135
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 Statute 363 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 Kingdom and Hungary).
364
See ibid., para 143 (where reference was made to the statements of the representatives of the United States,
the United Kingdom and France).
Case No.: -94-1-A
15 July 1999
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