72
161.
This would therefore constitute yet another (albeit indirect) indication of the
subordinate role played vis-à-vis the FRY by the Republika Srpska and its officials in the
aforementioned period, including 1992.
162.
The Appeals Chamber therefore concludes that, for the period material to this case
(1992), the armed forces of the Republika Srpska were to be regarded as acting under the
overall control of and on behalf of the FRY. Hence, even after 19 May 1992 the armed
conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authorities of
Bosnia and Herzegovina must be classified as an international armed conflict.
5. The Status of the Victims
163.
Having established that in the circumstances of the case the first of the two
requirements set out in Article 2 of the Statute for the grave breaches provisions to be
applicable, namely, that the armed conflict be international, was fulfilled, the Appeals
Chamber now turns to the second requirement, that is, whether the victims of the alleged
offences were “protected persons”.
(a) The Relevant Rules
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.
In addition, as is apparent from the preparatory work, 204 the
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”.
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
Case No.: -94-1-A
15 July 1999