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

The Appeals Chamber considers that this extended application of Article 4 meets the object
and purpose of Geneva Convention IV, and is particularly apposite in the context of presentday
inter-ethnic conflicts. 89
73. The Appeals Chamber finds that this interpretative approach is consistent with the rules
of treaty interpretation set out in the Vienna Convention. Further, the Appeals Chamber in
Tadi} only relied on the travaux préparatoires to reinforce its conclusion reached upon an
examination of the overall context of the Geneva Conventions. The Appeals Chamber is thus
unconvinced by the appellants’ argument and finds that the interpretation of the nationality
requirement of Article 4 in the Tadi} Appeals Judgement does not constitute a rewriting of
Geneva Convention IV or a “re-creation” of the law. 90 The nationality requirement in Article 4
of Geneva Convention IV should therefore be ascertained within the context of the object and
purpose of humanitarian law, which “is directed to the protection of civilians to the maximum
extent possible”. 91 This in turn must be done within the context of the changing nature of the
armed conflicts since 1945, and in particular of the development of conflicts based on ethnic or
religious grounds.
74. The other set of arguments submitted by the appellants relates to the national laws of
Bosnia and Herzegovina on citizenship, and the applicable criteria to ascertain nationality. The
appellants contend that the term “national” in Geneva Convention IV refers to nationality as
defined by domestic law. It is argued that according to the applicable law of Bosnia and
Herzegovina on citizenship at the time relevant to the Indictment, the Bosnian Serbs were of
Bosnian nationality. In the appellants’ submission, all former citizens of the former Socialist
Republic of Bosnia and Herzegovina (including those of Serbian ethnic origin), one of the
constituent republics of the SFRY, became Bosnian nationals when the SFRY was dissolved
and Bosnia and Herzegovina was recognised as an independent State in April 1992. 92 Further,
FRY citizenship was limited to residents in its constituent parts, and the law of Bosnia and
Herzegovina did not provide a possibility for its citizens of Serb ethnic background to opt for
FRY citizenship. 93 Delali} submits that in addition, the Bosnian Serbs subsequently agreed to
the Dayton Agreement, which provides that they are nationals of Bosnia and Herzegovina. 94
75. The appellants’ arguments go to the issue of whether domestic laws are relevant to
determining the nationality of the victims for the purpose of applying the Geneva Conventions.
89 Aleksovki Appeal Judgement, para 152 (emphasis added).
90 Delali} Brief, p 59. Deli} Brief, p 23.
91 Tadi} Appeal Judgement, para 168.
92 Appeal Transcript, p 408.
93 Appeal Tra nscript, p 409.
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Case No.: IT-96-21-A 20 February 2001