133
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.
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;
359
Case No.: -94-1-A
15 July 1999
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