party that was perceived as crucial.
69
In a nation that had crumbled, ethnicity became
more important than nationality in determining loyalties.
70
Therefore, civilian
persons in Bosnia who fell into the hands of belligerents possessing the same
nationality as they did, but who associated themselves with a different ethnic group,
were entitled to protected status under Art 4 of Geneva Convention IV. The
Tadic
appeals judgment further identified as recipients of the same protection persons in
occupied territory who, while possessing the nationality of their captor, are refugees
and thus no longer benefit from the protection of Geneva Convention IV.
71
A possible
scenario would be that of German Jews fleeing to France before 1940 to avoid
persecution, and who subsequently fall into German hands when Germany occupies
France. It should be noted that whatever the defining element of loyalty may be in
each particular case, under Art 4(2) of Geneva Convention IV ‘nationals’ of co-
belligerent States are not entitled to benefit from protected status. In the case of the
fragile and, on many occasions, interrupted alliance between the Bosnian Croats
and the Bosnian Moslems, the
Blaskic
judgment found the two parties not to be co-
belligerents.
72
Although the Trial Chamber in the latter case rebuffed the existence of
an alliance
in toto,
at least as this was relevant to determining protected status, this
alliance undoubtedly existed on various occasions despite its instability, and on this
basis co-belligerency must be formally recognised as a fact.
The specific unlawful acts which entail individual responsibility under Art 2 of the
ICTY Statute and which must further be sufficiently linked to the armed conflict are:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.
Although the International Committee of the Red Cross (ICRC) commentary to the
1949 Geneva Conventions states that the list of grave breaches therein is not
exhaustive and that criminality itself may extend beyond grave breaches,
73
such
construction cannot have any application to Art 2 of the ICTY Statute whose list of
offences is exhaustive, and which must provide guarantees of fairness and certainty.
69
Tadic
appeals judgment (15 July 1999), paras 165–66.
70
Blaskic
judgment (3 March 2000), paras 125–33.
71
Tadic
appeals judgment (15 July 1999), para 164.
72
Blaskic
judgment (3 March 2000), paras 137–43.
73
JS Pictet,
Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of
Armed Conflict,
1958, p 305.
Chapter 13: The International Criminal Tribunals for Yugoslavia and Rwanda 351
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