13.     […] Article 3 common to the Geneva Conventions of 1949, which has long been accepted as having customary status.[1] […]

346. The Appeals Chamber recalls that, to constitute grave breaches of the Geneva Conventions, the crimes enumerated under Article 2 of the Statute must be committed against persons or property protected under the provisions of the relevant Geneva Convention.[1] Geneva Convention IV protects “those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”, excluding protected persons under other Geneva Conventions and nationals of States that have normal diplomatic representation in the detaining State.[2]

         […]

353. [The Appeals Chamber] considers that while Geneva Convention IV primarily concerns the protection of civilians, the plain language of Article 4 defines protected persons more broadly, encompassing all persons – not just civilians – who fall into the hands of a party to the conflict, or occupying power of which they are not nationals, and who are not protected under the other Geneva Conventions.[3] […]

354. [The Appeals Chamber] reiterates its jurisprudence that:

depriving victims, who arguably are of the same nationality under domestic law as their captors, of the protection of the Geneva Conventions solely based on that national law would not be consistent with the object and purpose of the Conventions. Their very object could indeed be defeated if undue emphasis were placed on formal legal bonds […]. It finds that Article 4 of Geneva Convention IV cannot be interpreted in a way that would exclude victims from the protected persons status merely on the basis of their common citizenship with a perpetrator. They are protected as long as they owe no allegiance to the Party to the conflict in whose hands they find themselves and of which they are nationals.[4]

The Appeals Chamber also recalls that it has held that:

already in 1949 the legal bond of nationality was not regarded as crucial and allowance was made for special cases. [In the case of World War II 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. 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”.[5]

355. In this respect, the Appeals Chamber further notes that the allegiance analysis “hinging on substantial relations more than on formal bonds, becomes all the more important in present-day international armed conflicts […] [where] ethnicity rather than nationality may become the grounds for allegiance”.[6] In this case, the Trial Chamber correctly took into account the allegiance of the Muslim HVO members rather than merely considering their nationality.[7] Moreover, to reach the conclusion that Muslim HVO [Croatian Defence Council (Army of BiH Croats)] members were protected by Geneva Convention IV from 30 June 1993 onwards, the Trial Chamber relied on the perceived allegiance of the Muslim HVO members by the HVO.[8] Recalling that the detaining authority’s view of the victims’ allegiance has been considered a relevant factor by the Appeals Chamber,[9] the Appeals Chamber considers that Stojić, Praljak, Petković, and Ćorić have failed to show an error on the part of the Trial Chamber.[10]

375.  According to Article 42 of Geneva Convention IV, protected persons may be detained “only if the security of the Detaining Power makes it absolutely necessary”.[1] While protected persons may be detained when it is absolutely necessary, the Appeals Chamber recalls that such deprivation of liberty is “permissible only where there are reasonable grounds to believe that the security of the State is at risk”,[2] based on “an assessment that each civilian taken into detention poses a particular risk to the security of the State”.[3] As previously held by the Appeals Chamber:

To hold the contrary would suggest that, whenever the armed forces of a State are engaged in armed conflict, the entire civilian population of that State is necessarily a threat to security and therefore may be detained. It is perfectly clear from the provisions of Geneva Convention IV referred to above that there is no such blanket power to detain the entire civilian population of a party to the conflict in such circumstances.[4]