Chapter 7: State Jurisdiction and Immunities
151
The question of criminal jurisdiction with regard to succession of States is a
problematic one. In the
Former Syrian Ambassador to the German Democratic Republic
(GDR) case,
53
the Syrian Ambassador to the GDR was charged with fostering and
co-ordinating a terrorist bombing in the Federal Republic of Germany. The Federal
Constitutional Court upheld the jurisdiction of German courts (after unification),
first because the acts had been committed in West Berlin, and secondly because it
deemed federal criminal law applicable even prior to German reunification.
Whatever the merits of this decision, its application should not offend the general
principles of prohibition of retroactive criminal laws and double jeopardy.
7.3
THE ACTIVE PERSONALITY PRINCIPLE
The active personality principle (or nationality) of jurisdiction is based on the
nationality of accused persons.
54
It allows States to prescribe legislation regulating
the conduct of their nationals abroad, and in some cases it has also been applied to
persons with residency rights.
55
For such purposes, although the granting of
nationality is considered a matter of domestic law,
56
its application and recognition
in international fora is premised on principles of international law.
57
This competence
of States to prosecute their nationals on the sole basis of their nationality is based on
the allegiance that is owed to one’s country under municipal law.
58
Although the
active personality principle is mostly prevalent in civil law jurisdictions, it is generally
recognised also in common law States.
59
In the UK, the nationality principle applies
to a limited number of offences, such as treason,
60
murder and manslaughter,
61
bigamy,
62
offences on board foreign merchant vessels
63
and, more recently, conspiring
or inciting sexual offences against children.
64
53
(1996) 115 ILR 597, pp 604–05.
54
GR Watson, ‘Offenders Abroad: The Case for Nationality-Based Criminal Jurisdiction’, 17
Yale J
Int’l L
(1992), 41.
55
UK War Crimes Act 1991, s 1(2) brings to the jurisdiction of English courts persons who are accused
of committing war crimes during the Second World War, if at the time of prosecution they are either
residents or citizens of the UK. See
R v Sawoniuk
(1999) unreported.
56
1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, Art 1,
179 LNTS 89.
57
In the
Nottebohm
case (1955) ICJ Reports 4, Second Phase, the International Court of Justice (ICJ)
pointed out that a State claiming protection on behalf of one of its naturalised nationals against a
respondent State needed to establish an effective and genuine link.
58
Harvard Research,
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