365 / 536
351
CYIL 7 ȍ2016Ȏ
APPLICABLE LAW, INTERPRETATION, INHERENT AND IMPLIED POWERS…
the provision ‘as provided in this Statute’ contained in Article 4(2) excludes the
applicability of the implied powers doctrine, but cannot apply to powers defined as
inherent.
43
The latter concept would be still workable. Another influential commentary
on the Rome Statute provides that ‘restating the obvious, the provision [of Article 4(2)
of the Statute] is directed against an expansion of the Court’s powers beyond the
Statute’
44
and as such it is compatible with a narrow concept of implied powers.
The same opinion is held by S. Ford, who admits that there is a tension between
Article 4(1) and Article 4(2) of the Rome Statute which can be harmonized exactly
by reference to acceptance of a narrow version of the implied powers doctrine.
45
It seems that the mythical Babylonian confusion of tongues was an easier problem
to fix than to puzzle out what is the position of inherent/implied powers before the
ICC; but with a certain simplification a preliminary conclusion is drawn that the
ICC can exercise even unexpressed powers, irrespective of whether they are labeled
as inherent or implied.
Existing practice of the ICC nevertheless reveals considerable self-restraint in the
usage of these doctrines. The first encounter with inherent/implied powers came in
2005 when the PTCH II briefly noted that it has an
inherent
power to make necessary
alterations to documents issued by it.
46
In the
Lubanga
jurisdiction judgment the
ACH assessed whether the Court had an inherent power to stop the proceedings.
The ACH did not examine the implications of Article 4 of the Statute and merely
stated that this power is not generally recognized as an indispensable power of a court
of law, an inseverable attribute of the judicial power. Instead, it inferred the power
to stay proceedings from Article 21(3), according to which the application and
interpretation of law used before the ICC must be consistent with internationally
recognized human rights.
47
To put it differently, the ACH relied on a much stronger
legal basis for employing the procedural measure not expressly envisaged in the
personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and
the fulfilment of its purposes. 2. The Court may exercise its functions and powers, as provided in this
Statute, on the territory of any State Party and, by special agreement, on the territory of any other State.
43
Martines, F.:
supra
, p. 216. The same position is held by P. Gaeta, who nevertheless denies any
applicability of implied powers by international judicial bodies.
Cf
. Gaeta, P.: supra, p. 372.
44
Wiebke, R.:
supra
, p. 126.
45
FORD, Stuart. The International Criminal Court and Proximity to the Scene of the Crime: Does the
Rome Statute Permit All of the ICC’s Trials to Take Place at Local or Regional Chambers?
The John
Marshall Law Review
. 2010, vol. 43, issue 3, pp. 730-731.
46
Situation in Uganda
, ICC-02/04-01/05-27, PTCH II, 27 September 2005, p. 3.
47
Lubanga
, ICC-01/04-01/06-772, ACH, 14 December 2006, §§ 35-36. The ACH held ‘that the
doctrine of abuse of process had
ab initio
a human rights dimension in that the causes for which the
power of the Court to stay or discontinue proceedings were largely associated with breaches of the
rights of the litigant, the accused in the criminal process, such as delay, illegal or deceitful conduct on
the part of the prosecution and violations of the rights of the accused in the process of bringing him/
her to justice.’
Cf
. KLAMBERG, Mark.
Evidence in International Criminal Trials
. Leiden: Martinus
Nijhoff, 2013, p. 80.