Table of contents:
1. Such person or persons were protected under one or more of the Geneva Conventions of 1949.
1.1.3. Evidence of the victim(s) being prisoner(s) of war (Geneva Convention III)
1.1.4. Evidence of the victim(s) being civilians (Geneva Convention IV)
P.1.2. Evidence of the victims being civilians who are stateless persons.
Element:
1. Such person or persons were protected under one or more of the Geneva Conventions of 1949.
ICTY, The Prosecutor v. Jovica Staniić and Franko Simatović, IT-03-69-T, Judgement (TC), 30 May 2013, para. 985:
"985. In relation to another incident (Murder of approximately 27 non-Serb civilians by using them as human shields on or about 12 July 1992 (para. 54)), the Trial Chamber, having considered the circumstances in which two of the alleged victims (Omer Delić, Salih Makarević) were killed, their uniform and the active hostilities in and around the relevant area at the time of their deaths, and for a third alleged victim (Nedad Makarević) having considered evidence of ABiH affiliation and the active hostilities in and around the relevant area at the time of his death, finds that they were all three killed in a context which might reasonably be perceived as a combat situation. As such, the evidence is insufficient to establish that they were hors de combat or otherwise not taking part in active hostilities when they were killed. Consequently, the Trial Chamber will not consider these killings further in relation to this finding."
1.1.3. Evidence of the victim(s) being prisoner(s) of war (Geneva Convention III)
A. Legal source/authority and evidence
Prosecutor v. Tihomir Blakić, Case No. IT-95-14-T, Judgement (TC), 3 March 2000, para. 147:
"147. In accordance with the Third Geneva Convention, those persons defined in Article 4 are protected "from the time they fall into the power of the enemy and until their final release and repatriation" 293. The Prosecution contended that all the Bosnian Muslim combatants held by the HVO suffered inhumane treatment and were used as human shields as alleged in counts 15 and 19 of the indictment, had the status of protected persons within the meaning of the Third Geneva Convention 294. The Trial Chamber is of the view that all the persons identified as prisoners of war did enjoy the protection accorded by the Third Geneva Convention and points out that those who did not enjoy this protection were civilians and thereby enjoyed the protection accorded by the Fourth Geneva Convention. However, the Trial Chamber cannot envisage that the Third Geneva Convention may apply in respect of count 19 as the indictment specifies only Muslim civilians295. Nonetheless, the provisions of the Fourth Convention still remain applicable."
"293. Third Geneva Convention, Article 5.
294. Prosecutors Brief, book 1, p. 156, para. 6.66.
295. Amended indictment, para. 16."
1.1.4. Evidence of the victim(s) being civilians (Geneva Convention IV)
P.1.2. Evidence of the victims being civilians who are stateless persons.
A. Legal source/authority and evidence
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, para. 164:
"164. Article 4(1) of Geneva Convention IV (protection of civilians), applicable to the case at issue, defines "protected persons" - hence possible victims of grave breaches - as those "in the hands of a Party to the conflict or Occupying Power of which they are not nationals". In other words, subject to the provisions of Article 4(2),203 the Convention intends to protect civilians (in enemy territory, occupied territory or the combat zone) who do not have the nationality of the belligerent in whose hands they find themselves, or who are stateless persons. [ ]"
"203. Article 4(2) of Geneva Convention IV provides as follows:
"Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are"."
A. Legal source/authority and evidence
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 147:
"147. Applying the decisions of the Appeals Chamber in the Tadic, Aleksovski and Celebici cases to the present case, the Chamber finds that the Bosnian Muslim victims were in the hands of a party to the conflict, namely the Bosnian Croats, to whom they owed no allegiance."
Prosecutor v. Zejnil Delalic et al, Case No. IT-96-21-A, Judgement (AC), 20 February 2001, para. 84:
"84. The nationality of the victims for the purpose of the application of Geneva Convention IV 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 perpetrators, and their bonds with the foreign intervening State."
Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-A, Judgement (AC), 24 March 2000, para. 151:
"151. [ ] the Appeals Chamber also confirms the finding in the Tadic Judgement that, in certain circumstances, Article 4 may be given a wider construction so that a person may be accorded protected status, notwithstanding the fact that he is of the same nationality as his captors.
Prosecutor v. Duko Tadić, Case No. IT-94-1-A, Judgement (AC), 15 July 1999, paras. 164-166:
"164. [ ] In addition, as is apparent from the preparatory work,204 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 (consider, for instance, a situation similar to that of German Jews who had fled to France before 1940, and thereafter found themselves in the hands of German forces occupying French territory)."
"204. The preparatory works of the Convention suggests an intent on the part of the drafters to extend its application, inter alia, to persons having the nationality of a Party to the conflict who have been expelled by that Party or who have fled abroad, acquiring the status of refugees. If these persons subsequently happen to find themselves on the territory of the other Party to the conflict occupied by their national State, they nevertheless do not lose the status of "protected persons" (see Final Record of the Diplomatic Conference of Geneva of 1949, vol. II, pp. 561-562, 793-796, 813-814)."
"165. Thus already in 1949 the legal bond of nationality was not regarded as crucial and allowance was made for special cases. In the aforementioned case of refugees, the lack of both allegiance to a State and diplomatic protection by this State was regarded as more important than the formal link of nationality.205 In the cases provided for in Article 4(2), in addition to nationality, account was taken of the existence or non-existence of diplomatic protection: nationals of a neutral State or a co-belligerent State are not treated as "protected persons" unless they are deprived of or do not enjoy diplomatic protection. In other words, those nationals are not "protected persons" as long as they benefit from the normal diplomatic protection of their State; when they lose it or in any event do not enjoy it, the Convention automatically grants them the status of "protected persons".
166. This legal approach, hinging on substantial relations more than on formal bonds, becomes all the more important in present-day international armed conflicts. While previously wars were primarily between well-established States, in modern inter-ethnic armed conflicts such as that in the former Yugoslavia, new States are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance. Or, put another way, ethnicity may become determinative of national allegiance. Under these conditions, the requirement of nationality is even less adequate to define protected persons. In such conflicts, not only the text and the drafting history of the Convention but also, and more importantly, the Conventions 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."
"205. See also Article 44 of Geneva Convention IV:
"In applying the measures of control mentioned in the present Convention, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality de jure of an enemy State, refugees who do not, in fact, enjoy the protection of any government."
In addition, see Article 70(2):
"Nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State, shall not be arrested, prosecuted, convicted or deported from the occupied territory, except for the offences committed after the outbreak of hostilities, or for offences under common law committed before the outbreak of hostilities which, according to the law of the occupied State, would have justified extradition in time of peace.""
