The Statements Made by Some States in the Security Council

298. Let us now turn to the statements made in the Security Council, after the adoption of the Statute, by three States, namely, France, the United States and the Russian Federation.

299. Before considering what the legal meaning of these statements may be, one important point may first be emphasised. Although they were all directed at importing, as it were, into Article 5 the qualification concerning discriminatory intent set out in paragraph 48 of the Secretary-General’s Report, these statements varied as to their purport.

The statement by the French representative was intended to be part of “a few brief comments” on the Statute.³⁵⁷ By contrast, the remarks of the United States representative

356 For instance, the express requirement in Article 5 of a nexus with an armed conflict creates a narrower sphere of operation than that provided for crimes against humanity under customary international law.

357 He stated the following: “[W]ith regard to Article 5, that Article applied to all the acts set out therein when committed in violation of the law during a period of armed conflict on the territory of the former Yugoslavia, within the context of a widespread or systematic attack against a civilian population for national, political, ethnic, racial or religious reasons” (U.N. Doc. S/PV . 3217, p.11).

were expressly couched as an “interpretative statement”; furthermore, that representative added a significant comment: “[W]e understand that other members of the Council share our view regarding the following clarifications related to the Statute”³⁵⁸ including the

“clarification” concerning Article 5.³⁵⁹ With regard to the representative of the Russian Federation, his statement concerning Article 5 was expressly conceived of as an interpretative declaration.³⁶⁰ Nevertheless, this declaration was made in such terms as to justify the proposition that for the Russian Federation, Article 5 “encompasses” crimes committed with a “discriminatory intent” without, however, being limited to these acts alone.

300. The Appeals Chamber, first of all, rejects the notion that these three statements - at least as regards the issue of discriminatory intent - may be considered as part of the

“context” of the Statute, to be taken into account for the purpose of interpretation of the Statute pursuant to the general rule of construction laid down in Article 31 of the Vienna Convention on the Law of the Treaties.³⁶¹ In particular, those statements cannot be regarded as an “agreement” relating to the Statute, made between all the parties in connection with the adoption of the Statute. True, the United States representative pointed out that it was her understanding that the other members of the Security Council shared her views regarding the “clarifications” she put forward. However, in light of the wording of the other two statements on the specific point at issue, and taking into account the lack of any comment by the other twelve members of the Security Council, it would seem difficult to conclude that there emerged an agreement in the Security Council designed to qualify the

358 See U.N. Doc. S/PV. 3217, p. 15.

359 On Article 5 the United States representative said that: “[I]t is understood that Article 5 applies to all acts listed in that Article, when committed contrary to law during a period of armed conflict in the territory of the former Yugoslavia, as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, gender, or religious grounds” (U.N. Doc. S/PV. 3217, p.16).

360 He said the following: “While believing that the text of the Statute addresses the tasks that face the Tribunal, and for that reason supporting it, we deem it appropriate to note that, according to our understanding, Article 5 of the Statute encompasses criminal acts committed on the territory of the former Yugoslavia during an armed conflict - acts which were widespread or systematic, were aimed against the civilian population and were motivated by that population’s national, political, ethnic, religious or other affiliation” (U.N. Doc. S/PV. 3217, p. 45).

361 Article 31(1) and (2) provide:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;

scope of Article 5 with respect to discriminatory intent. In particular, it must be stressed that the United States representative, in enumerating the discriminatory grounds required, in her view, for crimes against humanity, included one ground (“gender”) that was not mentioned in the Secretary-General’s Report and which was, more importantly, referred to neither by the French nor the Russian representatives in their declarations on Article 5.

This, it may be contended, is further evidence that no agreement emerged within the Security Council as to the qualification concerning discriminatory intent.

301. Arguably, in fact, the main purpose of those statements was to stress that it is the existence of a widespread or systematic practice which constitutes an indispensable ingredient of crimes against humanity. This ingredient, absent in Article 5, had already been mentioned in paragraph 48 of the Secretary-General’s Report.³⁶² In spelling out that this ingredient was indispensable, the States in question took up the relevant passage of the Secretary-General’s Report and in the same breath also mentioned the discriminatory intent which may, in practice, frequently accompany such crimes.

302. The contention may also be warranted that the intent of the three States which made these declarations was to stress that in the former Yugoslavia most atrocities had been motivated by ethnic, racial, political or religious hatred. Those States therefore intended to draw the attention of the future Tribunal to the need to take this significant factor into account. One should not, however, confuse what happens most of the time (quod plerumque accidit) with the strict requirements of law.

303. Be that as it may, since at least with regard to the issue of discriminatory intent those statements may not be taken to be part of the “context” of the Statute, it may be argued that they comprise a part of the travaux préparatoires. Even if this were so, these statements would not be indispensable aids to interpretation, at least insofar as they relate to the particular issue of discriminatory intent under Article 5. Under customary international law, as codified in Article 32 of the Vienna Convention referred to above, the travaux constitute

b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

362 The Trial Chamber in its Judgement of 7 May 1997 has also correctly emphasised that the phrases

“widespread” and “systematic” are disjunctive as opposed to cumulative requirements (see Judgement, paras.

645-648). See also the Nikolic Rule 61 Decision, (“Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, The Prosecutor v. Dragan Nikoli } , Case No.: IT-94-2-R61, Trial Chamber I, 20 October 1995) (Nikoli } (1995) II IC T Y JR 739).

a supplementary means of interpretation and may only be resorted to when the text of a treaty or any other international norm-creating instrument is ambiguous or obscure. As the wording of Article 5 is clear and does not give rise to uncertainty, at least as regards the issue of discriminatory intent, there is no need to rely upon those statements. Excluding from the scope of crimes against humanity widespread or systematic atrocities on the sole ground that they were not motivated by any persecutory or discriminatory intent would be justified neither by the letter nor the spirit of Article 5.

304. The above propositions do not imply that the statements made in the Security Council by the three aforementioned States, or by other States, should not be given interpretative weight. They may shed light on the meaning of a provision that is ambiguous, or which lends itself to differing interpretations. Indeed, in its Tadi} Decision on Jurisdiction the Appeals Chamber repeatedly made reference to those statements as well as to statements made by other States. It did so, for instance, when interpreting Article 3 of the Statute³⁶³ and when pronouncing on the question whether the International Tribunal could apply international agreements binding upon the parties to the conflict.³⁶⁴

C. Conclusion

305. The Prosecution was correct in submitting that the Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent. Such an intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5 (h), concerning various types of persecution.

363 See Tadi } Decision on Jurisdiction, paras 75, 88 (where reference was also made to the statements of the representatives of the United K ingdom and Hungary).

364 See ibid., para 143 (where reference was made to the statements of the representatives of the United States, the United K ingdom and France).

VIII. THE FIFTH GROUND OF CROSS-APPEAL BY THE