Rethinking Aggression as a Crime and Formulating Its Elements: The Final Work-Product of the Preparatory Commission for the International Criminal Court

Leiden Journal of International Law

Volumn 15, Issue 4, 2002, Pages 859-890

  Clark, Roger S ^a  

^a and law in the military   (United States)

Author keywords

aggression; International Criminal Court; international criminal law; jurisdiction

Indexed keywords

EID: 85011486650     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156502000389     Document Type: Article

References (76)

1. Rome Statute of the International Criminal Court, Art. 5(2), UN Doc. A/CONF.183/9 (1998) ('Rome Statute'). Arts. 121 and 123 deal with amendments, the first of which may not be made until seven years after the entry into force of the Statute. (Some essential machinery provisions of an “institutional” nature may be changed earlier under Art. 122.) Art. 121 contemplates amendments agreed upon at regular meetings of the Assembly of States Parties; Art. 123 deals with Review Conferences to consider amendments. The first Review Conference must take place seven years after the entry of the Statute into force. Art. 5(2) is hardly a shining example of the art of drafting. Like most commentators, I read the words “in accordance with articles 121 and 123” literally as not permitting the amendment to add aggression until seven years after the Statute enters into force. But see O. Triffterer, Preliminary Remarks, in O. Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court 17, at 40 (1999) who argues the phrase refers to procedure only and not to the time frame and, thus, that the necessary amendments can be made at any time.
2. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/10 (1998), at 8-9.
3. UN Doc. PCNICC/2002/WGCA/L.2/Rev.1, Draft report of the working group-Draft resolution of the Assembly of States Parties on the continuity of work in respect of the crime of aggression, PrepCom Report, efinition of the crime of aggression and conditions for the exercise of jurisdiction; note 4, at 2. Somewhat unrealistically, the Final Act had instructed the Commission to submit proposals on aggression to the Assembly at a Review Conference. Since the first Review Conference is to take place seven years after the entry into force of the Statute (Art. 123) and the PrepCom expired with the conclusion of the first meeting of the Assembly of States Parties (Resolution F, para. 8), there was always an obvious gap of several years between the two events. The new committee of the Assembly of States Parties is unlikely to be functional before late 2003 at the earliest.
4. A particularly useful paper before the PrepCom was the Secretariat's Historical review of developments relating to aggression, UN Doc. PCNICC/2002/WGCA/L.1 and Add.1. The document analyzes the work of the Nuremberg Tribunal, that of the American and French tribunals established pursuant to Control Council Law No. 10 and the Tokyo Tribunal. It then turns to precedents concerning aggression and the use of force in general in the Security Council, the General Assembly and the International Court of Justice. Another helpful document is UN Doc. PCNICC/1999/INF/2, Compilation of proposals on the crime of Aggression submitted at the Preparatory Committee on the Establishment of an International Criminal Court (1996-1998), the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (1998) and the Preparatory Commission for the International Criminal Court (1999). Post-1999 documents will be mentioned as appropriate in what follows. All official documents are listed in the PrepCom Report, Draft report of the working group-Draft resolution of the Assembly of States Parties on the continuity of work in respect of the crime of aggression, PrepCom Report note 4, at 6. Many participants contributed to what is very much a collective effort. Germany worked especially hard before and at Rome. Particularly influential since Rome were the contributions by the Arab states, by Bosnia and Herzegovina, New Zealand and Romania, by Greece and Portugal, and by Italy. Colombia, Guatemala and Thailand made important conceptual clarifications. Greece and Portugal have insisted throughout that the Court itself must make the factual findings as to all relevant elements of the offense. In addition to formal papers, useful Non-Governmental Organization ('NGO') material is contained in a paper by J. Bertram-Nothnagel, dated 14 April 2002, entitled Some Due Process Questions with regard to the Crime of Aggression; and a Discussion Paper on the definition of an act of aggression, the crime of aggression and the exercise of jurisdiction by the ICC, by N. Strapatsas, a doctoral student at the Irish Centre for Human Rights, Galway, dated 12 April 2002. There is extensive discussion of the PrepCom's debates in M. Politi & G. Nesi (Eds.), The International Criminal Court and the Crime of Aggression, Proceedings of the Trento Meeting of 30 May-1 June 2001 (2002).
5. Most of the proposals before the PrepCom rolled up these two kinds of issues. Bosnia and Herzegovina, New Zealand and Romania made a valiant effort to distinguish the two (and to support a role for the International Court of Justice) by submitting separate papers on them. See UN Doc. PCNICC/2001/WGCA/DP.2/Add.1 (Conditions under which the Court shall exercise jurisdiction with respect to the crime of aggression) and PCNICC/2001/ WGCA/DP.2 (Definition of aggression). The aim was to force people to think in criminal law terms. The Coordinator's final paper, A particularly useful paper before the PrepCom was the Secretariat's Historical review of developments relating to aggression note 4, follows essentially this bifurcated structure, adding a further part on Elements.
6. See Proposal submitted by Samoa, Most of the proposals before the PrepCom rolled up these two kinds of issues. note * and revised version in Part II of Coordinator's Discussion Paper, Most of the proposals before the PrepCom rolled up these two kinds of issues. note 4.
7. Report of the Preparatory Commission for the International Criminal Court, Addendum, Part II, Finalized draft text of the Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2. The draft was adopted at the first meeting of the Assembly of States Parties to the Rome Statute, held in New York, 3-10 September 2002. On The Elements in general, see R. Lee, et al. (Eds.), The International Criminal Court: Elements of Crimes and Rules of Evidence and Procedure (2001); K. Kittichaisaree, International Criminal Law (2001); and R.S. Clark, The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences, 12 Crim. L. Forum 291 (2001)
8. Ms. entitled Updated Siracusa Draft produced by numerous NGOs and individuals dated March 1996. While never produced as an “official” UN document, it was very influential in the drafting. On drafting the general part, see P. Saland, International Criminal Law Principles, in R. Lee (Ed.), The International Criminal Court: the Making of the Rome Statute, Chapter 7 (1999); Clark, Report of the Preparatory Commission for the International Criminal Court note 12. I do not believe there was ever a formal decision to include the general part, but there was certainly a tacit consensus early on that something had to be included.
9. See, especially, Art. 25 (individual responsibility, including group responsibility and attempts); Art. 26 (exclusion of jurisdiction over persons under eighteen); Art. 27 (irrelevance of official capacity); Art. 28 (responsibility of commanders and other superiors); Art. 29 (non-applicability of statute of limitations); and Art. 30 (mental element).
10. Note the rather sparse set of “grounds for the exclusion of criminal responsibility” in Art. 31 (insanity, intoxication, defense of self or another, and duress). See also Art. 32 (mistake of fact or mistake of law) and Art. 33 (superior orders and prescription of law). Much is left to the judges to create defenses on a case by case basis, as contemplated by Art. 31(2) and (3) (Court may consider grounds other than those listed where those grounds are derived from “applicable law as set forth in article 21” of the Statute). (Art. 21 refers, in addition to the Statute, to “applicable treaties and the principles and rules of international law,” to general principles of law in narrowly defined circumstances, and to the ICC's previous decisions.)
11. Infra, especially at notes 78-100.
12. In a consensus negotiation, one major player may achieve its way if it is determined enough. In spite of the initial skepticism of most participants, drafting The Elements turned out to be a salutary exercise which resulted in the clarification of many points in both the special and the general parts of the Statute.
13. Rome Statute, Art. 9.
14. The Court must have final say in view of the admonition in Art. 9(3) of the Statute that the Elements “shall be consistent with this Statute.”
15. Rome Statute, Art. 66 (heading).
16. I have tried to come to terms elsewhere with the difficult notion of “intent and knowledge” which seems to be derived from French and German law but is unintelligible to most common lawyers, Clark, Id. note 12, at 302, n. 37. I do not think that anything significant turns on the problem in the present context, although the awkwardness it causes is reflected in the variations of drafting for the mental elements in the Samoan draft attached to the Coordinator's final draft, Id. note 4.
17. See Clark, Pre-Rome drafts of the Statute had also contained efforts at a separate definition of nonmental elements, variously described with language such as “actus reus (act and/or omission),” note 12, at 299-303.
18. E.g., in Art. 28, the responsibility of military commanders for crimes committed by forces under their control is based on a kind of negligence; the responsibility of non-military superiors is a kind of recklessness or dolus eventualis liability. Superior orders, in Art. 33 has a concept that some things are “manifestly unlawful” which appears to entail a variety of negligence.
19. See the italicized words, the responsibility of military commanders for crimes committed by forces under their control is based on a kind of negligence; the responsibility of non-military superiors is a kind of recklessness or dolus eventualis liability. note 11.
20. There seems to be no logical reason why every crime will necessarily have each of the three. Thus, for example, the war crimes of declaring that there shall be no quarter, or using prohibited weapons, may (fortuitously) take place in situations where no one is hurt. There are, in such lucky instances, conduct and circumstance elements but not what we would normally class as consequences.
21. On mistakes in general, see O. Triffterer, Article 32, in Triffterer (Ed.), There seems to be no logical reason why every crime will necessarily have each of the three. note 1, at 561; Clark, There seems to be no logical reason why every crime will necessarily have each of the three. note 12, at 308-312.
22. See further, infra notes 67-77.
23. What is more, the existence or non-existence of that element will be determined by another entity such as the Security Council. I do not exclude the possibility that the Assembly of States Parties may conclude that the present structure is entirely misconceived and start again. In a world without a sole superpower and five Permanent Members of the Security Council, it might have been possible by now to have reached a position closer to that consistently supported by Greece and Portugal in which the ICC would itself determine all the elements of the offense. Who knows what the next few years will bring by way of paradigm shifts. The Court itself has been a big one! See W. Schabas, International Criminal Court: The Secret of its Success, 12 Crim. L. Forum 415 (2001).
24. See, e.g., the usage of the “contextual circumstances” in The Elements, What is more, the existence or non-existence of that element will be determined by another entity such as the Security Council. note 12, at 6 (Art. 6(a)(4)) (genocide by killing); at 9 (Art. 7(1)(a)(2)) (crime of humanity of murder); and 18 (Art. 8(2)(a)(i)(4)) (war crime of wilful killing). Personally, I found the usage redundant but harmless. However described, these are (circumstance) elements, as I explain the term in the text; they must be proved by the prosecution. Perhaps the act of aggression by a state, which is an element of the crime of aggression by an individual, can be classified as a “contextual circumstance.”
25. The Elements, the usage of the “contextual circumstances” in The Elements note 12, at 5.
26. The Elements note 4.
27. Presumably a three-judge Pre-Trial Chamber as contemplated for significant determinations in the Rome Statute, Arts. 39(2) and 57, but this should probably be clarified in the articles to be added to the Statute.
28. Coordinator's paper, Presumably a three-judge Pre-Trial Chamber as contemplated for significant determinations in the Rome Statute note 4, at para. 5.
29. As the Secretariat's Historical review indicates, there is significant practice on the part of the General Assembly in making determinations that aggression has occurred. See UN Doc. PCNICC/2002/WGCA/L.1, Coordinator's paper, Presumably a three-judge Pre-Trial Chamber as contemplated for significant determinations in the Rome Statute note 4, at para. note 6, at 123 (China and North Korea in Korea); 124-125 (South Africa in Namibia); 125 (South Africa in Angola, Botswana, Lesotho, Mozambique, Seychelles, Swaziland, Zambia and Zimbabwe); 126 (Portugal in Guinea-Bissau and Cape Verde); 127 (Israel in Iraq, Lebanon, Palestine and Syria); 128 (Yugoslavia and Croatia in Bosnia and Herzegovina). This practice might reasonably be regarded, in terms of the 1969 Vienna Convention on the Law of Treaties, Art. 31(3)(b), as “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” and thus relevant to the interpretation of the Charter.
30. The General Assembly has power under Art. 96 of the Charter to ask for the Court's opinion on “any legal question.”
31. See discussion in the Secretariat's Historical review, The International Court of Justice has never made a finding that an act of aggression has occurred, but there is some discussion of the General Assembly's Definition of Aggression in Military and Paramilitary Activities in and against Nicaragua note 6, at 45. Similar provisions applied to trials under Germany, United States Zone, Ordinance No. 7. Id. Note also the analogous suggestion that preclusive effect should be given in subsequent cases to a determination by the ICC that a situation was one of armed conflict (or international as opposed to non-international armed conflict), L.N. Sadat, the International Criminal Court and the Transformation of International Law: Justice for the New Millennium 147 (2002).
32. Charter of the International Military Tribunal at Nuremberg, Art. 10, 82 UNTS 279. Individuals might be brought for trial “for membership therein before national, military or occupation courts.” The “criminal nature” of the group or organization “is considered proved and shall not be questioned.”
33. Arts. 6, 7 and 8 of the Rome Statute in fact read “this” rather than “the present.”
34. Domestic law might have a wider offense; the law of state responsibility might eventually conclude that some wrongful acts by states amount to “crimes” for which there is state responsibility. The Coordinator's proposal is neutral on what epithet is to be used to describe the state's actions-the important point is that it comes within the description of an “act of aggression.”
35. The Coordinator's draft speaks of “the State concerned”. General Assembly Res. 3314, Domestic law might have a wider offense; the law of state responsibility might eventually conclude that some wrongful acts by states amount to “crimes” for which there is state responsibility. note *, which provides the basis for this part of the analysis, has an “Explanatory note” following its first article which says that “'State’ […] [i]ncludes the concept of group of States where appropriate.” Aggressions are often group efforts.
36. Note that this is not a question of immunity. Art. 27 of the Rome Statute is emphatic that there is no exemption from criminal responsibility for an official, including a head of state. Here the crime is simply defined in such a manner as not to include some heads. The noninclusion of the figurehead also gains some support from the use of the word “actively” to modify the verbs later in the article.
37. See discussion of these cases in the Secretariat's Historical review, Note that this is not a question of immunity. note 6, at 46 (I.G. Farben); 50 (Krupp); and 83 (Roechling). (Roechling's conviction in a lower tribunal was reversed on appeal, apparently on the basis that “his vanity perhaps allowed him to attribute more authority to himself than he was actually entitled to.”)
38. On these words, see also discussion of these cases in the Secretariat's Historical review note 49.
39. There is probably an analogy here with domestic law concerning the attribution of liability to secondary parties whose physical contribution to a crime, given an appropriate mental element, may be minimal. See, e.g., Wilcox v. Jeffrey, [1951] 1 All ER 464 (KBD) (author of review of concert by famous saxophone player performing in breach of law concerning aliens working convicted as aider and abettor) and State ex rel. Attorney-General v. Tally, 102 Ala. 25 (1894) (judge who ordered non-delivery of telegram that might have saved victim's life guilty of aiding and abetting).
40. The facts in the hypothetical no doubt support a plea of mitigation, but what I am concerned with here is whether complete exoneration is possible.
41. Clark, The facts in the hypothetical no doubt support a plea of mitigation, but what I am concerned with here is whether complete exoneration is possible. note 12, at 309-311.
42. The German proposal from which this language was derived used the word “manifest” rather than “flagrant.” note 32.
43. For the argument that some material elements may be merely jurisdictional and require no mental element on the part of the perpetrator, see Clark, The German proposal from which this language was derived used the word “manifest” rather than “flagrant.” note note 12, at 326-327 and 330-331. The analogy is with a typical territorial jurisdiction provision. A person charged with homicide in New Jersey will not be heard to say that he thought (even reasonably) that he was in Pennsylvania at the time of the killing. Of course, the prosecution must prove the territorial element, namely in my hypothetical that the events occurred in New Jersey. But his mens rea as to that element is irrelevant.
44. For the argument that some material elements may be merely jurisdictional and require no mental element on the part of the perpetrator note 12, at 5. The background to this, the Canadian case of R. v. Finta, [1994] 1 SCR 701, 112 DLR (4th) 513, is discussed in Clark, For the argument that some material elements may be merely jurisdictional and require no mental element on the part of the perpetrator note 12, at 322-323.
45. See infra, at note 72. To my mind, using the concept “war of aggression” without further definition, is unnecessarily adding another layer of vagueness.
46. General Assembly Res.
47. An example of Art. 3(b) of the Definition, text infra, at note 72.
48. An example of Art. 3(b) of the Definition notes 34-35.
49. Discussion paper proposed by the Coordinator, Id. note 4. I am, however, unrepentant in the view expressed in the Samoan Proposal, Id. note *, that such a condition or precondition is also properly viewed (like the existing preconditions in Art. 12 of the Rome Statute) as an element of the offense. Unless the ICC itself is given the power to decide the state aggression itself, the prosecutor must come prepared to prove beyond reasonable doubt that the Security Council or someone else has so decided. Jurisdictional elements like this are a sub-category of circumstance elements! They do not normally, though, attract a mens rea element to themselves.
50. The Rome Statute, Art. 17(d), also contains power for the ICC itself to determine that a case is “inadmissible” where “it is not of sufficient gravity to justify further action by the Court.” Rules permitting the dismissal of criminal cases on de minimis grounds are also to be found in domestic law.
51. See, generally, B. Ferencz, The United Nations Consensus Definition of Aggression: Sieve or Substance, 10 J. Int'l Law & Econ. 701, at 713 (1975). We are speaking here of the Security Council's justifying in the sense of denying state responsibility. The Rome Statute speaks of “grounds for the exclusion of responsibility” in relation to individual criminality. Rules permitting the dismissal of criminal cases on de minimis grounds are also to be found in domestic law. note 15. For the purposes of individual criminal responsibility, one may concede that there was an act of aggression that could not be “justified” in the Security Council but still insist that the accused is excluded from personal responsibility in the ICC.
52. General Assembly Res. 3314, The United Nations Consensus Definition of Aggression: Sieve or Substance note *, at Art. 3.
53. General Assembly Res. 3314, Id. note note *, at Art. 6.
54. General Assembly Res. 3314, A number of Arab states have insisted throughout the negotiations that the crime of aggression can occur not only against a state, but also by “depriving other peoples of their rights to self-determination, freedom and independence.” note *, at Art. 8.
55. General Assembly Res. 3314 note 69.
56. Prof. Otto Triffterer has suggested to me that Arts. 9 and 10 of the Rome Statute could be combined as a new Art. 10, thus freeing up Art. 9 for the crime of aggression. Art. 10 is the only article in the Statute without a heading, and there is minimal structural disruption entailed. Alternatively, especially if the changes required to the existing Statute to accommodate aggression become too complicated, the amendment could become its own Protocol. This may be the most tidy way to do it in any event, given that not all parties to the Statute will want to agree to the provisions on aggression. The latter scenario raises another unresolved problem. Art. 5(2) of the Rome Statute speaks of a “provision” on aggression being “adopted in accordance with articles 121 and 123.” Does this mean that the provision is to be treated like any other amendment to the Statute? The difficulty is that Art. 121(4) says that except as provided in para. 5, an amendment shall enter into force for all state parties one year after instruments of ratification or acceptance have been deposited with the Secretary-General of the United Nations by seven-eighths of them. On the other hand, Art. 121(5) says that “[a]ny amendment to articles 5, 6, 7 and 8 of this Statute shall enter into force for those States Parties which have accepted the amendment one year after the deposit of their instruments of ratification or acceptance.” This is a dramatic difference and the paragraph adds: “In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding the crime covered by the amendment when committed by that State Party's nationals or on its territory.” Art. 5 does not say that the aggression provision is an amendment. Nor does it describe it as an “amendment to articles 5, 6, 7 and 8.” On the contrary, it treats it as an “addition” made to the treaty in accordance with Arts. 121 and 123. Two starkly different views thus present themselves. On the one, once seven-eighths of the then parties accept it, the aggression provision is binding on all existing parties and future parties have no choice but to take the Statute as amended. On the other, existing and future parties for all time have a choice on whether to take or leave the provision and if they reject it, it would not apply to events on their territory or involving their nationals.
57. Prof. Otto Triffterer has suggested to me that Arts. note 16.
58. The Samoan draft Elements of aggression follow the example of The Elements and refer only to what common lawyers would call the prosecution's “prima facie case,” the positive elements that must be proven by the prosecution before there is a “case to answer.” See statement in general introduction to The Elements, Prof. Otto Triffterer has suggested to me that Arts. note note 12, at 5, that “Grounds for excluding criminal responsibility or the absence thereof are generally not specified in the elements of crimes listed under each crime.”
59. Nullem crimen sine lege (Art. 22); nulla poena sine lege (Art. 23); non-retroactivity ratione personae (Art. 24).
60. Exclusion of jurisdiction over persons under eighteen.
61. Irrelevance of official capacity.
62. Non-applicability of statute of limitations.
63. Rome Statute, Art. 20.
64. See Kittichaisaree, Rome Statute note 12, at 225. Para. 2 prohibits trial by another court for a crime referred to in Art. 5 for which that person has already been convicted or acquitted by the ICC. This needs no modification. Para. 3, however, has a general rule, with exceptions, that no one tried by another court may be tried subsequently by the ICC. It refers only to crimes within Arts. 6, 7 and 8. The latter paragraph should be extended to the crime of aggression.
65. Rome Statute, Art. 25 provides in para. 1 that the Court shall have jurisdiction over natural persons. Para. 2 provides that a person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with the Statute. Para. 4 reads: “No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.” Each of these is compatible with the proposed provision on aggression. Para. 3, subparas. (a) to (d), deal with variations on the principle that one can commit a crime either individually or jointly. Subpara. (e) makes it an offense to “directly and publicly incite others to commit genocide” and subpara. (f) deals with attempts. All of para. 3, in short, raises issues with respect to the proposed provision on aggression.
66. See Kittichaisaree, Rome Statute, Art. 25 provides in para. 1 that the Court shall have jurisdiction over natural persons. note 12, at 220.
67. Convention on the Prevention and Punishment of the Crime of Genocide, General Assembly Res. 260A (III), 3(1) UN GAOR, at 174, UN Doc. A/810 (1948), Art. III. See the excellent analysis in W. Schabas, Genocide in International Law 266-280 (2000).
68. Art. III of the Genocide Convention, Convention on the Prevention and Punishment of the Crime of Genocide note 92, also makes a conspiracy to commit genocide a criminal offense, apparently even if the substantive offense is not in fact committed. Conspiracy to commit genocide is not contained in the Rome Statute, although Art. 25(3)(d), in dealing with “common purpose” responsibility, uses a type of conspiracy variant to connect those who are part of the group with what the others do. This variant on complicity applies only where the genocide in fact occurs. It is not an “inchoate” (preparationtype) offense, as conspiracy can be in Anglo-American law. See Schabas Convention on the Prevention and Punishment of the Crime of Genocide note 92, at 259-266.
69. Numerous parties made reservations or interpretive statements concerning Art. 20 when they ratified the Convention.
70. Numerous parties made reservations or interpretive statements concerning Art. 20 when they ratified the Convention. notes 49-51.
71. In particular instances, both Art. 25 and Art. 28 may be used as alternative ways to charge the superior. On this and other complexities of developing international law, and a very revealing comparative law perspective, see M. Damaska, The Shadow Side of Command Responsibility, 49 Am. J. Comp. L. 455 (2001).
72. The drafting leaves something to be desired, although this was a function of the tortuous process rather than the incompetence of the drafters. See Clark, particular instances, both Art. 25 and Art. 28 may be used as alternative ways to charge the superior. note 12, at 332-334.
73. Art. 33(2) says that “For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.” See Kittichaisaree, The drafting leaves something to be desired, although this was a function of the tortuous process rather than the incompetence of the drafters. note 12, at 268.
74. Art. 33(2) says that “For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.” notes 55-57.
75. At both Nuremberg and Tokyo, the Tribunals accepted without much ado that the accused were entitled to raise such issues. The defense claims were denied on the merits. See Nuremberg discussion of the invasion of Norway, summarized in the Secretariat's Historical review, Art. 33(2) says that “For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.” notes note 6, at 22-23, and Tokyo discussion of the Japanese claim to be acting in self defense in attacking France, The Netherlands, Great Britain and the United States, id., at 99.
76. Three of the Permanent Five Members of the Security Council have in the past taken positions consistent with a role for the General Assembly or the International Court of Justice alongside that of the Council. There may be room for compromise here.