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

85. It is therefore necessary to consider the findings of the Trial Chamber to ascertain
whether it applied these principles correctly.
2. Did the Trial Chamber Apply the Correct Legal Principles?
86. As in the section relating to the nature of the conflict, the Appeals Chamber first notes
that the Tadi} Appeal Judgement, which set forth the law applicable to the determination of
protected person status, had not been issued at the time of the issue of the Trial Judgement. The
Appeals Chamber will thus consider whether the Trial Chamber, although having not, from a
formal viewpoint, applied the reasoning of the Appeals Chamber in the Tadi} Appeal
Judgement, based its conclusions on legal reasoning consistent with it.
87. The issue before the Trial Chamber was whether the Bosnian Serb victims in the hands
of Bosnian Muslims and Bosnian Croats could be regarded as protected persons, i.e., as having
a different nationality from that of their captors.
88. The appellants argue that the Bosnian Serb victims detained in the ^elebi}i camp were
clearly nationals of Bosnia and Herzegovina, and cannot be considered as FRY nationals. Thus,
the victims could not be considered as “protected persons”. The Prosecution on the other hand
contends that the test applied by the Trial Chamber was consistent with the Tadi} Appeal
Judgement.
89. It is first necessary to address a particular argument before turning to an examination of
the Trial Chamber’s findings. Delali} submits, contrary to the Prosecution’s assertions, the
Tadi} Appeal Judgement does not govern the protected persons issue in this case, because the
facts of the two cases are dramatically different. 107 The Appeals Chamber in Aleksovski
observed that the principle that the Appeals Chamber will follow its previous decisions “only
applies in similar cases, or substantially similar cases. This means less that the facts are similar
or substantially similar, than that the question raised by the facts in the subsequent case is the
same as the question decided by the legal principle in the previous decision”. 108
90. In Tadi} and Aleksovski the perpetrators were regarded as acting on behalf of an external
party, the FRY and Croatia respectively, and the Bosnian Muslim victims were considered as
105 Tadi} Appeal Judgement, para 168.
106 Tadi} Appeal Judgement, para 169.
107 Delali}’s Reply, p 4.
108 Aleksovski Appeal Judgement, para 110.
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Case No.: IT-96-21-A 20 February 2001