International Criminal Law
152
Until recently, the active personality principle was utilised in order to protect
State interests from being harmed abroad, the primary example being the offence of
treason. With increased efforts in recent years to combat transnational crime, in
conjunction with expanding human rights awareness since 1945, the use of the
nationality principle has been extended to encompass activities that do not directly
endanger individual State interests. Hence, by prosecuting its nationals who organise
illegal sexual tourism, the UK adheres not only to pressure from public opinion, but
also to its obligations under international human rights law. In this manner, States
refuse to portray themselves as facilitating safe havens for those nationals committing
crimes abroad.
65
The application of this principle in civil law jurisdictions is not only a common
statutory feature; it has itself also been expansively construed.
66
In
Public Prosecutor
v Antoni,
the Swedish Supreme Court found the criminal provisions of the Traffic
Code of that country to be applicable against Swedish nationals abroad.
67
The reason
for such generous construction may be justified by the refusal of civil law States, in
accordance with their Constitutions, to extradite their nationals. European experience
has demonstrated variations in the application of this principle. Some States impose
an obligation of double criminality, others that the act constitute a crime in both
itself and the
locus delicti commissi,
68
while some States extend their criminal laws
against nationals whose acts were committed in places lacking an effective criminal
justice system.
69
The adoption of the UK Sexual Offences (Conspiracy and Incitement)
Act (SOA) 1996 is evidence that States are now willing to bring within their
jurisdiction offences which, on account of socio-economic reasons in developing
countries, would not be prosecuted there. The active personality principle features
also, in conjunction with other jurisdictional bases, in a large number of multilateral
treaties.
70
This confirms not only its international acceptance, but, foremost, its
effectiveness in combating impunity.
7.4
THE PASSIVE PERSONALITY PRINCIPLE
Criminal jurisdiction under the passive personality principle is exercised by the State
of the nationality of the victim, where the offence took place outside its territory.
71
Assumption of jurisdiction under this principle has been criticised, and was not
included in the 1935 Harvard Research Draft. Common law States have opposed it
ardently, but with the upsurge in transnational terrorist activity such inhibitions
have given place to the enactment of statutes entertaining the principle.
65
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