제네바 제4협약 제4조에 대한 舊 유고슬라비아 국제형사재판소의 목적론적 해석 - 피보호자를 위한 국적 기준 -

Nationality Test for Protected Persons in the Cases of International Criminal Tribunal for the Former Yugoslavia

Nationality functions as a double-edged sword. On one hand, granting an access to rights of a citizen, it is often described as the right to have rights. Nationality in this context is a prerequisite for national protection as well as a desideratum for individual human beings. On the other hand, it is worth to note that, in a considerable number of cases, an alleged perpetrator of human rights violations is itself the state of nationality. Here, nationality, the link between a state and the persons forming it, is not a right but a shackle tying the victims to the state of perpetration. When nationality nothing but forcibly and formally links a person to the state of perpetration, there is no reason for international law not to dismiss such negative function to maximize its role as a human rights defender. In this vein, the nationality test for protected persons ruled by the International Criminal Tribunal for the former Yugoslavia (ICTY) provides potential implication. In related cases, the Tribunal considered the function of Article 4 of the Geneva Convention IV, which defines persons protected by the Convention as those “in the hands of a Party to the conflict or occupying power of which they are not nationals.” The accused in the case concerned argued that he had the same nationality as the victim whereby the victim does not fall within the scope of the Article 4. The ICTY, however, stressed that technical and formal bond of nationality conferred by a State is not absolute in international plane while the lack of both allegiance to a State and protection by that State should be regarded as more important concern in determining the status of protected persons. This teleological approach relying on the object and purpose of the Geneva Convention, directed to the protection of civilians to the maximum extent possible, also confirms that legal concept of nationality must be interpreted within the framework of international law. In short, the judicial intent of the ICTY was to reflect the practical need to protect the victim of international crimes even if such teleological approach is clearly inconsistent with the language of Article 4. The nationality test for protected persons indicates that the protective goals embedded within the international humanitarian regime are so important that nationality — the fruit of municipal law — does not bear overriding its object and purpose.