The responsibility of accomplices in the case-law of the ad hoc tribunals

Criminal Law Forum

Volumn 20, Issue 4, 2009, Pages 417-445

  Giustiniani, Flavia Zorzi ^a  

^a ROMA TRE UNIVERSITY   (Italy)

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EID: 76349096915     PISSN: 10468374     EISSN: 15729850     Source Type: Journal    
DOI: 10.1007/s10609-009-9105-1     Document Type: Article

References (241)

1. These statutes contain a general provision which reads as follows: "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan." Cf. art. 6 § 3 of the Charter of the International Military Tribunal at Nuremberg;
2. art. 5 § 2 of the Charter of the International Military Tribunal for the Far East.
3. Control Council Law No. 10, which was enacted for the purpose of conducting trials in the separate zones of Allied occupation, provides, inter alia, the criminal responsibility of any person "if he was [.] b) [.] an accessory to the commission of any such crime or ordered or abetted the same" (art. II § 2 of Control Council Law No. 10, 20 December 1945, Official Gazette of the Control Council of Germany, No. 3 Berlin, 31 January 1946).
4. See, e.g., the so-called 'industrialists' cases: the Flick case, VI Trials ofWar Criminals Before the Nuremberg Military Tribunals 1192;
5. the I.G. Farben case, VII-VIII Trials of War Criminals Before the Nuremberg Military Tribunals.
6. the Krupp case, IX Trials of War Criminals Before the Nuremberg Military Tribunals 1436.
7. Emphasis added. Cf. art. 7(1) of the ICTY Statute.
8. and art. 6(1) of the ICTR Statute.
9. "The Statutes of the ad hoc Tribunals for former Yugoslavia and Rwanda are yet another example of regulations which, partly due to the wording of earlier conventions such as that on genocide, lack a clear notion of perpetration and participation." Cf. A. Eser, Individual Criminal Responsibility, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), p. 786.
10. Representatives of this model are, for example, Italy and Austria.
11. The differential participation model is adopted, inter alia, by the majority of European countries, the U.S. and several Latin American countries.
12. Judgment, Tadić (IT-94-1), Appeals Chamber, 15 July 1999, § 229 (Tadić AJ).
13. For the latter position cf. e.g. Decision on Motion by Momir Talić for Provisional Release, Brd{stroke}anin and Talić (IT-99-36/1), Trial Chamber, 28 March 2001, §§ 40-45.
14. Decision on Ojdanić's Motion Challenging Jurisdiction - Joint Criminal Enterprise, Milutinović (IT-99-37-AR72), Appeals Chamber, 21 May 2003, § 20 (Ojdanić Decision), Separate Opinion of Judge Shahabuddeen, § 7.
15. Ibid., §192.
16. Judgement, Krnojelac (IT-97-25), Appeals Chamber, 17 September 2003, § 70 f.
17. Text adopted by the ILC at its 48th session, in 1996, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. Cf. Report of the International Law Commission on the work of its 48th session, 6 May - 26 July 1996, A/51/10, §§ 30-50.
18. Cf. Judgement, Semanza (ICTR-97-20), Trial Chamber, 15 May 2003, § 384.
19. Cf. section 8 of the Criminal Law Act.
20. If the principal offender did not perform the actus reus and hence is not guilty, neither is the accomplice guilty (Thornton v. Mitchell (1940) 1 All ER 339).
21. Ferguson v. Weaving [1951] 1 KB 818-819.
22. See also Andrew Ashworth, Principles of criminal law (1999), p. 429.
23. Bainbridge (1960) 1 QB 129;
24. Attorney General v. Able (1984) 1 QB 795.
25. Ferguson v. Weaving [1951] 1 KB 814.
26. Cf. section 4 of the Criminal Law Act.
27. It is noteworthy that the Law Commission has proposed to reduce the forms of complicity to assisting and encouraging (LCCP, Assisting and encouraging crime, Part IV).
28. A-G v. Able (1984) 1 QB 795, 812 (Woolf J.).
29. Cf. Rubie v. Faulkner (1940) 1 KB 571.
30. Tuck v. Robson (1970) 1 All ER 1175.
31. See also Du Cros v. Lambourne (1907) 1 KB 40.
32. Clarkson (1971) 3 All ER 344.
33. NCB v. Gamble (1959) 1 QB 11.
34. This point was confirmed in R v. J.F. Alford Transport Ltd (1997) 2 Cr App R 326.
35. Bainbridge (1960) 1 QB 219.
36. Cf. also Maxwell v. DPP for Northern Ireland (1978) 3 All ER 1140.
37. J.C. Smith and B. Hogan, Criminal Law (1996), p. 138.
38. J.R. Spencer, Trying to help another person to commit a crime, in P. Smith (ed.), Criminal Law. Essays in Honour of J.C. Smith (1987), pp. 148, 164.
39. Cf. Art. 121(7), §§ 1, 2 of the new Penal Code.
40. Even attempted complicity is punished (Crim., 14 April 1904, Rec. Sirey 1907, I.251).
41. Cf. Art. 59 of the old Penal Code.
42. Crim., 17 May 1962, D, 1962, 473.
43. Crim., 1 September 1987, B No. 308.
44. Cf. Arts. 321(1), 434(6) of the new Penal Code.
45. Cf. for instance the cases involving a customs agent and a notary for having turned a blind eye (Crim., 27 October 1971, B. No. 284; Crim., 1975).
46. Cf. Art. 223(6) of the new Penal Code.
47. Cf. Art. 121-7 of the new Penal Code.
48. F. Desportes and F. Le Gunehec, Le nouveau droit pénal, Tome 1: Droit pénal général (1998), p. 436.
49. The knowledge requirement is applicable even to complicity in genocide and crimes against humanity (Crim., 23 January 1997, D 1997, 147).
50. Crim., 31 December 1947, B. No. 270; 21 May 1996, B. No. 206.
51. Judgement, Akayesu (ICTR-96-4), Trial Chamber, 2 September 1998, § 528.
52. Judgement, Furundžija (IT-95-17/1-T), Trial Chamber, 10 December 1998, § 243.
53. Ibid., § 224, citing the Hechingen Deportation case, settled by a German court in the French Occupied Zone of Germany.
54. However, the responsibility of the latter need not be proved in order to hold the accomplice accountable. This Trial Chamber in fact noted that "all criminal systems provide that an accomplice may also be tried, even where the principal perpetrator of the crime has not been identified, or where, for any other reasons, guilt could not be proven." See Akayesu TJ, § 530.
55. Furundžija TJ, §§ 233-234.
56. See also Judgement, Blaskić (IT-95-14), Trial Chamber, 3 March 2000, § 285.
57. Judgement, Tadić (IT-94-1-T), Trial Chamber, 7 May 1997, § 691;
58. Judgement, Delalić (IT-96-21), Trial Chamber, 16 November 1998, § 326.
59. UN Doc. A/51/10, 24 (emphasis in the original).
60. Furundz¡ija TJ, § 232.
61. Tadić, § 229.
62. See also Judgement, Delalić (IT-96-21), Appeals Chamber, 20 February 2001, § 352;
63. Judgement, Blas¡kić (IT-95-14), Appeals Chamber, 29 July 2004, §§ 45-46.
64. Judgement, Brd-anin (IT-99-36), Appeals Chamber, 3 April 2007, § 151.
65. See e.g. Judgement, Musema (ICTR-96-13), Appeals Chamber, 27 January 2000, § 126.
66. Judgement, Blas¡kić (IT-95-14), Trial Chamber, 3 March 2000, § 271.
67. Judgement, Kajelijeli (ICTR-98-44A), Trial Chamber, 1 December 2003, § 766.
68. Judgement, Strugar (IT-01-42), Trial Chamber, 31 January 2005, § 349.
69. Judgement, Gacumbitsi (ICTR-2001-64), Appeals Chamber, 7 July 2006, § 140.
70. Akayesu TJ, § 484.
71. See also Kayishema and Ruzindana TJ, § 196.
72. Judgement, Kvoc¡ka (IT-98-30/1), Trial Chamber, 2 November 2001, § 254.
73. Judgement, Ntakirutimana and Ntakirutimana (ICTR-96-10 and ICTR-96-17), Trial Chamber, 21 February 2003, § 787.
74. Tadić TJ, § 689.
75. Semanza TJ, § 384.
76. Guénaë l Mettraux further notes that "the Prosecution has never been requested to specify in any of its indictments whether the accused had been charged in relation to one sort of assistance rather than the other". See G. Mettraux, International Crimes and the ad hoc Tribunals (2005), p. 284.
77. Nevertheless, in a few cases the accused was convicted only of abetting (Akayesu TJ, § 707.
78. Musema AJ, § 908.
79. Judgement, Muhimana (ICTR-95-1B).
80. Trial Chamber, 28 April 2005, § 553.
81. Semanza TJ, § 384, fn. 638, where reference is made to several criminal law manuals and dictionaries.
82. Judgement, Orić (IT-03-68), Trial Chamber, 30 June 2006, § 271.
83. Delalić AJ, § 352.
84. See also Blas¡kić AJ, § 48.
85. Judgement, Ntagerura (ICTR-99-46), Appeals Chamber, 7 July 2006, § 372.
86. Judgement, Blagojević and Jokić (IT-02-60), Trial Chamber, 17 January 2005, § 731.
87. Judgement, Blagojević and Jokić (IT-02-60), Appeals Chamber, 9 May 2007, § 180.
88. Such a requirement was already afirmed in the ILC's Draft Code (UN Doc. A/51/10, 21).
89. See e.g. Kordic¡ and erkez TJ, § 375, fn. 509.
90. Judgement, Bagilishema (ICTR-95-1A), 7 June 2001, § 29, fn. 19.
91. Blas¡kić AJ, § 663.
92. Ntagerura AJ, § 334.
93. Tadić AJ, § 188.
94. Judgement, Ntagerura (ICTR-99-46), Trial Judgement, 25 February 2004, § 660.
95. Akayesu TJ, § 548.
96. Furundz¡ija TJ, § 209.
97. See also Blas¡kić TJ, § 284.
98. Judgement, Kunarac (IT-96-23 and 96-23/1), Trial Chamber, 22 February 2001, § 393.
99. Kayishema and Ruzindana TJ, § 202.
100. Judgement, Kayishema and Ruzindana (ICTR-95-1), Appeals Chamber, 21 May 1999, §§ 201-202.
101. Judgement, Mpambara (ICTR-01-65), Trial Chamber, 12 September 2006, § 22.
102. Orić TJ, § 283.
103. Furundz¡ija TJ, § 232.
104. See also Kunarac TJ, § 393.
105. Judgement, Krnojelac (IT-97-25), Trial Chamber, 15 March 2002, § 89.
106. Judgement, Simić (IT-95-9), Trial Chamber, § 165.
107. Judgement, Ndindabahizi (ICTR-2001-71-I), Trial Chamber, 15 July 2004, § 457.
108. Judgement, Seromba (ICTR-2001-66), Trial Chamber, 13 December 2006, § 308.
109. Blaškić AJ, § 47 (emphasis added).
110. See also Ntagerura AJ, § 370;
111. Brd{stroke}anin AJ, § 274.
112. See Ntagerura AJ, § 370;
113. Brd{stroke}anin AJ, § 274.
114. See also Judgement, Rutaganira (ICTR-95-1C), Trial Chamber, 14 March 2005, § 64.
115. The expression is borrowed from the Brd{stroke}anin Appeal Judgement, § 274.
116. Cf. Article 7(3) of the ICTY Statute;
117. Article 6(3) of the ICTR Statute.
118. As pertains to superior responsibility
119. see e.g. Review of indictment pursuant to Rule 61 of the Rules of procedure and evidence, Nikolić (IT-94-2-R61), 20 October 1995, § 24.
120. It should be noted that the jurisprudence is currently divided on the nature of the criminal liability of the commander. While superior responsibility was commonly considered as a mode of liability for the crimes of subordinates (Judgement, Delalić (IT-96-21), Trial Chamber, 16 November 1998, §§ 331-333),
121. recently some ICTY Trial Chambers challenged this assumption (Judgement, Halilović (IT-01-48), Trial Chamber, 16 November 2005, § 54;
122. Judgement, Hadžihasanović (IT-01-47), Trial Chamber, 15 March 2006, §§ 74-75).
123. In particular, the Orić chamber held that the superior's failure to act is a separate crime of omission (Orić TJ, §§ 292-293).
124. The issue was argued on appeal but the Appeals Chamber, as a result of its reversal of Orić's convictions under Article 7(3), considered it unnecessary to address it.
125. Kayishema and Ruzindana TJ, § 210.
126. Blaškić TJ, § 337 (emphasis in the original).
127. Krnojelac TJ, § 173;
128. Judgement, Naletilić and Martinović (IT-98-34), Trial Chamber, 31 March 2003, § 81;
129. Judgement, Galić (IT-98-29), Trial Chamber, 5 December 2003, § 177.
130. Blaškić AJ, § 91
131. referring to Judgement, Aleksovski (IT-95-14/1), Appeals Chamber, 24 March 2000, § 183.
132. This approach was finally endorsed by the ICTR Appeals Chamber in Kajelijeli AJ, § 81.
133. See e.g. A.M. Maugeri, La responsabilité des supérieurs hiérarchiques et l'effet d'exoné ration de l'ordre du supérieur dans le Statut de la Cour Pénale Internationale, in M. Chiavario (ed.), La justice pénale internationale entre passéet avenir (2003), p. 318,
134. who speaks in terms of violation "du principe du ne bis in idem substantial."
135. Judgement, Kordić and Čerkez, Trial Chamber, § 369.
136. Furundžija TJ, § 252 (emphasis in the original).
137. In fact some of these cases required that the accomplice share the criminal intent of the principal.
138. Ibid., §§ 237-241.
139. The Chamber also cited Art. 30 (Mental element) of the ICC Statute, which speaks of 'intent and knowledge'. The appropriateness of this reference, though, is doubtful, considering that the Rome Statute requires a particular mens rea from accomplices, which is dealt with in Art. 25.3 (c).
140. See supra, § 2.
141. Blaškić TJ, § 286.
142. See also Bagilishema TJ, § 32.
143. Blaškić AJ, § 49.
144. See also Tadić AJ, § 229;
145. Kayishema and Ruzindana TJ, § 205.
146. Kunarac TJ, § 392.
147. Delalic TJ, § 328.
148. Orić TJ, § 288.
149. Ntagerura AJ, § 370;
150. Judgement, Mrkšić (IT-95-13), Trial Chamber, 29 September 2007, § 556;
151. Seromba TJ, § 309;
152. Judgement, Seromba (ICTR-2001-66), Appeals Chamber, 12 March 2008, § 56;
153. Boškoski and Tarčulovski (IT-04-82), Trial Chamber, 10 July 2008, § 403.
154. Tadić AJ, § 229 (emphasis added).
155. See also Kunarac TJ, § 392;
156. Krnojelac TJ, § 90;
157. Aleksovski AJ, §§ 162-163;
158. Krnojelac AJ, §, 33;
159. Kordič and Čerkez TJ, § 399;
160. Judgerment, Simić (IT-95-9), Appeals Chamber, 28 November 2006, § 86.
161. Furundžija TJ, § 246.
162. See also Blaškić TJ, § 287;
163. KvočKa TJ, § 255;
164. Naletilić and Martinović TJ, § 63;
165. Brd{stroke}anin TJ, § 272;
166. Strugar TJ, § 350.
167. Blaškić AJ, §§ 45, 50.
168. Simić AJ, § 86.
169. See Articles II and III of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
170. William A. Schabas further argues that in comparative criminal law 'aiding and abetting' and 'complicity' mean essentially the same thing.
171. See W.A. Schabas, Genocide in International Law (2000), p. 293.
172. See Offcial Report, Fifth Series Parliamentary Debates, and Commons 1968-1969, vol. 777, pp. 480-509.
173. See Akayesu TJ, fn. 105;
174. Judgement, Musema (ICTR-96-13), Trial Chamber, 27 January 2000, §§ 171, 173;
175. Stakić TJ, § 534. In contrast, conspiracy, direct and public incitement and attempt to commit genocide have been consistently considered as inchoate crimes.
176. See e.g. Judgement, Rutaganda (ICTR-96-3), Trial Chamber, 6 December 1999, § 34;
177. Musema TJ, § 115;
178. Semanza TJ, § 378;
179. Brd{stroke}anin TJ, § 725.
180. Ibid., § 531.
181. See also Judgement, Krstić (IT-98-33), Appeals Chamber, 19 April 2004, § 143.
182. See, e.g., Brd{stroke}anin TJ, §§ 724-727;
183. Judgement, Blagojević and Jokić TJ, §§ 684-685;
184. Decision on Defence Motions Challenging the Pleading of a Joint Criminal Enterprise in a Count of Complicity in Genocide in the Amended Indictment, Karemera (ICTR-98-44), Trial Chamber, 18 May 2006, § 8. Judge Short has correctly noted that complicity in genocide is a particular form of responsibility, whose peculiarity lies in the fact that it only applies to the crime of genocide (ibid., Separate Opinion of Judge Short on Complicity in Genocide and Joint Criminal Enterprise Theory, § 8).
185. As was noted by Judge Short, "complicity in genocide is often charged as an alternative count to the count of genocide [.] and can result in a finding of guilt for 'complicity in genocide'"
186. (ibid., § 8)
187. Cf. also Gacumbitsi AJ, Separate Opinion of Judge Shahabuddeen, § 57.
188. Schabas, Genocide in International Law.
189. supra note 93, 286.
190. Ibid., 301 f.;
191. Mettraux, International Crimes and the ad hoc Tribunals.
192. supra note 54, p. 257 ff.
193. Mettraux affirms, in primis, that the requirement of knowledge of the principal's genocidal intent by the accomplice is not suficiently supported by state practice and thereby cannot be said to be part of customary law. He also argues: "[i]f[.] a conviction for aiding and abetting genocide may be entered without the principal having been identi.ed and [.] the establishment of the accused's mens rea depends on proof having been made of his knowledge of the principal's genocidal intent, how could he ever be said to have known of something that has not been established by the court? "
194. Ibid., p. 260
195. For a contrary opinion see Harmen Van Der Wilt, Genocide, complicity in genocide, and international v. domestic jurisdiction: reflections on the Van Anraat case, 4 Journal of International Criminal Justice (2006) at p. 246,
196. who comments: "Schabas confuses the intent on furthering the crime with the mens rea in respect of the elements of the crime." In a similar vein see also Krstić AJ, Partial Dissenting Opinion of Judge Shahabuddeen, § 66.
197. See Akayesu TJ, § 523.
198. See also Kayishema and Ruzindana TJ, § 93;
199. Judgement, Jelisić (IT-95-10), Appeals Chamber, 5 July 2001, § 47.
200. In this sense see Krstić AJ, Partial Dissenting Opinion of Judge Shahabuddeen, § 64.
201. These authorities were mentioned in Krstić AJ, § 141.
202. The knowledge requirement with respect to complicity in genocide was also endorsed by a Dutch court in the Van Anraat case (District Court, 23 December 2005, LJN: AU8685).
203. Akayesu TJ, § 547.
204. An opposite approach, requiring specific intent for complicity in genocide, and knowledge for aiding and abetting genocide, was expressed in Kayishema TJ, at §§ 91, 205.
205. Yet it was cited with approval in Musema AJ, § 170 f.
206. See, for instance, § 545 of the Judgement, where the Chamber affirms that "an accused is liable as an accomplice to genocide if he knowingly aided or abetted or instigated one or more persons in the commission of genocide" (emphasis added).
207. Prosecutor v. Akayesu TJ, § 537.
208. Decision on Rule 98 Bis Motion for Judgement of Acquittal, Stakić (IT-97-24), Trial Chamber, 31 October 2002, § 60.
209. In fact, this position has constantly been upheld by the Prosecution. See e.g. Prosecution's Final Trial Brief (Public Version), in Stakić, 30 May 2003, §§ 293-296;
210. Judgement, Ntakirutimana and Ntakirutimana (ICTR-96-10 and ICTR-96-17), 13 December 2004, §§ 495, 500.
211. Ibid., § 65 (emphasis added).
212. In the same sense see also Bagilishema TJ, § 71.
213. Semanza TJ, §§ 394-395;
214. followed by Stakić TJ, § 531.
215. Krstić AJ, § 139.
216. This view was endorsed by the ICTR Appeals Chamber in Ntakirutimana and Ntakirutimana AJ, § 500
217. and followed by Brd{stroke}anin TJ, §§ 729-730;
218. Blagojević and Jokić TJ, § 679.
219. Ibid., § 142.
220. Cf. Ntakirutimana and Ntakirutimana AJ, §§ 371, 500-501;
221. Semanza AJ, § 316.
222. This distinction is applicable to every category of JCE. Nevertheless, as far as JCE III is concerned, it bears noting that an accused can be held responsible even for crimes not agreed upon in the common plan if it was foreseeable that such crimes might be perpetrated and the accused willingly took that risk (cf. Tadić AJ, § 228).
223. Chile Eboe-Osuji instead argues that the concept of _complicity in genocide' is apt to capture "accessories after the fact of genocide, as well as the residue of culpable genocide-related conducts that do not rise to the level of individual responsibility described in Article 6(1)." See C. Eboe-Osuji, "Complicity in Genocide" versus "Aiding and Abetting Genocide", 3 Journal of International Criminal Justice (2005), p. 79.
224. The author's stance is a consequence of his interpreting Article 6(1) in terms of the unitary-participation model, thus considering aiding and abetting a primary form of responsibility. The same is required for instigating. See art. 25(3)(b).
225. See ICC Rule of Procedure and Evidence 145(1)(c).
226. See also art. 78(1), ICC Statute, which states that "[i]n determining the sentence the Court shall take into account [.] the individual circumstances of the convicted person."
227. Direct and public incitement to genocide in fact is the object of a specific mention in art. 25(3)(e).
228. Cf. W.A. Schabas, Enforcing international humanitarian law: Catching the accomplices, 842
229. International Review of the Red Cross (2001), p. 448.
230. Its inclusion in the provision is supported by Eser (cf. Eser, 'Individual Criminal Responsibility', supra note 5, 807).
231. It should be mentioned that a footnote to art. 23 of the Draft ICC Statute (1998) reads: "[t]his presumption [that ex post facto assistance sufices for criminal liability] was questioned in the context of the ICC. If aiding, etc., ex post facto were deemed necessary to be criminalized, an explicit provision would be needed."
232. The final draft submitted by the Preparatory Committee to the Rome Conference imposed the individual criminal responsibility on who "[with intent] [knowledge] to facilitate the commission of such a crime, aids, abets or otherwise assists in the commission." Cf. M. Cherif Bassiouni, The Legislative History of the Footnote 121 continued International Criminal Court: An Article-by-Article Evolution of the Statute (2005) 194.
233. So far art. 25.3(c) has never been relied upon in the arrest warrants.
234. See, e.g., K. Ambos, Article 25, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), p. 483;
235. R. Cryer, H. Friman, D. Robinson, E. Wilmshurst, An Introduction to International Criminal Law and Procedure (2007), p. 312.
236. Cf. Art. 25(3)(d)(ii). According to Reggio, a _possible reason' for the lower mental element required by Art. 25.3(d) is that group crimes are considered "more serious than crimes committed by a single person". See A. Reggio, Aiding and abetting in international criminal law: the responsibility of corporate agents and businessmen for "trading with the enemy" of mankind, 4 International Criminal Law Review (2005), p. 647 fn. 102.
237. On the issue, see generally L. Gradoni, 'L'attestation du droit international pé nal coutumier dans la jurisprudence du Tribunal pour l'ex-Yougoslavie: "ré gularités" et "régles"' in M. Delmas-Marty, E. Fronza, E. Lambert-Abdelgawad (eds.), Les sources du droit international pénal (2005), p. 25 ff.
238. See E. Fronza and N. Guillou, Les dynamiques d'é laboration des norms pénales internationales: une analyse à partir de la jurisprudence sur le viol et la participation criminelle, in M. Chiavario (ed.), La justice pénale internationale entre passéet avenir, supra note 74, 28 (emphasis in the original).
239. See also I. Bantekas, 'Reflections on some sources and methods of international criminal and humanitarian law' (2006) 6 International Criminal Law Review, p. 131,
240. who observes that "[t]here clearly seems to be a well-cultivated culture in the workings of the ad hoc tribunals, unlike the careful judgements of the ICJ, that judicial decisions of both domestic and international tribunals may by themselves evince the crystallization of a rule of customary international law."
241. Apart from English and French law, the main domestic systems referred to in the case-law were those of Canada, United States, Germany, China, Argentina and, obviously, Rwanda and the Socialist Federal Republic of Yugoslavia. Cf. Blagojević and Jokić TJ, fn. 2208.