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”.

84. Applying the principle enunciated in Aleksovski, the Appeals Chamber sees no cogent reasons in the interests of justice to depart from the Tadić Appeal Judgement. 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.

See also paragraphs 64-83.

367. […] [T]he Appeals Chamber recalls that it has previously held that:

The detaining power has a reasonable time to determine whether a particular person is a civilian and further to determine whether there are reasonable grounds to believe that the security of the detaining power is threatened […]. The assessment that each civilian taken into detention poses a particular risk to security of the State must be made on an individual basis. The Appeals Chamber, in the Čelebići Appeal Judgement, accepted that some reasonable time is given to the detaining power to determine, which of the detainees is a threat.[1]

471.     […] [T]he Appeals Chamber recalls that unlawful confinement as a grave breach of the Geneva Conventions arises in the following two circumstances:

(i) […] a civilian or civilians have been detained in contravention of Article 42 of Geneva Convention IV, i.e. they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; and

(ii) […] the procedural safeguards required by Article 43 of Geneva Convention IV are not complied with in respect of detained civilians, even where their initial detention may have been justified.[1]

In adopting this definition, the Appeals Chamber noted that restrictions on the rights of civilians, such as the “deprivation of their liberty by confinement” are subject to the safeguards in Article 42, as well as Article 5, of Geneva Convention IV.[2] As for imprisonment as a crime against humanity, the Appeals Chamber recalls that it “should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population”.[3]

472.     Thus, it is clear from the above that both crimes concern the deprivation of liberty of an individual. Further, with the exception of chapeau requirements for war crimes and crimes against humanity, imprisonment – in the context of armed conflict – and unlawful confinement of civilians overlap significantly given that the Appeals Chamber has confirmed that the legality of imprisonment and the procedural safeguards pertaining to it are to be determined based on Articles 42 and 43 of Geneva Convention IV.[4]

473.     Finally, the Appeals Chamber considers that determining whether a person has been deprived of his or her liberty will depend on the circumstances of each particular case and must take into account a range of factors, including the type, duration, effects, and the manner of implementation of the measures allegedly amounting to deprivation of liberty.[5] In that respect, the Appeals Chamber notes that it has in the past confirmed that both imprisonment and unlawful confinement of civilians can occur even in situations where the civilians are held in houses in villages, including those who are held in their own village and their own houses, without guards, and where they have some freedom of movement. In Kordić and Čerkez, the Appeals Chamber upheld the Trial Chamber’s finding that the civilians in the village of Rotilj were imprisoned and unlawfully confined since the village was surrounded by HVO [Croatian Defence Council (Army of BiH Croats)], the civilians were not held there for their own safety, and they were prevented from leaving while at the same time were subjected to beatings, thefts, and sexual abuse.[6] […]

479. […] [W]ith respect to [ Praljak’s] submission that these civilians had their movement restricted for their own security, which is permitted under Article 27 of Geneva Convention IV, the Appeals Chamber notes that Article 27(4) of Geneva Convention IV is broadly worded and provides that the Parties to the conflict “may take such measures of control and security in regard to protected persons as may be necessary as a result of the war”. The Commentary to Article 27 then states that while restriction of movement is one of the measures a belligerent may inflict on protected persons, internment of civilians and the placing of civilians in assigned residences are the two most severe measures that may be inflicted on protected persons under Article 27 and, as such, are subject to strict rules outlined in Articles 41-43 and 78 of Geneva Convention IV.[7] One of these rules is that the internment or placement in assigned residence may be ordered only if the security of the detaining party makes it absolutely necessary, while another provides that an initially lawful internment or placement in assigned residence clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.[8] […].

513. […] The Appeals Chamber recalls that it has in the past confirmed that detention amounting to imprisonment and unlawful confinement of civilians can occur even in situations where the civilians are held in houses without guards and where they have some freedom of movement. In Kordić and Čerkez, the Appeals Chamber confirmed the Trial Chamber’s finding that the civilians in the village of Rotilj were imprisoned and unlawfully confined since the village was surrounded by HVO, the civilians were not held there for their own safety, and they were prevented from leaving while at the same time subjected to beatings, thefts, and sexual abuse.[9] Bearing that in mind and in light of the Trial Chamber’s findings outlined above,[10] the Appeals Chamber considers that Praljak fails to demonstrate that the Trial Chamber erred in concluding that Muslims in Podgrade, Lapsunj, and Duge were deprived of their liberty. In that respect, the Appeals Chamber notes that even though the civilians had some freedom of movement in those three locations, the factual findings outlined above show that it was limited and that the great majority of the civilians were in fact confined to the three locations in very harsh conditions, as was the case in In Kordić and Čerkez. The freedom of movement consisted of some individuals occasionally leaving the houses they were housed in, either to obtain food or to hide from potential abuse and sexual assaults at night-time. The Appeals Chamber considers that, given the findings on the presence of HVO soldiers and Military Police in those locations and the fact that the civilians were arrested and brought there by those forces, the Trial Chamber did not err in concluding that the population could not leave Podgrade, Lapsunj, and Duge.

See also paras. 508, 509, 514.