UNITED NATIONS Case No.: IT-96-21-A Date: 20 February ... - ICTY

130. In support of their submission that violations of common Article 3 are not within the
jurisdiction of the Tribunal, the appellants argue that in adopting Article 3 of the Statute, the
Security Council never intended to permit prosecutions under this Article for violations of
common Article 3, 162 and, had the Security Council intended to include common Article 3
within the ambit of Article 3, it would have expressly included it in Article 2 of the Statute,
which deals with the law related to the protection of victims. In their opinion, an analysis of
Article 3 of the Statute shows that it is limited to Hague law. A related argument presented by
the appellants is that Article 3 can only be expanded to include offences which are comparable
and lesser offences than those already listed, and not to include offences of much greater
magnitude and of a completely different character. In support of their argument, the appellants
also rely on a comparison of the ICTY and ICTR Statutes, as Article 4 of the ICTR Statute
explicitly includes common Article 3. 163 The appellants further argue that the Security Council
viewed the conflict taking place in the former Yugoslavia as international, and accordingly
provided for the prosecution of serious violations of humanitarian law in the context of an
international conflict only. 164 The Prosecution submits that the Appeals Chamber should follow
its previous conclusion in the Tadi} Jurisdiction Decision.
131. As to the appellants’ argument based on the intention of the Security Council, the
Appeals Chamber is of the view that the Secretary-General’s Report and the statements made by
State representatives in the Security Council at the time of the adoption of the Statute, as
analysed in Tadi}, clearly support a conclusion that the list of offences listed in Article 3 was
meant to cover violations of all of the laws or customs of war, understood broadly, in addition
to those mentioned in the Article by way of example. Recourse to interpretative statements
made by States at the time of the adoption of a resolution may be appropriately made by an
international court when ascertaining the meaning of the text adopted, as they constitute an
important part of the legislative history of the Statute. 165 These statements may shed light on
some aspects of the drafting and adoption of the Statute as well as on its object and purpose,
when no State contradicts that interpretation, as noted in Tadi}. 166 This is consistent with the
accepted rules of treaty interpretation. 167
162 Appeal Transcript p 319.
163 Appeal Transcript p 320.
164 See Delali} Brief, pp 8-20.
165 See for instance Ngeze and Nahimana v Prosecutor, ICTR Appeals Chamber, 5 Sept 2000, Joint Separate
Opinion, Judge Vohrah and Judge Nieto-Navia, paras 12-17.
166 Tadi} Jurisdiction Decision, para 75.
167 Article 32 of the Vienna Convention on the Law of Treaties provides that the preparatory work of a treaty may
be used as a supplementary means of interpretation to interpret the provisions of a treaty.
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Case No.: IT-96-21-A 20 February 2001