The Passive Personality Principle

BBC News - Spain seeks US soldiers' arrest

Spain has issued an international arrest warrant for three US soldiers accused of causing the death of a TV cameraman during the Iraq war.

Jose Couso, 37, died in April 2003 after a US tank fired on a hotel used by foreign journalists in Baghdad.

The US has admitted its tank crew fired at the Palestine Hotel but has cleared Sgt Thomas Gibson, Cpt Philip Wolford and Lt-Col Philip De Camp of blame.

How can they do that, you might be asking yourself. The person was killed in Iraq, how could Spain have any jurisdiction to file an arrest warrant?

Well, the answer is the Passive Personality Principle. This is one of the 5 customary practice principles of international law on jurisdiction. This principle holds that a state has jurisdiction when one of its own citizens or nationals is harmed, even if that harm happens in another country. The logic behind this principle is that states (countries) have the right to protect their citizens no matter where they go.

It is a controversial principle of international law and one that the United States strongly opposed until relatively recently. In 1985, when Palestinians hijacked the Achille Lauro and killed an American citizen, the US decided that it had the right to try the hijackers based on this principle. This does not, by any means, indicate that the US will recognize the right of the Spanish to try the American soldiers. They undoubtedly will not. However, the Spanish are well within their rights to try.