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ICC Statute and confirmed that Article 21(3) has even the norm-creating function.
In 2010 the PTCH I held, again without any further analysis, that it possesses an
inherent power to inform the UN Security Council on a lack of cooperation of
non-party States.
48
A more detailed characterization of inherent powers of the ICC
was presented by the TCH IV, which stated that ‘inherent powers or incidental
jurisdiction may only be invoked in a restrictive manner in the context of the ICC
[…] its proceedings are governed by an extensive legal framework of instruments in
which the States Parties have spelt out the powers of the Court to a great detail.’
49
In both decisions analyzed in this article (i.e. subpoena decision and termination
decision), the TCH V referred to the
implied
powers doctrine – as was already
described, this doctrine was later dismissed by the ACH with respect to subpoena.
Having the said conceptual confusion in mind, a brief review of the case-law reveals
that different ICC’s chambers used the notions inherent powers and implied powers
interchangeably, without stressing a possible difference between them. This approach
further blurs the boundaries between both theories.
Despite the half-hearted attitude of the ICC towards the doctrines, with obvious
preference on the part of the ICC to use a stronger legal basis in its argumentation,
future usage of these theories before the ICC cannot be completely ruled out. Here,
the obvious question concerning the limits of inherent/implied powers might be put
forward. The doctrine is consistent in the opinion that inherent/implied powers can
be invoked only if they are not expressly prohibited by any of the provisions of the
constitutive instrument; or to put it differently, if they are not incompatible with
explicit provisions (powers) which, in the case of a conflict, must prevail.
50
Next,
if applied before international criminal tribunals, inherent/implied powers must
safeguard the fundamental rights of the accused.
51
Going back to the termination decision, both these limitations were crossed here.
52
The majority ruling on vacation of charges with possible re-prosecution, if inferred
from implied powers, would be first and foremost contrary to Article 20(1) of the ICC
Statute, which incorporates a prohibition of double jeopardy into the legal framework
of the ICC. Next, according to Article 84 of the ICC Statute, the possibility of revision
exists only in the case of conviction. Where there is no conviction, any revision is
48
Harun and Kushyab
, ICC-02/05-01/07-57, PTCH I, 25 May 2010, p. 6.
49
Banda and Jamus
, ICC-02/05-03/09-410, TCH IV, 26 October 2012, § 78.
50
WHITE, Nigel.
The law of international organisations
. 2
nd
edition. Manchester: MUP, 2005, p. 88.
Blokker argues that ‘it would seem difficult to accept that by using implied powers international
organizations could bypass, or even act against, what is covered by explicit powers.’
Cf
. Blokker, N.:
supra
, p. 24.
51
Gaeta, P.:
supra
, p. 370.
Cf.
Klamberg, M.:
supra
, p. 79. Inherent or implied powers may be suitable
when the exercise of power does not infringe upon any human right.
52
As described in the previous text, the vacation of charges (mistrial) was primarily inferred from Article
64(2) of the Rome Statute; nevertheless Judge Eboe-Osuji referred also to the doctrine of implied
powers under international law.
Cf
. Termination decision, Reasons of Judge Eboe-Osuji, §§ 190-191.