Exclusion of those nationals of co-belligerent States with normal diplomatic representation
| Notion(s) | Filing | Case |
|---|---|---|
| Appeal Judgement - 15.07.1999 |
TADIĆ Duško (IT-94-1-A) |
|
|
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),[1] 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. In addition, as is apparent from the preparatory work,[2] 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). 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.[3] 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”.
[1] 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-belligerentState, 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”. [2] 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). [3] 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.” |
Other instruments Geneva Convention IV: Article 4(2). | |
| Notion(s) | Filing | Case |
| Appeal Judgement - 29.07.2004 |
BLAŠKIĆ Tihomir (IT-95-14-A) |
|
|
186. It is, therefore, evident, both from the text of Article 4(2)[1] and the accompanying Commentary, that for Article 4(2) to be relevant, it must be demonstrated, first, that the States were allies, and second, that they enjoyed effective and satisfactory diplomatic representation with each other. In contrast, the Appellant submits that the Trial Chamber should have ignored the fact that “HVO and ABiH forces, at times, fought each other” and looked simply at the “formal diplomatic relations” between the two States.[2] Such an approach is not only inconsistent with the object and purpose of Article 4 of Geneva Convention IV, that is, “the protection of civilians to the maximum extent possible”,[3] but also conflates the distinction between co-belligerence and diplomatic representations. 187. The Appellant makes no attempt to reconcile the apparent contradiction between the status of belligerent and that of co-belligerent, but instead refers the Appeals Chamber to allegedly “uncontroverted evidence establishing co-belligerence and diplomatic relations” between the two States.[4] The language of Article 4 of Geneva Convention IV is not so elastic as to allow the conclusion that two States could simultaneously be allies and belligerents with each other. In this case, the States of Croatia and Bosnia-Herzegovina were engaged in a conflict against each other. This, in itself, establishes that they were not co-belligerents within the meaning Article 4(2) for the purpose of crimes arising out of that conflict. [1] It provides: “Nationals of a State which is not bound by the Conventions 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-belligerentState, 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.” [2] Appellant’s Brief, p. 181. [3] Tadić Appeal Judgement, para. 168. [4] Appellant’s Brief, p. 181. |
Other instruments Geneva Convention IV: Article 4(2) | |