorial law and forum law define the offense differently, the court must ask whether the difference is marginal or material. A prosecution for intentional killing or hostage-taking will rarely turn on legal surprise. A prosecution for speech, insult, economic regulation, religious offense, or political association may raise more serious concerns if the territorial state does not criminalize the conduct in comparable terms.
Double criminality also disciplines prosecutorial choice. It prevents the victim state from using passive personality to punish conduct that the territorial legal order deliberately permits or treats as non-criminal. That does not mean territorial law always controls. It means the victim state needs a stronger justification when its criminal law departs sharply from the law of the place where the conduct occurred.
7.3 Evidence and equality of arms
A court should not treat jurisdiction as enough. Extraterritorial prosecution often depends on evidence located abroad: witnesses, police reports, medical records, surveillance footage, forensic material, financial documents, digital devices, and crime-scene records. Much of that material may remain under the control of the territorial state or private actors outside the forum’s compulsory powers.
This creates a defense problem. Prosecutors may obtain evidence through state cooperation, intelligence channels, or mutual legal assistance, while the accused may struggle to interview witnesses, inspect locations, challenge translations, test forensic handling, or obtain exculpatory records. The formal right to a defense means little if the accused cannot meaningfully contest the factual basis of the charge.
Fair trial guarantees require the forum court to confront these obstacles directly. Evidence gathered abroad should be reliable, disclosed, and open to challenge. Witness testimony should not become immune from scrutiny merely because it crosses borders. Where the defense cannot obtain essential material, the court should consider whether the prosecution can proceed consistently with equality of arms and the right to examine evidence (United Nations, 1966). Passive personality is strongest when the forum state can try the case fairly, not merely when it can claim jurisdiction.
8. Victims, Forum Choice, and Ne Bis In Idem
Passive personality is often defended through the position of the victims. That argument has force, but it must be kept within legal limits. Victims may face serious barriers in the territorial state: language, distance, insecurity, lack of information, weak institutions, corruption, political pressure, or limited participation rights. A prosecution in the victim’s state may offer a more accessible forum and a clearer route to compensation.
Those interests do not decide the jurisdictional question by themselves. Criminal prosecution is not a private remedy controlled by the victim. It is an exercise of public penal authority. The victim’s state may have a legitimate interest in accountability, but that interest must be balanced against territorial jurisdiction, the rights of the accused, prior proceedings, and the danger of multiple prosecutions for the same conduct.
The tension is sharper because victims’ rights have expanded in many legal systems. Participation, information rights, compensation claims, and the possibility of challenging prosecutorial inaction can make the victim’s home state more attractive than the territorial forum. That may improve access to justice in some cases. It can also encourage strategic forum choice if not controlled by rules on prior proceedings and prosecutorial restraint (Echle, 2013).
8.1 Victim access to a meaningful forum
A meaningful forum matters when territorial justice is unavailable or ineffective. Victims may be unable to participate in proceedings abroad, may not speak the language of the territorial state, may lack resources to travel, or may distrust authorities that are unwilling to investigate. In cases involving terrorism, organized violence, or state-linked intimidation, the territorial state may also be unable to protect witnesses or collect evidence safely.
Passive personality can reduce those barriers. The victim state may provide information in the victim’s language, procedural standing, access to case files, compensation mechanisms, and institutional familiarity. These features can make prosecution more than a symbolic assertion of national concern. They can allow victims to take part in proceedings that would otherwise be inaccessible.
Still, access to a meaningful forum cannot become a general preference for the most favorable forum. If the territorial state is conducting a genuine prosecution, the victim state should normally support that process rather than duplicate it. Passive personality is most persuasive where it responds to a real accountability gap, not where it simply offers victims a more comfortable procedural setting.
8.2 Civil claims within criminal proceedings
Some legal systems allow victims to attach civil claims to criminal proceedings. That can make passive personality especially attractive. A victim may seek punishment, compensation, recognition of harm, and procedural participation in one forum. For cross-border victims, this may be more practical than pursuing a separate civil action abroad after a criminal trial elsewhere.
This feature helps explain why victim-state proceedings can be more than symbolic. The forum may provide a concrete path to restitution or damages, especially where the territorial state offers limited victim participation. The criminal process may also give victims access to evidence and judicial findings that would be difficult to obtain independently.
The same feature creates risks. If civil recovery, procedural leverage, or strategic advantage becomes the real reason for moving a case, passive personality may distort the criminal process. Compensation interests are legitimate, but they cannot override fair trial guarantees or justify a second prosecution after another state has genuinely adjudicated the same conduct.
8.3 Double jeopardy across borders
Passive personality increases the risk of multiple proceedings. The territorial state may prosecute because the offense occurred there. The offender’s state may prosecute under active personality. The victim state may prosecute under passive personality. A custodial state may prosecute under treaty obligations if it refuses extradition. Without coordination, the same accused may face repeated proceedings arising from the same conduct.
Ne bis in idem is uneven across borders. Many domestic systems protect against double jeopardy within the same legal order. International human rights law also recognizes the principle in criminal proceedings, but its transnational reach is limited and depends on the applicable legal regime (United Nations, 1966; Human Rights Committee, 2007). In the European context, regional instruments and integration mechanisms have developed stronger cross-border effects, but that model is not universal.
A careful passive personality analysis must distinguish genuine prior proceedings from sham proceedings. A full acquittal or conviction after a fair trial carries a different weight than a politically engineered dismissal, a token investigation, or a proceeding designed to shield the accused. It must also distinguish a final judgment from a temporary decision not to prosecute. The victim state’s interest in justice is strongest where no competent state has acted genuinely. It is weakest where another state has already conducted a fair and final proceeding for the same conduct.
9. Domestic Legislation and Judicial Control
Passive personality does not operate automatically. International law may permit a state to rely on victim nationality in defined circumstances, but domestic courts still need a legal basis in national law. Criminal jurisdiction abroad must usually come through legislation that clearly extends the relevant offense beyond the state’s territory. Without that statutory step, passive personality remains a possible jurisdictional rationale, not a working ground for indictment.
Judicial control is essential because extraterritorial criminal law sits close to the boundary between legitimate jurisdiction and overreach. Courts must ask whether the legislature intended the statute to apply abroad, whether the victim’s nationality satisfies the statutory test, whether the accused is properly before the court, and whether the prosecution complies with constitutional and human rights guarantees. A weak statute should not be stretched merely because the victim’s nationality creates political pressure.
Domestic implementation also affects international credibility. A carefully drafted statute can confine passive personality to serious offenses, define nationality clearly, require double criminality or offender presence where appropriate, and prevent duplication after genuine foreign proceedings. A broad statute that covers any offense against a national abroad invites the very objections that made the doctrine controversial.
9.1 Clear statutory authority
Courts should not infer passive personality casually. Criminal law carries a presumption of legality and fair notice. If a legislature wants domestic offenses to apply abroad because the victim is a national, it should say so clearly. Ambiguity is especially dangerous in extraterritorial cases because the accused may have no ordinary connection with the forum state.
A serious statute should identify the covered offenses, the required nationality link, the relevant time at which nationality must exist, and any limits based on the offender’s presence. It should also specify whether prosecution requires approval from an attorney general, public prosecutor, justice minister, or another public authority. Such approval requirements can prevent politically attractive but legally weak cases from proceeding without review.
The statute should also address the relationship between prosecution and extradition. Some systems prosecute only if the accused is present, and extradition is unavailable or refused. Others allow indictment before custody is obtained. Each model has consequences. Early indictment may preserve charges and signal seriousness, but it may also create diplomatic pressure before evidence, custody, or forum priority has been properly assessed.
9.2 Presence, extradition, and enforcement abroad
A state may prescribe criminal law for conduct abroad, but it cannot normally enforce that law inside another state without consent. Arrests, searches, seizures, witness compulsion, covert evidence-gathering, and police operations on foreign territory require cooperation or another recognized legal basis. Passive personality does not change that rule. It gives the victim state a possible ground for prosecution, not a roving authority to act abroad.
In practice, the victim state usually depends on lawful routes to custody and evidence. Extradition may bring the accused before the forum court. Mutual legal assistance may provide documents, witness statements, bank records, forensic material, or digital evidence. Deportation, surrender under regional arrangements, or transfer from a custodial state may also make prosecution possible. These mechanisms are not technical details; they are the legal infrastructure that keeps extraterritorial prosecution from becoming unilateral enforcement.
Abduction is the hard case. Some domestic courts have allowed trials to proceed even after contested methods of bringing the accused before the forum, but that does not make the seizure lawful under international law or remove the injured territorial state’s complaint (United States v Alvarez-Machain, 1992). A passive personality prosecution built on unlawful enforcement may damage the legitimacy of the case, even where the forum court has physical custody over the accused.
9.3 Constitutional and human rights limits
International permissibility does not settle domestic validity. A state may have a plausible basis under international law and still violate its own constitution, criminal procedure, or human rights obligations. Courts must assess legality, non-retroactivity, due process, fair trial rights, proportionality, judicial independence, and the accused’s ability to challenge evidence.
Non-retroactivity is especially important. A state cannot cure a jurisdictional gap by extending criminal law abroad after the conduct has occurred and then applying the statute to past acts. Extraterritorial criminal law must be clear before prosecution begins, and in many systems before the conduct takes place. That requirement protects the accused from jurisdiction created by political outrage after a high-profile incident.
Human rights limits also affect evidence and trial design. The accused must have adequate time and facilities to prepare a defense, access to counsel, the ability to examine witnesses, and a meaningful opportunity to contest foreign evidence (United Nations, 1966). If the prosecution depends on inaccessible witnesses, undisclosed intelligence, unreliable translations, or evidence gathered through coercive methods abroad, the jurisdictional basis cannot rescue the trial. Judicial control gives passive personality legal discipline; without it, the doctrine becomes vulnerable to abuse.
10. Abuse Risks and Minimum Safeguards
Passive personality can close accountability gaps, especially where nationals are deliberately targeted abroad, and no other state acts genuinely. It can also be misused. The same doctrine that permits a victim state to prosecute serious transnational violence can be stretched into symbolic politics, retaliation, selective prosecution, or pressure against foreign defendants. Its legitimacy depends on limits.
The risk is not imaginary. Extraterritorial criminal jurisdiction often appears in politically sensitive settings: terrorism, hostage-taking, attacks on travelers, violence against diplomats, cyber operations, and incidents involving states with hostile relations. Public anger may create pressure to prosecute at home even when another state has a stronger claim or better access to evidence. That pressure can turn passive personality into a political instrument rather than a disciplined jurisdictional basis.
The answer is not to reject the doctrine. Modern treaty practice and domestic legislation show that victim nationality can be relevant in serious cases. The answer is to impose safeguards that separate legitimate victim-state accountability from opportunistic assertion of power.
10.1 Politicized and selective prosecution
Passive personality is vulnerable to politicized enforcement because cases involving nationals abroad often attract public attention. A government may face pressure to show that it is defending its citizens, especially after terrorism, hostage-taking, or violence in unstable regions. That pressure can be legitimate when it supports accountability. It becomes dangerous when prosecution is chosen because the accused belongs to an adversarial state, the incident is diplomatically useful, or the case offers symbolic value despite weak evidence.
Selective prosecution is another risk. A state may vigorously prosecute foreign defendants when the victims are politically visible, while ignoring similar harm to less prominent nationals or comparable conduct by allies. That selectivity does not always make a prosecution unlawful, but it weakens the claim that the doctrine is being used as a principled response to serious crime.
Courts and prosecutors should look for signs that the case is being used to make a diplomatic point rather than to administer criminal justice. Delay, weak evidentiary foundations, disregard for territorial proceedings, public political commitments before investigation, or refusal to cooperate with other competent states may indicate that passive personality is being used beyond its proper function.
10.2 Reciprocal overreach
The reciprocity problem is structural. If one state claims broad jurisdiction over any foreign conduct that harms its nationals, other states may do the same. Ordinary crimes abroad could then generate competing indictments, extradition disputes, diplomatic protests, and inconsistent judgments. Criminal law would become a field of overlapping national reactions rather than an ordered jurisdiction.
This risk is sharper in politically divided cases. One state may describe a prosecution as protection of nationals; another may see it as interference with territorial authority or as retaliation against its citizens. If both states expand their criminal statutes in response, passive personality can contribute to jurisdictional escalation.
The doctrine becomes more defensible when it is narrow and predictable. Serious offenses, targeted nationality, clear legislation, respect for territorial proceedings, and fair trial guarantees reduce the danger of reciprocal overreach. Broad victim-based jurisdiction over routine crimes does the opposite. It invites other states to mirror the claim, including against the first state’s own nationals abroad.
10.3 A defensible threshold
A defensible use of passive personality should begin with a clear statute. Courts should not create extraterritorial criminal jurisdiction through implication. The law should identify the offenses covered, the nationality requirement, any double criminality condition, rules on offender presence, and the effect of prior foreign proceedings.
The offense should also be serious enough to justify the intrusion into ordinary territorial priority. Intentional killing, terrorism, hostage-taking, aircraft sabotage, maritime violence, and comparable transnational offenses present stronger cases. Minor or localized offenses against travelers rarely do, unless special circumstances show that territorial justice is unavailable and the victim-state connection is substantial.
Finally, prosecution should respect procedural restraint. The victim state should consider whether the territorial state is acting genuinely, whether another state has custody, whether extradition or mutual legal assistance is available, whether the accused can receive a fair trial, and whether the case would duplicate a final foreign judgment. Passive personality is legitimate only when the victim's nationality is a real legal connection, not a convenient excuse for unilateral criminal authority.
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11. A Working Test for Courts and Legislatures
Passive personality needs a disciplined test because the doctrine sits between legitimate accountability and jurisdictional overreach. Courts, legislators, and prosecutors should not ask only whether the victim was a national. That question is necessary, but it is not enough. The stronger inquiry is whether the victim's nationality supplies a genuine legal connection in the circumstances of the case.
The first question is the gravity of the offense. Passive personality is most defensible for intentional killing, terrorism, hostage-taking, aircraft sabotage, maritime violence, attacks on diplomats, and comparable transnational crimes. It is far weaker for routine offenses abroad unless territorial justice is unavailable and the domestic statute imposes clear limits. Seriousness does not solve every problem, but it helps explain why the victim state’s interest may justify concurrent jurisdiction.
The second question is whether nationality was incidental or targeted. If the victim happened to be a national of the forum state, the connection may be thin. If the victim was selected because of nationality, passport, official status, or association with the victim's state, the jurisdictional claim becomes stronger. Targeted nationality gives the offense a transnational dimension that ordinary local crimes often lack.
The third question is whether the territorial state is acting genuinely. If the territorial state is investigating or prosecuting in good faith, the victim state should normally proceed with restraint, support cooperation, and avoid duplicating the case. If the territorial process is unavailable, unwilling, ineffective, politically compromised, or designed to shield the accused, passive personality becomes more persuasive.
Domestic law must then be examined with care. A court should ask whether the statute clearly authorizes extraterritorial prosecution based on victim nationality, which offenses are covered, whether the accused must be present, whether double criminality applies, whether prosecutorial approval is required, and how prior foreign proceedings affect the case. Ambiguous criminal legislation should not be stretched to satisfy public pressure after a serious incident.
The accused’s position is equally central. Prosecution should be foreseeable, especially where the defendant had no territorial or personal link to the forum state. The defense must be able to test the evidence, examine witnesses, challenge translations, obtain relevant records, and contest material gathered abroad. A victim-state prosecution that cannot provide a fair trial weakens the doctrine it relies on.
Finally, the forum state should ask whether cooperation offers a better route than unilateral prosecution. Extradition, mutual legal assistance, transfer of proceedings, evidence-sharing, victim participation in territorial proceedings, or prosecution by the custodial state may serve justice more effectively. Passive personality is not defeated whenever another state has a claim, but it should not be used as the first answer when a more appropriate forum is available.
A defensible test would ask whether the offense is serious, whether nationality was targeted rather than incidental, whether the territorial state is acting genuinely, whether domestic law clearly authorizes prosecution, whether liability was foreseeable, whether the defense can test the evidence, whether a genuine foreign proceeding has already occurred, and whether cooperation with another competent state would better serve justice. If several of these factors are absent, the passive personality claim becomes weak. If they are present, the victim's nationality can support a lawful and restrained assertion of criminal jurisdiction.
Conclusion
Passive personality is a limited but real doctrine of extraterritorial criminal law. It allows a state, in defined circumstances, to prescribe criminal jurisdiction over foreign conduct because the victim was one of its nationals. That connection can be legally meaningful, especially where the offense is serious, transnational, and directed at the victim because of nationality.
The doctrine cannot be treated as an open-ended right to punish every harm suffered by nationals abroad. Territorial jurisdiction remains the baseline. The offender’s state, the custodial state, the flag state, and treaty regimes may also have strong claims. Passive personality operates properly only within that wider jurisdictional order.
Its legitimacy depends on restraint. The victim state must have clear domestic legislation, a serious offense, a genuine nationality link, respect for territorial proceedings, lawful custody, fair trial guarantees, and safeguards against multiple prosecutions. Without those limits, the doctrine risks becoming a tool of political reaction or reciprocal overreach.
The best account of passive personality is neither rejection nor expansion without discipline. Victim nationality may supply a lawful jurisdictional link, but it must be constrained by sovereignty, legality, fairness, prosecutorial judgment, and cooperation among states. That balance is what separates a legitimate assertion of jurisdiction from the unilateral export of criminal law.
Recommended Book
For readers who want a stronger doctrinal foundation on jurisdiction, International Law Book Review: Is Malcolm Shaw Worth Buying is the most relevant review to read next. Shaw’s textbook helps place passive personality jurisdiction within the wider structure of public international law, especially territorial jurisdiction, nationality, extradition, treaty-based jurisdiction, and the limits of domestic courts applying international rules.
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