The role of nationality in the application of international humanitarian law has been a ..... even though he was not proven to have acquired Malaysian nationality.
Tamás Hoffmann: The perils of judicial construction of identity – A critical analysis of the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia pertaining to the notion of protected persons - Unedited draft The role of nationality in the application of international humanitarian law has been a source of recurring controversy. This article attempts to critically analyse the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, which has radically expanded the traditional scope of application of Geneva Convention IV. Even though the approach of the Tribunal is commendable from the perspective of further humanization of humanitarian law, the radical departure from the original construction of the Convention might present more dangers than benefits. The personal scope of application of Geneva Convention IV Geneva Convention IV1 purports to protect civilians in the time of international armed conflict. Its personal scope of application is by no means unlimited, though: Article 4 defines ‘protected persons’, who enjoy the protection of the Convention. In order for a civilian to be protected by Geneva Convention IV, he or she must satisfy two criteria: to be in the hands of the Party to the conflict or Occupying Power and not to be the national of that Party. Article 4 unequivocally denies protection from (a) nationals of a Party not bound by the Convention; (b) nationals of a neutral State who find themselves in the territory of a belligerent State; and (c) nationals of a co-belligerent State while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. Based on the experiences of World War II, the Convention also provides for preferential treatment to refugees who do not in fact enjoy the protection of their State. Article 44 stipulates that ‘...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’
1
The Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War of 12 August 1949 , 75 U.N.T.S. 287.
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This provision is complemented with Art. 70 (2), which provides that ‘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...’ Accordingly, Geneva Convention IV accords at least a minimum level of humanitarian treatment to persons who cannot rely on the protection of their country of origin. Still, it maintains a strict distinction between the two categories which is illustrated by the fact that Art. 147, which establishes the grave breaches regime, only criminalizes acts committed against protected persons.2 The Tribunal’s jurisprudence concerning the interpretation of the nationality requirement of Article 4 of Geneva Convention IV The civil war in Bosnia and Herzegovina has called the underlying rationale of Article 4 of the Geneva Convention IV into question. The conflict was fought fundamentally along ethnic lines and both the Serbs and the Croats received substantial direct and indirect military assistance from Yugoslavia and Croatia. In these circumstances the boundary between national and foreigner had blurred, and distinctions based on formal categories seemed to have become meaningless. The ICTY has addressed the problem of nationality in a string of decisions in which it has repeatedly reiterated and broadened the scope of its original argument. The Tribunal attended to this question for the first time in the Čelebići Trial Judgement.3 It determined that detainees belonging to the victim group - Bosnian Serbs – should be regarded as protected persons even though they formally had Bosnian nationality, just like their Bosnian Muslim and Bosnian Croat captors. Still, for the purpose of application of Geneva Convention IV the Bosnian Serbs were regarded as foreigners.
2
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the right of fair and regular trial prescribed int he present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. 3 Prosecutor v. Mucić, Delalić et alia. (Čelebići), Judgement, Trial Chamber, ICTY No. IT-96-21-T, 16 November 1998.
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In its ruling, the Chamber relied in particular on the decision of the International Court of Justice in the Nottebohm case4 and its requirement for an effective link between the national and its home country, but also on the emerging right under international law to the nationality of one’s own choosing in cases of State succession. The Tribunal emphasized that: ‘law must be applied to the reality of the situation… the Bosnian Serbs declared their independence… to establish their own Republic which would form part of the FRY... the victims were arrested and detained mainly on the basis of their Serb identity. …they must be considered to have been ‘protected persons’ within the meaning of the Fourth Geneva Convention, as they were clearly regarded by the Bosnian authorities as belonging to the opposing party in an armed conflict and as posing a threat to the Bosnian State.’5 This approach was preserved in Tadić Appeal Judgement 6 with more emphasis on ethnicity, even though the Appeals Chamber did not explicitly refer to the Čelebići Trial Judgement. By overturning the Trial Chamber’s findings7 about the non-international character of the conflict between the Bosnian Serb forces and Bosnian authorities in the Prijedor area, and determining that the Bosnian Serb forces had to be considered as de facto organs or agents of the Federal Republic of Yugoslavia (FRY), the Appeals Chamber had to face a conundrum. According to the Tadić Jurisdiction Appeal Decision such interpretation of the situation could lead to an absurd outcome, as there would be a substantial legal disadvantage vis-à-vis the central authorities of Bosnia-Herzegovina, since Bosnian Serb civilians would benefit from the protection of Geneva Convention IV, unlike Bosnian Muslims, who would qualify as protected persons.8 The Appeals Chamber sought to remedy this apparent discrepancy by distinguishing between formal nationality and ethnic allegiance. It held that: ‘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.’9 4
Nottebohm Case, (Lichtenstein v. Guatemala), ICJ Reports 1955, p. 4. Čelebići Trial Judgement, op. cit., paras. 264-265. 6 Prosecutor v. Dusko Tadić, Judgement, Case No. IT-94-1-A, Appeals Chamber, 15 July 1999. 7 Prosecutor v. Dusko Tadić, Opinion and Judgement, Case No. IT-94-1-Y, Trial Chamber, 7 May 1997. 8 Prosecutor v. Tadić, Jurisdiction Appeal, No. IT-94-1-AR72, Appeals Chamber, 2 October, 1995, para. 76. 9 Tadić Appeal Judgement, op. cit., para. 165. 5
The Tribunal proceeded with the analysis and established that: ‘[T]his legal approach, hinging on substantial relations more than on formal bonds, becomes all the more important in present-day international armed conflicts. While previously wars were primarily between well-established States, in modern inter-ethnic armed conflicts such as that in the former Yugoslavia, new States are often created during the conflict and ethnicity rather than nationality may become the grounds for allegiance. Or, put another way, ethnicity may become determinative of national allegiance.’10 It finally concluded that: ‘Article 4 of Geneva Convention IV, if interpreted in the light of its object and purpose, is directed to the protection of civilians to the maximum extent possible... In granting its protection, Article 4 intends to look to the substance of relations, not to their legal characterisation as such.’11 This approach became the accepted interpretative framework concerning the application of Article 4 of Geneva Convention IV in the jurisprudence of the Tribunal and the ICTY strictly adhered to it, determining the status of protected persons not on the basis of formal nationality but following the assessment of ethnicity, allegiance and the existence of the possibility of diplomatic protection. Accordingly, in the Blaskić decision the Trial Chamber ruled that ethnicity becomes the decisive factor in determining to which nation one pledges one’s allegiance, which can in turn establish protected status.12 The Tribunal gave special significance to the fact that the Croatian nationality law extended Croatian citizenship to all Croats, including Bosnian Croats, thus ethnicity became the dominant factor in expressing loyalty. Similarly, the Aleksovski Appeals Judgement endorsed a ‘wider construction’ of Article 4 of Geneva Convention IV and declared that ‘this extended application of Article 4 meets the object and purpose of Geneva Convention IV, and is particularly apposite in the context of present-day inter-ethnic conflicts.’13 Complying with this trend, in the Naletilić and Martinović Judgement the Trial Chamber reaffirmed that the Tribunal ‘will review, on a case by case basis, the effective allegiance of the victims rather than their formal nationality’ 14 and 10
Ibid., para. 166. Tadić Appeals Judgement, op. cit., para. 167. 12 Prosecutor v. Blaskic, Judgement, Case No. IT-95-14, Trial Chamber I, 3 March 2000, para. 126 13 Prosecutor v. Aleksovski, Judgement, Case No. IT-95-14/1, Appeals Chamber, 24 March 2000, paras. 151 and 152. 14 Prosecutor v. Naletilić and Martinović, Judgement, Case No. IT-98-34-T, 31 March 2003, para. 207. 11
in Kordić and Čerkez the Trial Chamber admitted the quasi-precedent status of this ruling by referring to the fact that ‘those decisions [in the Aleksovski and Čelebići cases] are binding on this Chamber.’15 The Blaskić Appeals Chamber concluded this process by rejecting the subground of appeal in which the Apellant stated that the Trial Chamber erred in finding that nationality alone does not determine protected person status, seeing no cogent reason to depart from the established case-law.16 The doctrinal reception of the jurisprudence concerning the extension of the application of the protected person status was generally favourable. Many scholars deemed this interpretation as a useful tool to bring the law of armed conflicts in accordance with the demands of modern conflicts and accepted that the object and purpose of Geneva Convention IV demanded this reinterpretation.17 This novel approach drew only scant criticism, 18 most publicists seem to agree that ‘given the realities of present-day armed conflict, conventional doctrines international humanitarian law failed to account, much less provide, for the protection of civilians caught up in international inter-ethnic conflicts.’19 However, the Tribunal’s arguments might not be completely compelling. A critical analysis of the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia 15
Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95-14/2, Trial Chamber II., 26 February 2001, para. 99. 16 Prosecutor v. Blaskić, Judgement, Case No. IT-95-14, Appeals Chamber, 29 July 2004, para. 182: ‘In conclusion, the Appeals Chamber is not persuaded by the submissions of the Appellant that there exist cogent reasons in the interest of justice to depart from the precedents of this Chamber. The questions raised by the Appellant in this sub-ground have been previously considered and rejected by the Appeals Chamber.’ 17 See, inter alia William J. Fenrick, The Application of the Geneva Conventions by the International Criminal Tribunal for the Former Yugoslavia, International Review of the Red Cross, Vol. 81, No. 834, 1999, p. 326: hails a ‘very progressive approach towards identifying persons protected under the Fourth Geneva Convention’; Urbina similarly lauds an ‘attitude progressif’, Julio Jorge Urbina, La Protection des Personnes Civiles au Pouvoir de L’Ennemi et L’Etablissement d’une Juridiction Pénale Internationale, International Review of the Red Cross, Vol. 82, No. 840, 2000, p. 858; Marco Sassòli and Laura M. Olson, The Judgement of the ICTY Appeals Chamber on the Merits in the Tadić Case: New Horizons for International Humanitarian and Criminal Law?, International Review of the Red Cross, Vol. 82, No. 839, 2000, p. 732; Shane Reeves, The Expansive Definition of “Protected Persons” in War Crimes Jurisprudence, The Army Lawyer, May 2009, pp. 23-27., Ken Roberts, The Contribution of the ICTY to the Grave Breaches Regime, Journal of International Criminal Justice, Vol. 7, 2009, p. 744.; Dieter Fleck, Shortcomings of the Grave Breaches Regime, Journal of International Criminal Justice, Vol. 7, 2009, pp. 842-43. 18 Marco Sassòli and Laura M. Olson, International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, July 15 1999, American Journal of International Law, Vol. 94, 2000, p. 576.; Jean-Francois Quéguiner, Dix Ans apres la Création du Tribunal Pénal International pour L’Ex-Yougoslavie: Evaluation de L’Apport de sa Jurisprudence au Droit International Humanitaire, International Review of the Red Cross, Vol. 85, No. 850, 2003, p. 303. 19 Natalie Wagner, The Development of the Grave Breaches Regime and of Individual Criminal Responsibility by the International Criminal Tribunal for the Former Yugoslavia, International Review of the Red Cross, Vol. 85, No. 850, 2003, p. 361.
Even though the expansive interpretation of Art. 4 of Geneva Convention IV. is based on humanitarian considerations, such broadening of the application ratione personae seems unwarranted. It is submitted that the juxtaposition of nationality and ethnic allegiance and the reliance on teleological interpretation as opposed to a literal reading of the provisions of Convention is not justifiable. Finally, there are reasons to doubt that this reinterpretation would necessarily engender exclusively beneficial consequences. Nationality and citizenship under general international law It is generally accepted that ‘It is for each State to determine under its own laws who are its nationals.’20 However, it is suggested that international law has restrained the complete discretion of states in this respect. In the Nottebohm case the International Court of Justice ruled that there has to be an ‘effective link’ between the State and its national for the purpose of exercising diplomatic protection. The Court went on to define nationality as ‘a legal bond having as its basis a social fact of attachment, an effective connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.’21 This definition implied that nationality is not simply a formal legal relationship between the state and its citizen but it has special additional layers. Such interpretation and the recent trend of tolerating multiple nationalities led Franck to applaud the ‘…acceptance of a right of persons … to compose their own identity by constructing the complex of loyalty references that best manifest who they want to be. …increasingly, by national law and international usage, they are being freed to design their own identities.’22 Nevertheless, the significance of the Nottebohm ruling might be overstated in mainstream international legal scholarship. Arguably, the Court did not intend to authoritatively settle the general issue of nationality but ‘limited itself to the particular question whether a State with which a naturalized citizen has no real links can exercise diplomatic protection on behalf of the citizen against another State with which the citizen,
20
1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. L.N.T.S., vol. 179, p. 89. The Permanent Court of International Justice emphasized already in 1923 that nationality falls within a domain of legal competence reserved to national law, although it may be limited by treaty obligations. See Nationality Decrees Issued in Tunis and Morocco (French Zone), Advisory Opinion, 1923 PCIJ (ser. B) No. 4, at 24. 21 Nottebohm Case, (Lichtenstein v. Guatemala), ICJ Reports 1955, 4. 22 Thomas M. Franck, Clan and Superclan: Loyalty, Identity and Community in Law and Practice, American Journal of International Law, Vol. 90, 1996, p. 383. Still, he admits that this right only exists within the framework of permissive domestic legal regulations.
while not a national of that State..., does have close and genuine link.’ 23 Indeed, as it is pointed out by Sloane, the judgment should rather be interpreted in light of its peculiar circumstances as a prohibition of abuse of rights. Nottebohm gave up his German nationality before World War II and acquired the nationality of Liechtenstein – allegedly fraudulently - in order to avoid facing the consequences of being classified as an ‘enemy alien’ in the place of his residence, Guatemala. Yet, the ICJ refrained from impugning on the conduct of a sovereign state, Liechtenstein, and opted instead to “invalidate” his nationality for the purpose of diplomatic protection.24 This explanation is supported by fact that the application of the principle of genuine link as a precondition to nationality should have resulted in either finding Nottebohm Guatemalan citizen or stateless. As it is persuasively argued by Sloane, ‘in 1940, Nottebohm's links to Germany, the state of his former nationality, could hardly have been said to be more "genuine" than his links to Liechtenstein. If anything, a bona fide appraisal of Nottebohm's nationality according to the genuine link theory as elaborated by the ICJ would have led the Court to the odd conclusion that Nottebohm had become Guatemalan.’25 The conclusion that the principle of effective and genuine link is not a general principle governing the acquisition of nationality is reaffirmed by the subsequent jurisprudence of the International Court of Justice, which avoided ruling on this issue.26 However, the legal picture is more dubious regarding the nationality in relation to state succession. The replacement of one state in respect of another in respect of sovereignty over a given territory, especially if it is connected with the creation of a new state, results in an ambiguous situation, where the nationality of the residents become uncertain. In this situation residents of the concerned territory might automatically receive the nationality of the state enjoying sovereign rights over the territory, or might possibly have a right to freely determine whether they want to keep the nationality of the predecessor state (or if it does not exist anymore, its successor).
23
Vaughan Lowe, Jurisdiction, in: Malcolm D. Evans (ed.) International Law, Oxford University Press, 2003 pp. 340-341. 24 Robert D. Sloane, Breaking the Genuine Link: The Contemporary International Regulation of Nationality, Harvard International Law Journal, Vol. 50, 2009, p. 20. 25 Ibid., p. 12. 26 See especially the Advisory Opinion concerning the Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, where the Court held that it was for each state to fix the conditions for the grant of its nationality as it refused to rule – even though it was explicitly invited to - that grants of nationality not underpinned by some close factual connection with the putative State were ineffective. Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization, Advisory Opinion, ICJ Reports 1969, p. 150.
Analysing state practice Fiedler comes to the conclusion that ‘[T]he assertion of ”automatic” passing of nationality of the citizens of the territory has not prevailed.’ 27 Nevertheless, in case of dissolution of the predecessor state international law does not preclude the right to confer upon individuals the nationality of the successor state, if there is territorial link between the residents and successor state.28 Automatic change of nationality in case of state successions might be favourable from a humanitarian point of view, as it would be a safeguard against statelessness, however, in such situations states might be reluctant to unconditionally extend their nationality to all residents,29 and such assumption would be at odds with the general proposition that municipal law attributes or withdraws nationality to or from the population concerned.’30 Still, the legal doctrine generally supports a presumption in favour of automatic passing of nationality.31 As Brownlie aptly puts ‘on the one hand, it would be illegal, and a derogation from the grant [of territory], for the transferor to try to retain the population as its own nationals, and, on the other hand, it would be illegal for the successor to take any steps which involved attempts to avoid responsibility for conditions on the territory, for example, by treating the population as de facto stateless or by failing to maintain order in the area.’32 Nevertheless, the population might feel different level of loyalty towards their new sovereign. In these circumstances the successor state generally provides the opportunity for persons living on the territory affected by change of sovereignty to choose between the nationality of the successor and the predecessor state. Accordingly, [T]he former State may recover those persons that have an especially strong feeling of loyalty to it, while the new State may not be too unhappy about losing them, since they are most likely to disagree with the territorial change. Thus, public interests of both the old and the new State are reconciled by granting a freedom of choice to the individuals concerned…’ 33 Such right to option was asserted, albeit somewhat enigmatically, to be applicable to the dissolution of the former 27
Werner Fiedler, State Succession, in: Rudolf Bernhard (ed.) Encyclopedia of Public International Law, Vol. IV. (2000), p. 648. 28 Ibid. 29 See the Oseri v. Oseri case, in which the Tel Aviv District Court held that the bond of nationality involving loyalty to the State could not devolve automatically. Thus, between the creation of Israel and the adoption of the Nationality Law ‘the inhabitants of Israel were not Israeli nationals within the legal meaning of the term.’ Oseri v. Oseri case (1950) 17 ILR 111-112. 30 Karl M. Messen, Option of Nationality, in: Rudolf. Bernhard (ed.), Encyclopedia of Public International Law, Vol. III. (1997), p. 786. 31 See Paul Weis, Nationality and Statelessness in International Law 3 (2d. ed. 1979), at 143-4. 32 Ian Brownlie, The Relations of Nationality in Public International Law, 1963 Brit. Y.B. Int'l L. 284, at 325-6. 33 Messen, op. cit., p. 785. Fiedler adds that ‘[new trends] may as a consequence place an obligation upon the successor State to not only grant option of nationality to the people concerned, but also to observe such an obligation in the formation of its internal law.’ Fiedler, op. cit., p. 649.
Yugoslavia. 34 Still, as the Čelebići Trial Chamber correctly observed ‘[I]t is not... altogether clear that the obligation on States to grant such a right is a settled rule of international law.’35 Drawing on the experience of the chaotic events following the break-up of the Former Yugoslavia, the latest regulatory attempts in the field of state succession include both the presumption of automatic change of nationality of the residents of the territory and their right to option. The International Law Commission’s Draft Articles on the Nationality of Persons in relation to the Succession of States36 thus utilizes the presumption of nationality relying on the principle of habitual residence on the territory unless the people concerned resort to the right to option.37 Similarly, two conventions adopted in the framework of the Council of Europe, the 1997 European Convention on Nationality38 and the 2006 Convention on the Avoidance of Statelessness in relation to State Succession39 reflect an emerging European consensus that nationality that in cases of state succession successor states should grant nationality on the basis of effective and genuine link or appropriate connection of the person concerned to the state, focusing primarily on habitual residence and territorial origin but taking into account the will of the person as well.40 The European Commission for Democracy through Law (Venice Commission) also affirmed that it operates on a presumption that change of sovereignty is followed by change of nationality and that nationality of the predecessor State, in principle, will not be retained unless, the right of option is provided.’41 In conclusion, it seems that the granting of nationality still belongs to the domestic jurisdiction of states. However, in cases of state succession the principle of genuine and effective link might play a role in ensuring that residents of the territory over which sovereignty has changed would not become stateless. Yet, in these circumstances the requirement of genuine and effective link is primarily based on territorial link, unless the person concerned willingly opt to choose the nationality of another state.
34
The Badinter Commission declared that ‘…the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their nationality.’ Conference on Yugoslavia Arbitration Commission, Opinion No. 2 of January 11, 1992, ILR, Vol. 92 (1993), p. 167. 35 Čelebići Trial Judgement, op. cit., para. 256. 36 Report of the International Law Commission On the Work of Its Forty-Eighth Session, U.N. GAOR Supp. (No. 10), U.N. Doc. A/51/10, (1999), p. 23. 37 See Arts. 5, 8 and 22. 38 European Convention on Nationality, ETS No. 166. 39 Convention on the Avoidance of Statelessness in relation to State Succession, ETS. No. 200. 40 See Art. 18 of the European Convention on Nationality and Art. 5 of the Convention on the Avoidance of Statelessness in relation to State Succession 41 Council of Europe, European Commission for Democracy through Law, Consequences of State Succession for Nationality, CDL-INF (97), 11, paras. 8-16.
The concept of nationality and allegiance in international humanitarian law The above analysis demonstrates that the principle of genuine and effective link is generally not utilised as an element which prizes ethnicity over formal legal bonds of nationality, but rather as a tool to ensure the protection of the right to nationality, primarily focusing on a territorial link. Nevertheless, the ICTY referred to the distinction between ethnicity as a ground for national allegiance as opposed to a mere legal link between the individual and the state and determined that in case of inter-ethnic conflicts ethnic allegiance should prevail over formal nationality, at least to the extent of the application of international humanitarian law.42 This distinction begs the question whether the concept of nationality and allegiance have an autonomous meaning in international humanitarian law or in particular in Geneva Convention IV. The formation of the concept of allegiance predated the legal regulation of nationality. It was originally a mediaeval English legal concept ‘connoting the duty owed by the individual to his lord or sovereign as the correlative of his claim of protection upon such superior.’43 However, with the appearance of the modern legal concept of nationality, it increasingly became synonymous with the sum of obligations which an individual owes to a state.44 In this vein the Harvard Nationality Research defined nationality as ‘the status of a natural person who is attached to the state by the tie of allegiance’45 Common law systems prescribe a duty of local allegiance to foreigners based on their residence but ‘it ceaseth whenever he withdraweth with his family and effects.’46 Moreover, traditional doctrine denied the capacity of the national to ‘shake off his allegiance and transfer it to a foreign Prince.’47 Beyond common law jurisdictions the concept of allegiance does not seem to have taken root, and it is unclear to what extent it is applicable in general international law. Even though the Permanent Court of International Justice recognised the 42
The Čelebići Trial Judgement emphasized that ‘operating on the international plane, the International Tribunal may choose to refuse to recognise (or give effect to) a State’s grant of its nationality to individuals for the purposes of applying international law.’ Čelebići Trial Judgement, op. cit., para. 258. 43 Clive Parry et al. (eds.) Encyclopaedic Dictionary of International Law, New York: Oceana Publications, Inc, 1986, p. 16. 44 Nissim Baar-Yacov, Dual Nationality (1961), p. 1. 45 Harvard Research in International Law, The Law of Nationality, American Journal of International Law, Vol. 23, 1929, pp. 27-31. 46 Michael Foster, A Report of Some Proceedings on the Commission for the Trial of the Rebels in the Year 1746, in the County of Surry; And of Other Crown Cases: to which are Added Discourses Upon a Few Branches of the Crown Law (3rd ed., 1792), p. 183. See also William Joyce v. Director of Public Prosecutions (1946) 31 Cr. App. R. 57. 47 Ibid., p. 60.
fact that the political allegiance of minorities might not in fact be to their state of nationality, 48 it refused to accept that such the existence of such political allegiance could be a ground for denying nationality from members of minority groups. In the field of international humanitarian law the notion of allegiance does have some relevance. Art. 45 of the Regulation annexed to Hague Convention IV. forbids compelling the population of occupied territory to swear allegiance to the hostile Power. This injunction was aimed at terminating the widespread practice of occupants demanding an ‘oath of allegiance’, which frequently led to forced conscription.49 Owing to similar considerations, Art. 68 of Geneva Convention IV. interdicts the passing of death penalty on protected persons ‘unless the attention of the court has been particularly called to the fact that since the accused is not a national of the Occupying Power, he is not bound to it by any duty of allegiance.’ As explained by the ICRC Commentary, ‘The words “duty of allegiance” constitute an acknowledgment of the fundamental principle according to which the occupation does not sever the bond existing between the inhabitants and the conquered state.’50 Allegiance is also specifically referred to in Geneva Convention III. in Articles 87 and 100. According to Art. 87 ‘…the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance’ while Art. 100 states that ‘…since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance.’ Analyzing the very same articles, the Privy Council came to the conclusion that the ‘Convention [III] does not extend the protection given to prisoners of war to nationals of the detaining power…[nor to] persons who, though not nationals of, owe a duty of allegiance to the detaining power.’51 The judgement at first glance lends some support to the ICTY jurisprudence on the separation of allegiance and ethnicity but in fact it states just the opposite. In the case in question the Privy Council determined that a person of Chinese ethnicity fighting in the Indonesian regular armed forces bore allegiance to Malaysia for the sole fact of having been born in Malaysia, even though he was not proven to have acquired Malaysian nationality. Consequently, far from equating ethnic affiliation with nationality, the judgment actually contends that territorial link creates such a strong allegiance to the country that vacates the 48
Acquisition of Polish Nationality, Advisory Opinion No. 7, [1923] PCIJ (Ser. B), 15. Georg Bluntschli, Das Moderne Völkerrecht der Civilizierten Staaten (1868), para. 551.; Richard R. Baxter, The Duty of Obedience to the Belligerent Occupant, British Year Book of International Law, Vol. 27 (1950), p. 236. 50 Jean Pictet (ed.) Convention (IV) Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, ICRC, Geneva, 1958, p. 346. 51 Public Prosecutor v. Oie Hee Koi (1968) 2 WLR 715 (PC); see description of the case in Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict. C.U.P., 2004, pp. 40-41. 49
express intention of the individual to severe this allegiance. Even though the reasoning of the judgment is contentious,52 it corroborates that traditionally international humanitarian law regarded the concept of allegiance linked to nationality and territory, not ethnicity. The Tadić Appeal Judgement attempted to prove that the concepts of nationality and allegiance have an autonomous meaning in the context of Geneva Convention IV. Firstly, the Tribunal noted that the Convention did not use the nationality requirement in all circumstances as Article 4(2) made an exception for neutral and co-belligerent nationals if their State did not maintain diplomatic representation in the belligerent State. Then it observed that according to the travaux préparatoires, ‘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.’53 The Appeals Chamber concluded that the inclusion of these provisions prove that already in 1949 the legal bond of nationality was irrelevant in certain cases where the individual could not rely on the protection of his state and coupled with the appearance of the phenomenon of modern inter-ethnic armed conflicts, substance has to prevail over formalism, and the factors of allegiance and effective protection should replace the requirement of nationality.54 However persuasive this reasoning might sound, reference to the exceptions specifically agreed upon by the drafting Parties seems to be misguided. The ICRC Commentary emphasises that the rationale of Art. 4(2) and Art. 70 was to allow for extending the personal scope of application of Geneva Convention IV. to protect certain groups while preserving the sovereign rights of the High Parties. The Commentary thus argues that: ‘[T]he definition has been put in a negative form; as it is intended to cover anyone who is ‘not’ a national of the Party to the conflict or Occupying Power in whose hands he is. The Convention thus remains faithful to a recognized principle of international law: it does not interfere in a State’s relations with its own nationals. The only exception to this rule is the second paragraph of Article 70, which refers to nationals of the Occupying Power who sought refuge in the territory of the occupied State before the outbreak of hostilities.’55 52
See e.g. Tse Ka Ho, The Relevancy of Nationality to the Right of Prisoner of War Status, Chinese Journal of International Law, 2009, Vol. 8., pp. 395-421. 53 Tadić Appeal Judgement, op. cit., para. 164 54 Ibid., paras. 166-169 55 ICRC Commentary, op. cit., pp. 46-47.
Relying on Art. 70 as an evidence that the drafters intended to set aside the nationality requirement in favour of a regulation based on “genuine allegiance” reflecting ethnic affiliation is unconvincing. An exception accepted by the drafters is hardly an evidence to the possibility of the existence of a broader scope of application. On the contrary, the inclusio unus est exclusio alterius maxim suggests that the fact that the drafters explicitly added an exception to the general rule means that it should be applied narrowly. As indicated above, it is also very much uncertain that the effective link doctrine has any applicability outside of the purview of diplomatic protection of dual nationals. However, even accepting that assumption, focusing on diplomatic protection and allegiance as determining factors seems unsubstantiated. Diplomatic protection is the procedural corollary to the legal response of international law subjects. As it is originates from the sovereignty of states, under customary law a state has the right but not the legal duty to grant diplomatic protection to its nationals.56 Consequently, the fact that a state refuses to grant diplomatic protection to its citizens should not warrant such presumption that an existing treaty provision’s field of applicability must be interpreted in a way to include those citizens, provided that the nationals would not enjoy the protection of the treaty in the first place. The exceptions under Article 4(2) of Geneva Convention IV involve situations where there is a want of diplomatic representation, i.e. the absence of a State’s ability to potentially protect the interest of its citizens. The only exception where foreign citizens do not have to meet the nationality requirement if their home State refuses diplomatic protection is the case of refugees, which was – as reiterated above – specifically accepted by the Drafting Parties. Moreover, even if the denial of diplomatic protection was an accepted ground of exception under the nationality requirement, it is difficult to see why it should have any relevance in an inter-ethnic conflict, where – being a conflict fought between the state and its own nationals – the granting of diplomatic protection is per definitionem excluded. In light of the above, the expansive interpretation of Art. 4 of Geneva Convention IV. is not justifiable based on textual interpretation, even taking into account the intention of the drafters and international humanitarian law has not developed an autonomous meaning of the concept of ethnic allegiance which could be contrasted with the formal notion of nationality. Accordingly, such an interpretation is only acceptable if it is compatible with the object and purpose of the treaty.
56
Wilhelm Karl Geck, Diplomatic Protection, Encyclopedia of Public International Law, Vol. I., (1992) p. 1051.
Teleological interpretation of Art. 4 The basic rules of treaty interpretation are codified in Art. 31(1) of the 1969 Vienna Convention on the Law of Treaties.57 It combines the principle of contextual and teleological (effectiveness) interpretation and placed both principles on equal footing. Still, in practice most international courts58 and the majority of doctrine59 favours reliance on the plain meaning of the words of the treaty. Still, teleological interpretation could serve as a useful tool to accommodate social changes, the practice of states parties and give effect to the provisions of a treaty. As the Tribunal elucidated it in the Čelebići Trial Judgement: ‘the ‘progressive’ or ‘extensive’ approach of the civilian jurisprudence is in contrast with the legislative historical approach. The teleological approach plays the same role as the ‘mischief rule’ of common law jurisprudence. This approach enables interpretation of the subject matter of legislation within the context of contemporary conditions. The idea of the approach is to adapt the law to changed conditions, be they special, economic or technological, and attribute such change to the intention of the legislation.’60 Yet, an obvious disadvantage of teleological interpretation is its potentially elusive nature. 61 To avoid an interpretation open to any possible outcomes, depending on the intention of the interpreter, Orakhelashvili warns that such interpretation cannot go beyond the treaty regulation since ‘the effectiveness of interpretation relates to the effectiveness of what has been agreed between the parties, not to supplementing the product of agreement by whatever would make it more effective.’62 The ICTY placed major emphasis on teleological interpretation to confirm the alleged primacy of ethnic allegiance over nationality. The Čelebići Trial Chamber declared that a formalistic approach to the nationality requirement is inadequate, as ‘grave violations of 57
1155 UNTS 331 (1969). The International Court of Justice has repeatedly acknowledged the customary law status of this provision. For a convenient summary of this jurisprudence see Alexander Orakhelashvili, The interpretation of acts and rules in public international law, O.U.P., 2009, p. 313. 58 The International Court of Justice emphasized that ‘Interpretation must be based above all upon the text of a treaty.’ Territorial Dispute Case (Libyan Arab Jamahiririya v. Chad), Judgement, ICJ Reports 1994, p. 6, para. 41. 59 Anthony Aust, Modern Treaty Law and Practice, C.U.P., 2000, p. 188. 60 Čelebići Trial Judgement, op. cit., para. 163. 61 62
Aust, op. cit., p. 188. Orakhelashvili, op. cit., p. 397.
international humanitarian law… continue to exhibit new forms and permutations. The international community can only come to grips… through a reasonable as well as a purposive interpretation of existing provisions of international customary law.’63 It determined that: ‘[I]t would be incongruous with the whole concept of human rights, which protect individuals from the excesses of their own governments, to rigidly apply the nationality requirement of Article 4, that was apparently inserted to prevent interferences in a State’s relations with its own nationals. In order to retain the relevance and effectiveness of the norms of the Geneva Conventions, it is necessary to adopt the approach taken here.’64 In this context the Tribunal felt it necessary to provide ‘a more flexible interpretation’, according great importance to the fact that the official Commentary to Geneva Convention IV. emphasized that ‘the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests’65 and that the denial of protected person status would be contrary to the intention of the Security Council.66 This approach found its logical corollary in the Čelebići Appeal Judgement which stated 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, which could also be altered by governments to shield their nationals from prosecution based on the grave breaches provisions of the Geneva Conventions.’67 As it was demonstrated above, since the Tribunal’s conclusions cannot be justified through literal interpretation or by reference to an autonomous meaning of nationality developed in international humanitarian law, the only convincing argument could be an appeal to the new, previously unconceived phenomenon of inter-ethnic conflicts and the requirement of effective 63
Čelebići Trial Judgement, op. cit., para. 170. Ibid., para. 266 65 Pictet (ed.), Convention (IV.), op. cit., p. 48. 66 Čelebići Trial Judgment, op. cit., para. 263. 67 Prosecutor v. Delalic et al. (Čelebići Case), Judgement, Case No. IT-96-21, Appeals Chamber, 20 February 2001, para. 81, 64
interpretation to interpret law in the light of these new developments in order to fulfil the object and purpose of the Convention. However, this argument is hardly compelling. Inter-ethnic conflicts have been recurring in the history of humanity.68 There have been numerous occasions throughout the 20th century and it is rather implausible to suppose that the drafting states were unaware of them in 1949, especially in the light of the recent conflict in India. Not surprisingly, the travaux préparatoires perspicuously demonstrate that the High Contracting Parties did not intend to condition protected person status on ethnic allegiance instead of nationality. As Moir confirms, numerous countries rejected the draft provision that would have extended the protection of the law of international armed conflict to noninternational conflicts. ‘There were also apparent problems in seeking to apply all provisions of the Conventions to internal armed conflicts, particularly with regard to Convention IV… Later proposals were also rejected partially because they would have included the application of the Civilian Convention to internal armed conflicts.’69 In this spirit, the United Kingdom expressly declared that ‘it would be inconceivable to suggest that even in a large-scale civil war supporters of the rebels could justifiably demand from the lawful Government that they be treated as protected persons under the Civilian Convention.’70 The discussions of the 1971 Experts Conference organized by the ICRC to examine the possibility to develop international humanitarian law also underline the fallacy of this argument. The majority of the experts, analyzing the possibility of extending the scope of the Fourth Geneva Convention to non-international armed conflicts came at the conclusion that ‘the Fourth Geneva Convention could not be applied integrally, without adaptation, in the armed conflicts under discussion... the Fourth Geneva Convention is essentially based on concepts of nationality and occupation, which are hardly consistent with the nature of the noninternational armed conflict.’71 The experts, however, were aware of the difficulties posed by the tensions between the formal bond of nationality and allegiance. They emphasized that: ‘Certain provisions of the Fourth Convention result in safeguarding the ties of nationality and loyalty existing between the protected persons and their native States. Be that as it may, in 68
See e.g. Monica Duffy Tolt, The Geography of Ethnic Violence, Princeton University Press, 2003. Lindsay Moir, The Law of Internal Armed Conflict, C.U.P., 2002. 70 Ibid., p. 24 fn. 91 71 Conference of Government Experts on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Protection of Victims of Non-International Armed Conflicts, Geneva, January 1971, Vol. VII., pp. 68-69. 69
non-international armed conflicts these criteria of frontier and nationality are no longer pertinent, or are replaced by other more elusive criteria of a social, political, ideological or ethnic nature which create new types of allegiances. A means of applying the fundamental rules of the Fourth Convention may well be found by the expedient of these new allegiances.’72 At the same conference, a proposal by the International Committee of the Red Cross to extend the application of the entire body of international humanitarian law to civil wars when the rebels receive operational military assistance from a third country was soundly rejected.73 It was still considered to favour too strongly the insurgents and it became apparent that states wanted to avoid the extension of protected person status to their own citizens. The above discussion demonstrates the problem was clearly considered by states. Yet, they refused to give any concessions in extending the scope of the Fourth Geneva Conventions to their own civilian population. Assessing these facts, it is extremely unlikely that the original intentions could in any way encompass the concept of extending the protected person status to persons possessing the same nationality but different ethnicity than their opponents in an inter-ethnic conflict. Finally, it is not at all certain that the object and purpose of the Civilian Convention can only be fulfilled by extending the personal scope of application. The Convention applies to international armed conflicts, which apparently excludes inter-ethnic conflicts without foreign participation. Moreover, the interpretation seems to be premised on the assumption that the norms of non-international armed conflicts do not grant sufficient protection to the civilian population. However, this assumption might not be obvious. The provisions of Common Article 3 to the Geneva Conventions are accepted as ‘elementary considerations of humanity’74 and their customary status was recognised in the jurisprudence of the ICTY.75 Arguably it provides a high level of protection to all victims of armed conflicts by reaffirming the basic human rights, containing a general proscription against inhuman treatment. It is not unreasonable to suppose that this provision – coupled with the body of customary norms of non-international armed conflicts - is enough to deliver adequate protection. 72
Ibid., p. 69. Dietrich Schindler, International Humanitarian Law and Internationalized Armed Conflicts, International Review of the Red Cross, 1982. p. 259. 74 Military and Paramilitary Activities in and against Nicaragua, (Nicaragua v. United States), Merits, ICJ Reports, 1986., p. 114. 75 See e.g. Čelebići Trial Judgement, op. cit., para. 543. 73
Furthermore, the law of international armed conflicts not always offers better protection than the laws of non-international armed conflicts. For instance, while the rules of non-international armed conflicts strictly prohibit the forced movement of civilians, under the law of international armed conflicts individual or mass forcible transfer is only prohibited from occupied territories.76 Indeed, in the Aleksovski Trial Judgement, even though the majority refused to apply Geneva Convention IV, it still found the accused persons guilty of breaching Common Article 3.77 Even accepting that the ICTY only aspired to apply this argument to inter-ethnic conflicts which are ‘internationalized’ by foreign involvement, it is not obvious that the humanitarian goal of granting adequate protection to victims of armed conflicts could be best achieved by such radical reinterpretation of the protected person status. It seems that this expansive interpretation was driven by a perceived need on behalf of the judges of the ICTY to ‘humanize humanitarian law’, i.e. extend the protection of the law of armed conflict to safeguard the potential victims of war.78 However, such an approach of in dubio pro humanitate is based on a fundamental misunderstanding of the role of a criminal court. A criminal court – even with such high stature as the ICTY – cannot create international law as its jurisprudence is not a source of international law, but has to apply criminal norms to the facts in order to determine the outcome of a legal dispute. Its primary role is not expanding the scope of application of norms for future protection of potential victims but to resolve the question of individual criminal responsibility of the defendants through strict construction of criminal norms, which in case of doubt gives benefit to the them (in dubio pro reo). Yet, even if the Tribunal had the competence to expand the personal scope of application of Geneva Convention IV., it is not self-evident that international humanitarian law provides the highest possible protection to civilians. If an individual does not benefit from the protection of the Convention by virtue of his nationality, that person is still protected by the regime of human rights law which is applicable even during international armed conflicts, at least to the extent of derogations.
Policy considerations of the expansive interpretation of Art. 4 of Geneva Convention IV. 76
Sassòli and Olson, International Criminal Tribunal…, op. cit., p. 578. Prosecutor v. Aleksovski, Trial Chamber, IT-95-14/1, 25 June 1999 78 See more in detail Tamás Hoffmann, The gentle humanizer of humanitarian law – Antonio Cassese and the creation of the customary law of non-international armed conflicts. In: Larissa van Den Herik, Carsten Stahn (eds.),Future Perspectives on International Criminal Justice. T.M.C. Asser, 2010, pp. 58-80. 77
The expansive interpretation of Art. 4 brings about certain unexpected consequences. As Sassòli and Olson observed: ‘The logical consequence of this theory is that from now on, all victims of international armed conflicts should benefit from the full protected persons status under the Geneva Conventions... It is open to doubt whether, in international armed conflicts, States will be ready to treat their own nationals as protected persons once those persons’ allegiance lies with the enemy.’79 They also call attention on the difficult question of ‘how a state, a soldier, or a humanitarian organization is to determine-in the midst of an international armed conflict-precisely who is and who is not maintaining allegiance to the state, and who is effectively protected by it.’80 Quéguiner draws attention to the practical difficulties of applying ethnicity as ground for allegiance instead of nationality in the case of mixed marriages and the problems of the ethnic allegiance of children born in them.81 Nonetheless, apart from doctrinal uncertainties and practical difficulties, the application of this doctrine can actually have potentially harmful consequences. Even though the Tribunal insisted that its ruling concerning the relevance of domestic legislation pertaining to nationality was limited to the determination of a particular individual as protected person, and that it did not have any effect of regulating the nationality of these individuals for other purposes, it does not require a stretch of imagination to envisage what potential ramifications of this doctrine could incur. As the judges engage in ‘judicial ethnic cleansing,’82 i.e. declaring that certain people should not be deemed nationals of the State they reside in, it would not be surprising to find the other side enthusiastically accepting this view harbouring ulterior motives. As Sassòli and Olson so aptly put forward, ‘[I]f those persons are foreigners, their forcible transfer to their “home State” is no longer a war crime, but a favour.’83 Indeed, it might become impossible to regard certain nationals of the state belonging to the political nation if an international tribunal 79
Sassòli and Olson, The judgement of the ICTY Appeals Chamber, op. cit., p. 743. Sassòli and Olson, International Criminal Tribunal…, op. cit., p. 577. Fleck while generally endorsing the ICTY interpretation still admits that ‘The allegiance test will certainly be difficult to apply objectively in the heat of an armed conflict, when soldiers and their commanders have to take decisions on the basis of information available at the time.’ Dieter Fleck, Shortcomings of the Grave Breaches Regime, Journal of International Criminal Justice, 2009, Vol. 7, p. 843. 81 Quéguiner, op. cit., p. 303. It is interesting to note that in 1991, in the last Yugoslav census before the breakup of Yugoslavia 5.5% of the population of Bosnia and Herzegovina stated to have ‘Yugoslav’ ethnicity. Ruža Petrović, The National Composition of Yugoslavia’s Population, 1991. Yugoslav Survey, 1992, pp. 3-24. 82 Sassòli and Olson, The Judgement of the ICTY Appeals Chamber, op. cit., p. 741. 83 Ibid., p. 742. Mass expulsion of aliens still seems to be an accepted – though exceptional – means in international law. See the exhaustive report prepared by the Secretariat of the International Law Commission. Expulsion of Aliens – Memorandum by the Secretariat, UN Doc. A/CN.4/565., 10 July 2006. 80
authoritatively determines them as foreigners for the application of certain rules of international humanitarian law. It must be admitted that the ICTY arrived at this interpretation based on the special circumstances of the break-up of Yugoslavia in which nationality became uncertain and foreign involvement in internal conflicts was a constant feature. It could be submitted that this interpretation is only applicable in similar circumstances. However, the reasoning of the judgments is couched in general terms and their rationale seems to be applicable in every ethnically motivated internal conflict. Recent practice suggests that Art. 4 is increasingly being invoked in markedly different situations, which might be at least to a certain extent attributable to the jurisprudence of the Tribunal. In the Kolasinac case, for instance, the Prizren District Court in Kosovo found that Kosovar Albanians were entitled to protected person status in 1999 due to NATO intervention, even though there was no discernible link between the KLA and the NATO forces.84 This interpretation seems to have been accepted by a judgment of the International Criminal Court as well. In the Katanga Confirmation of Charges Decision the Court – relying on the Elements of Crimes - ruled that nationality is no longer the definitive test in determining protected person status.85 The Extraordinary Chambers in the Courts of Cambodia in the Duch case also explicitly relied on the ICTY jurisprudence to conclude that Cambodian nationals who were executed during the conflict between the Khmer Rouge and Vietnam due to their Vietnamese nationality should be qualified as protected persons since they were regarded ‘as having allegiances to Vietnam and as a threat to DK [Democratic Kampuchea].’86 The influence of the ICTY jurisprudence is also tangible concerning reactions to the plight of the People’s Mujahedin Organization of Iran (PMOI) residing in Camp Ashraf in Iraq. This armed group composed of exiled Iranians fought together with the Iraqi government against the Iranian regime. Even though the international armed conflict between Iraq and Iran terminated in 1988, the Unites States of America from July 2004 to January 2009 repeatedly asserted that the camp’s inhabitants were protected persons under Geneva 84
District Court of Prizren, 31 January 2003, C. Nr. 226/2001. However, on appeals the Supreme Court of Kosovo quashed this verdict, emphasizing that the doctrine is limited to international armed conflicts. See 5 August 2004, AP – KZ 230/2003. 85 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of Charges, Pre-Trial Chamber, Case No. ICC-01/04-01/07, 30 September 2008, para. 291, fn. 398. Yet, this conclusion seems to be unfounded, as Dörmann points out that the Contracting Parties did not want to explicitly settle this question. DÖRMANN, Knut, Elements of War Crimes under the Rome Statute of the International Criminal Court. ICRC, C.U.P., 2003, pp. 28-29. 86 The Prosecutor v. Kaing Guek Eav (Duch), Judgment of 26 July 2010, Case No. 001/18-07-2007/ECCC/TC, para. 424.
Convention IV. and an attack against them by Iraqi militias was denounced by a Spanish court as a grave breach against protected persons.87 The recent Gaza Flotilla Report issued by Human Rights Council experts also underlines how far this expansive interpretation could lead. The Report found that persons aboard of a ship transporting humanitarian supplies attempting to enter the territorial waters of Gaza were also protected persons in the meaning of Art. 4 of Geneva Convention IV., even though there was no ostensible situation of international armed conflict.88 Finally, this approach seems to have trickled down to national legislation as well. For instance, Art. 135 of the Colombian Criminal Code criminalizes the ‘Homicide of a protected person’, including a member of the civilian population in any armed conflict, be it international or non-international.89 In conclusion, however, I submit that the expansive interpretation applied by the ICTY in its jurisprudence about the applicability of Geneva Convention IV. to inter-ethnic conflicts is potentially dangerous and a result of a perceived need to humanize humanitarian law. It is understandable that chaotic events such as the dissolution of the former Yugoslavia spur many authors to propose that ‘a layered and fluid approach to questions of membership should be applied to other aspects of international law in practice’ 90 instead of the formal category of nationality. However, an effective protection of the civilian population could have been achieved by simply focusing on the fact that their nationality was undetermined due to state succession, instead of resorting to an argumentation which denies that minority communities are part of the political nation. Such an approach could possibly result in the eventual denial of rights of ethnic groups, instead of their protection.
87
Relying on the Tadić Appeals Judgment it stated that ‘If the substance of the relations is considered rather than their formal legal characterization, the PMOI clearly came within the category of ‘protected persons’ in 2003 when they were in the hands of the United States or Iraq.’ See more in detail in Shiobhan Wills, The Obligations Due to Former ‘Protected Persons’ in Conflicts That Have Ceased to be International: The People’s Mujahedin Organization of Iran, Journal of Conflict and Security Law, Vol. 15, 2010, pp. 117-139. 88 Report of the International Fact-finding Mission to Investigate Violations of International Law, including International Humanitarian and Human Rights Law, Resulting from the Israeli Attacks on the Flotilla of Ships Carrying Humanitarian Assistance. UN Doc. A/HRC/15/21, para. 66. 89 Alejandro Aponte Cardona, Criminal Prosecution of International Crimes: The Colombian Cases. International Criminal Law Review, Vol. 10, 2010, p. 557. 90 Kim Rubinstein, Rethinking Nationality in International Humanitarian Law, in: Ustinia Dolgopol and Judith Gardam (eds.), The Challenge of Conflict, Brill, 2006, pp. 102-103.
