1. Such person or persons were protected under one or more of the Geneva Conventions of 1949.

The reference in article 2 of the ICTY Statute to the notion of "protected persons" must perforce cover the persons mentioned in articles 13, 24, 25 and 26 of Geneva Convention I, articles 13, 36, 37 of Geneva Convention II, article 4 of Convention III; and articles 4 and 20 of Convention IV on civilians.

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 97-108: 

"97. Applying Article 2 of the Statute requires that the grave breaches of the Geneva Conventions be committed against (i) persons or (ii) property protected by the provisions of the relevant Geneva Convention.

i. Protected Persons.

"98. The Chamber recalls that persons who do not enjoy protection under the first three Geneva Conventions fall within the scope of application of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, provided that the requirements of Article 4 are satisfied."

"99. Civilian persons under the Third Geneva Convention are defined by their exclusion with respect to the armed forces. Any person who is not a combatant is considered a civilian as defined under Article 4(A)(1), (2), (3) and (6) of the Third Geneva Convention as well as under Article 43 of Additional Protocol I. In case of doubt, the person shall be considered by the party to the conflict or the occupying power to be a civilian."

"100. Article 4(1) of the Fourth Geneva Convention defines as “protected persons” those persons “who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”. Thus, those protected are, first, civilians in enemy or occupied territory or in a combat zone, who are not nationals of the belligerent State in power in whose hands they find themselves, or who are stateless persons. Moreover, the Appeals Chamber has taken a teleological approach to Article 4, finding that the decisive criterion for determining the status of a protected person is allegiance to a party in the conflict. Thus, in the context of armed inter-ethnic conflicts, allegiances may depend more on ethnic identity than on nationality. The Appeals Chamber has determined that “[t]he nationality of the victims [...] should not be determined on the basis of formal national characterisations, but rather upon an analysis of the substantial relations, taking into consideration the different ethnicity of the victims and the perpetrator, and their bonds with the foreign intervening State”."

"101. Both civilians who were in the territory prior to the outbreak of the conflict or the occupation and those who arrived later enjoy the protections conferred by the Fourth Geneva Convention. Moreover, the expression “in the power of” has a very broad meaning, which exceeds the bounds of direct authority. Thus, “[t]he mere fact of being in the territory of a Party to the conflict or in occupied territory implies that one is in the power or hands “of the Occupying Power”."

"102. In contrast, nationals of a co-belligerent State do not enjoy the protection conferred by the Fourth Geneva Convention, “while the State of which they are nationals has normal diplomatic representation in the State whose hands they are in”. For this provision to apply, it must be demonstrated that the States were allies and that they enjoyed effective, satisfactory diplomatic relations. In this regard, consideration must be given not only to formal diplomatic relations existing between the two States but also the true situation."

"103. Article 4(A) of the Third Geneva Convention extends protection to prisoners of war, that is, to persons who have fallen into the power of the enemy and are members of one of the six categories defined in that article."

"104. Paragraph 6 of Article 4(A) of the Third Geneva Convention envisages the possibility of the inhabitants taking up arms. This refers to a “situation where territory has not yet been occupied, but is being invaded by an external force, and the local inhabitants of areas in the line of this invasion take up arms to resist and defend their homes”. There is no requirement that the population be surprised by the invasion. Such taking up arms in fact also refers to a situation where the population taking up arms has been alerted to the invasion, provided that they lacked sufficient time to organise themselves in accordance with sub-paragraphs 1 and 2 of Article 4(A) of the Third Geneva Convention. For this provision to apply, in the interest of the combatants to be recognised as prisoners of war, it is necessary that they carry arms openly. In conclusion, this provision can be considered only for a very short period of time and is applicable only to mass movements, that is, when a gathered population unites to resist."

"105. The protection granted to prisoners of war under the Third Geneva Convention commences from the time they fall into the power of the enemy and terminates at the time of their final release and repatriation. The expression “fall into the power” covers not merely those cases where the persons mentioned in Article 4(A) of the Third Geneva Convention have been captured during combat but also the situation where “soldiers became prisoners without fighting, for example following a surrender”."

ii. Protected Property

"106. According to the Brdanin Chamber, two categories of property are protected under Article 2(d) of the Statute: 1) real or personal property in occupied territory, belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organisations protected under Article 53 of the Fourth Geneva Convention; 2) property that is generally protected under the Geneva Conventions, regardless of location."

"107. As concerns property in the first category, in order to enjoy the protection afforded by the Geneva Conventions, it must be located in occupied territory."

"108. Concerning the second category of protected property, the Chamber recalls that this is property enjoying the broad protection afforded by the Geneva Conventions, regardless of whether it is located in enemy territory and includes inter alia civilian hospitals, air, land, and sea transport used to convey wounded and sick civilians, the infirm and women in maternity, fixed establishments and mobile medical units."

1.1.1. Evidence of the victim(s) being wounded and/or sick member(s) of armed forces in the field (Geneva Convention I)

1.1.2. Evidence of the victim(s) being wounded, sick and/or shipwrecked member(s) of armed forces at sea (Geneva Convention II)

1.1.3. Evidence of the victim(s) being prisoner(s) of war (Geneva Convention III)

According to Article 4(A) of the Third Geneva Convention, prisoners of war are those "persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organised resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognisable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognised by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorisation from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war."

In Mucic et al. ("Čelebići") the Trial Chamber held that:

"[...] this provision was drafted in light of the experience of the Second World War and reflects the conception of an international armed conflict current at that time. Thus, the various categories of persons who may be considered prisoners of war are narrowly framed."[1]

1.1.4. Evidence of the victim(s) being civilians (Geneva Convention IV)

Article 4 of the Fourth Geneva Convention defines protected persons as those:

The meaning of "in the hands of" and "of which they are not nationals"

ICC

The Pre-Trial Chamber in Katanga and Chui stated that:

"Consequently, article 8(2)(a)(i) of the Statute applies to those cases in which protected civilians are killed "in the hands of" a party to the conflict. Under the case law of the international tribunals, an individual civillian falls "into the hands of" a party to the conflictwhen that individual is in the territory under the control of such a party."[2]

ICTY

In this context the Mucic et al. ("Čelebići") Trial Chamber stated that:

"It was in the spirit of the traditional view of the role of international law that article 4 of the Fourth Geneva Convention was phrased in the negative to exclude from that Convention's protection persons who are considered "nationals" of the State in whose hands they are. As observed in the [ICRC] Commentary, 'the Convention thus remains faithful to a recognised principle of international law: it does not interfere in a State's relations with its own nationals.' The Commentary summarises the meaning of this first part of article 4 thus: there are two main classes of protected person: (1) enemy nationals within the national territory of each of the Parties to the conflict and (2) the whole population of occupied territories (excluding the nationals of the Occupying Power)."[3]

In Tadić the Appeals Chamber further found that:

"[...] as apparent from the preparatory work, the Convention also intends to protect those civilians in occupied territory who, while having the nationality of the Party to the conflict in whose hands they find themselves, are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection [...]."[4]

It concluded that:

"This legal approach, hinging on substantial relations more than on formal bonds, becomes all the more important in present-day international armed conflicts. [...] In such conflicts, not only the text and the drafting history of the Convention but also, and more importantly, the Convention's object and purpose suggest that allegiance to a Party to the conflict and, correspondingly, control by this Party over persons in a given territory, may be regarded as the crucial test."[5]

This position has been endorsed by the ICTY Appeals Chamber in the Mucic et al. (Čelebići) Appeals Judgment:

"As found in previous Appeals Chamber jurisprudence, Article 4 of Geneva Convention IV is to be interpreted as intending to protect civilians who find themselves in the midst of an international, or internationalised, conflict to the maximum extent possible. The nationality requirement of Article 4 should therefore be ascertained upon a review of "the substance of relations" and not based on the legal characterisation under domestic legislation."[6]