The ‘Allegiance’ Test: Judicial Legislation and Interpretation of GCIV

Abstract The article critically addresses the ‘allegiance’ test developed by International Criminal Jurisdictions for the determination of protected personal status under the Fourth Geneva Convention. Through a deconstruction of its elements and the methodology employed in its creation, the author shows substantial and methodological flaws that showcase the test as highly questionable example of judicial legislation. The article concludes that, although the test is likely to go into substantial desuetude, its existence as an interpretative tool will persist and thus its flaws and potential dangers must be assessed critically to prevent unrestricted and unfounded judicial legislation. In particular, the article exposes the lack of relation between the concept of allegiance and the so-called ‘allegiance’ test.