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

Chamber to ascertain the effect of the domestic laws of the former Yugoslavia within the
international context in which this Tribunal operates.
78. Relying on the ICRC Commentary to Article 4 of Geneva Convention IV, the appellants
further argue that international law cannot interfere in a State’s relations with its own nationals,
except in cases of genocide and crimes against humanity. 99 In the appellants’ view, in the
situation of an internationalised armed conflict where the victims and the perpetrators are of the
same nationality, the victims are only protected by their national laws. 100
79. The purpose of Geneva Convention IV in providing for universal jurisdiction only in
relation to the grave breaches provisions was to avoid interference by domestic courts of other
States in situations which concern only the relationship between a State and its own nationals.
The ICRC Commentary (GC IV), referred to by the appellants, thus stated that Geneva
Convention IV is “faithful to a recognised principle of international law: it does not interfere in
a State’s relations with its own nationals”. 101 The Commentary did not envisage the situation of
an internationalised conflict where a foreign State supports one of the parties to the conflict, and
where the victims are detained because of their ethnicity, and because they are regarded by their
captors as operating on behalf of the enemy. In these circumstances, the formal national link
with Bosnia and Herzegovina cannot be raised before an international tribunal to deny the
victims the protection of humanitarian law. It may be added that the government of Bosnia and
Herzegovina itself did not oppose the prosecution of Bosnian nationals for acts of violence
against other Bosnians based upon the grave breaches regime. 102
80. It is noteworthy that, although the appellants emphasised that the “nationality” referred
to in Geneva Convention IV is to be understood as referring to the legal citizenship under
domestic law, they accepted at the hearing that in the former Yugoslavia “nationality”, in
everyday conversation, refers to ethnicity. 103
81. The Appeals Chamber agrees with the Prosecution that depriving victims, who arguably
are of the same nationality under domestic law as their captors, of the protection of the Geneva
Conventions solely based on that national law would not be consistent with the object and
purpose of the Conventions. Their very object could indeed be defeated if undue emphasis were
99
Appeal Transcript, pp 397-398.
100
Appeal Transcript p 415.
101
ICRC Commentary (GC IV), p 46.
102
See Tribunal’s Second Annual Report, para 132; Third Annual Report, para 167 and Fourth Annual Report,
para 183.
103
Appeal Transcript, pp 545-546.
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Case No.: IT-96-21-A 20 February 2001