UNITED NATIONS Case No.: IT-96-21-A Date: 20 February ... - ICTY

Further, the Prosecution submits that the test applied by the Trial Chamber is consistent with the
Tadi} Appeal Judgement.
54. As noted by the Prosecution, the Appeals Chamber in Tadi} has previously addressed
the issue of the criteria for establishing whether a person is “protected” under Geneva
Convention IV. In accordance with the principle set out in the Aleksovski Appeal Judgement, as
enunciated in paragraph 8 of this Judgement, the Appeals Chamber will follow the law in
relation to protected persons as identified in the Tadi} Appeal Judgement, unless cogent reasons
in the interests of justice exist to depart from it.
55. After considering whether cogent reasons exist to depart from the Tadi} Appeal
Judgement, the Appeals Chamber will turn to an analysis of the Trial Chamber’s findings so as
to determine whether it applied the correct legal principles to determine the nationality of the
victims for the purpose of the application of the grave breaches provisions.
1. What is the Applicable Law?
56. Article 2 of the Statute of the Tribunal provides that it has the power to prosecute
persons who committed grave breaches of the Geneva Conventions “against persons or property
protected under the provisions of the relevant Geneva Conventions”. 71 The applicable provision
to ascertain whether Bosnian Serbs detained in the ^elebi}i camp can be regarded as victims of
grave breaches is Article 4(1) of Geneva Convention IV on the protection of civilians, which
defines “protected persons” as “those in the hands of a Party to the conflict or Occupying Power
of which they are not nationals.” The Appeals Chamber in Tadi} found that:
[…] the Convention intends to protect civilians (in enemy territory, occupied territory or the
combat zone) who do not have the nationality of the belligerent in whose hands they find
themselves, or who are stateless persons. In addition, as is apparent from the preparatory
work, the Convention also intends to protect those civilians in occupied territory who, while
having the nationality of the Party to the conflict in whose hands they find themselves, are
refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic
protection…. 72
57. The Appeals Chamber held that “already in 1949 the legal bond of nationality was not
regarded as crucial and allowance was made for special cases”. 73 Further, relying on a
teleological approach, it continued:
71 Emphasis added.
72 Tadi} Appeal Judgement, para 164 (footnote omitted).
73 Tadi} Appeal Judgement, para 165 (emphasis added). In this context, the Appeals Chamber referred to the
situation of refugees and nationals of neutral States who do not enjoy diplomatic protection.
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Case No.: IT-96-21-A 20 February 2001