30 IV. THE FIRST GROUND OF CROSS-APPEAL BY THE PROSECUTION: THE TRIAL CHAMBER’S FINDING THAT IT HAD NOT BEEN PROVED THAT THE VICTIMS WERE “PROTECTED PERSONS” UNDER ARTICLE 2 OF THE STATUTE (ON GRAVE BREACHES) A. Submissions of the Parties 1. The Prosecution Case 68. In the first ground of the Cross-Appeal, the Prosecution challenges the Appellant’s acquittal on Counts 8, 9, 12, 15, 21 and 32 of the Indictment which charged the Appellant with grave breaches under Article 2 of the Statute. The Appellant was acquitted on these counts on the ground that the victims referred to in those counts had not been proved to be “protected persons” under the applicable provisions of the Fourth Geneva Convention. 97 69. The Prosecution maintains that all relevant criteria under Article 2 of the Statute were met. Consequently, the Trial Chamber erred by relying exclusively upon the “effective control” test derived from the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States)98 in order to determine the applicability of the grave breach provisions of the relevant Geneva Convention. The Prosecution submits that the Chamber should have instead applied the provisions of the Geneva Conventions and the relevant principles and authorities of international humanitarian law which, in its view, apply a “demonstrable link” test. 70. In distinguishing the present situation from the facts in Nicaragua, the Prosecution notes that Nicaragua was concerned with State responsibility rather than individual criminal responsibility. Further, the Prosecution asserts that the International Court of Justice in Nicaragua deliberately avoided dealing with the question of which body of treaty rules was applicable. Instead the Court focused on the minimum yardstick of rules contained in 97 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949 (“Geneva Convention IV” or “Fourth Geneva Convention”). Case No.: -94-1-A 15 July 1999