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

option was not a settled rule of international law, the Trial Chamber held that this principle
could not be, of itself, determinative in viewing the Bosnian Serbs to be non-nationals of Bosnia
and Herzegovina. 114
94. The Trial Chamber discussed the nationality link in the light of the Nottebohm case and
concluded:
Assuming that Bosnia and Herzegovina had granted its nationality to the Bosnian Serbs,
Croats and Muslims in 1992, there may be an insufficient link between the Bosnian Serbs and
that State for them to be considered Bosnian nationals by this Trial Chamber in the
adjudication of the present case. The granting of nationality occurred within the context of
the dissolution of a State and a consequent armed conflict. Furthermore, the Bosnian Serbs
had clearly expressed their wish not to be nationals of Bosnia and Herzegovina by
proclaiming a constitution rendering them part of Yugoslavia and engaging in this armed
conflict in order to achieve that aim. Such finding would naturally be limited to the issue of
the application of international humanitarian law and would be for no wider purpose. It
would also be in the spirit of that law by rendering it as widely applicable as possible. 115
95. In the light of its finding on the international character of the conflict, the Trial Chamber
held that it is “possible to regard the Bosnian Serbs as acting on behalf of the FRY in its
continuing armed conflict against the authorities of Bosnia and Herzegovina”. 116 The Bosnian
Serb victims could thus be considered as having a different nationality from that of their
captors.
96. That the Trial Chamber relied upon a broad and purposive, and ultimately realistic,
approach 117 is indicated by the following references which concluded its reasoning:
[T]his Trial Chamber wishes to emphasise the necessity of considering the requirements of
article 4 of the Fourth Geneva Convention in a more flexible manner. The provisions of
domestic legislation on citizenship in a situation of violent State succession cannot be
determinative of the protected status of persons caught up in conflicts which ensue from such
events. The Commentary to the Fourth Geneva Convention charges us not to forget that “the
Conventions have been drawn up first and foremost to protect individuals, and not to serve
State interests” and thus it is the view of this Trial Chamber that their protections should be
applied to as broad a category of persons as possible. It would indeed be contrary to the
intention of the Security Council, which was concerned with effectively addressing a situation
that it had determined to be a threat to international peace and security, and with ending the
suffering of all those caught up in the conflict, for the International Tribunal to deny the
application of the Fourth Geneva Convention to any particular group of persons solely on the
basis of their citizenship status under domestic law. 118
97. The Appeals Chamber finds that the legal reasoning adopted by the Trial Chamber is
consistent with the Tadi} reasoning. The Trial Chamber rejected an approach based upon
formal national bonds in favour of an approach which accords due emphasis to the object and
114 Trial Judgement, para 256.
115 Trial Judgement, para 259.
116 Trial Judgement, para 262.
117 The Trial Chamber characterised its approach as “broad and principled” (para 275).
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Case No.: IT-96-21-A 20 February 2001