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However, there is much uncertainty about the meaning and legal source of these
powers. Starting from terminology, inherent and implied powers are sometimes used
as equivalent notions, while sometimes they have been given different meanings.36
It is argued that the notion of implied powers may be used only with regard to
unexpressed powers of international organizations, while inherent powers attach
to international judicial bodies.37 Nevertheless, this approach overlooks the fact
that certain international tribunals (e.g. the ICC) have the status of international
organizations disposing with an independent and autonomous legal personality. This
means that the doctrine of implied powers is fully applicable even towards this type
of international criminal tribunal.
As contended by F. Martines, inherent powers refer to powers enabling an entity
to manifest its status as a legal person and powers this entity exercises qua judicial
body; they stem from the very existence of the entity.38 On the other side, implied
powers are usually described as powers that are necessary for the achievement of the
purposes of the organization/entity (broad approach), or for the effective exercise
of the competences expressly granted to it (narrow approach).39 Without further
analysis it is enough to say here that ‘the distinction between […] inherent powers
[…], on one side, and implicit powers, on the other side, has become blurred and
the separation between these concepts remains unsettled.’40 According to N. Blokker,
the approach distinguishing inherent and implicit powers ‘has not found much
support, perhaps because it could not convincingly be demonstrated how the notion
of inherent powers could draw a clearer, more objective line than that of implied
powers between what is inherent – or implied – and what is not.’41
Disputes nevertheless do not end up here. If the argument that there is a certain
distinction between implied and inherent powers is finally accepted, there is no
consensus on how far these doctrines are applicable with respect to the ICC. The
point of departure here is Article 4 of the ICC Statute.42 Some scholars argue that
36 GAETA, Paola. Inherent Powers of International Courts and Tribunals. In: Men’s Inhumanity to Man:
Essays on International Law on Honour of Antonio Cassese. The Hague: Kluwer Law International, 2003,
p. 362.
37 Ibid. This distinction is supported by the case-law of the ICTY, cf . Blaškić, IT-95-14, ACH, 29 October
1997, § 25, footnote 27.
38 MARTINES, Francesca. Legal Status and Powers of the Court. In: CASSESE, Antonio et al. (eds.) The
Rome Statute of the International Criminal Court. Vol. 1. Oxford: OUP, pp. 215-218.
39 RÜCKERT, Wiebke. Legal status and powers of the court. In: TRIFTERRER, Otto. Commentary
on the Rome Statute of the International Criminal Court. Observers’ Notes, Article by Article. 2nd edition.
München: Beck/Hart, 2008, p. 126.
40 PIERINI, Jean Paul. The inflated invocation of inherent jurisdiction and powers by international and
internationalized criminal courts and tribunals between gap filling and erosion of core values. Online
Working Paper. Università di Catania, 2015, no. 75, p. 5. Available online at:
sites/default/files/Quaderno%20europeo_75_2015.pdf [06/28/2016].
41 Blokker, N.: supra, p. 19.
42 Article 4 provides: Legal status and powers of the Court 1. The Court shall have international legal