[13] The Court
General Remarks
Article 1 contains the main features of the International Criminal Court, namely it declares that the Court is established, is a permanent institution, that it may exercise jurisdiction for the most serious crimes and is complementary to national jurisdictions. These feautures are more precisely regulated in other Articles of the Rome Statute as indicated below and Article 1 may thus appear redundant. It also appears superfluous to that state the Court shall be governed by the provisions of this Statute.

Author: Mark Klamberg

Updated: 30 June 2016

[14] An International Criminal Court ("the Court") is hereby established.
This sentence reflects that the Court is established by a treaty as opposed to the ad hoc tribunals, the later are creations of the UN Secruity Council.
   The word "hereby" relates to the defined point of time when the Court was established. It follows from Articles 11 and 126 that the Court was established and came in to operation when the treay entered into force on 1 July 2012.
   Article 1 uses the term "Court" which is not used consistenlty through the Rome Statute. In Article 34 the term "Court" refers to the institution as a whole, including the Presidency, the Chambers, the Office of the Prosecutor and the Registry. This also appears to be the understanding in Articles 2 and 16. However, in provisions such as 15(4), 17(1), 19(4) and 19(8) the term "Court" implies the Chambers, or judges.

Author: Mark Klamberg

Updated: 30 June 216

[15] It shall be a permanent institution...
The ICC is a permanent court as opposed to the temporary character of the military tribunals in Nurmerberg, Tokyo and the ad hoc tribunals for former Yugoslavia and Rwanda. Although there is no specific provision concerning the ceasation of the Rome Statute, the parties could consent to terminate the Statute in accordance with the relevant rules of the Vienna Convention on the Law of Treaties.

Author: Mark Klamberg

Updated: 30 June 2016

[16] power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute
The Court's power is limited by the jurisdiction conferred to it. This means that it only has jurisdiction over the crimes listed in Article 5.
   The wording "persons" implies that the Court only has jurisdictions over natural persons which is supported by Article 25(1).

Author: Mark Klamberg

Updated: 30 June 2016

[17] complementary to national criminal jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute.
The Court is complementarity to national criminal jurisdictions. The principle of complementarity is not defined in the present Article but addressed in paragraph 10 of the Preamble and in Articles 12-15 and 17-20.

Cross-reference: 
Paragraph 10 of the Preamble

Doctrine:

1.  William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford 2010, pp. 57-62.
2. Otto Triffterer, “Article 1: The Court”, in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court – Observers´ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 49-62.
3. Micaela Frulli, Jurisdiction ratione personae, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 532.
4. Luigi Condorelli/Santiago Villalpando, Referral and Deferral by the Security Council, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, p. 637.
5. John T. Holmes, Complementarity: National Courts versus the ICC, Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 667-668, 671-672.

Author: Mark Klamberg

Updated: 30 June 2016

[18] Relationship of the Court with the United Nations
The Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.
General Remarks 
As the Court is established by way of multilateral treaty it is an entirely separate institution vis-à-vis the United Nations. The International Criminal Court derives its power and authority from a treaty and not from the UN. As such the ICC is an independent international organisation. However, the Court is a part of an international system where the United Nations is at the centre. There is a need to coordinate the responsibility of the United Nations to maintain peace and security with the Court's judicual role. This requires a structural link between the two institutions.
   Article 2 deals with the overall relationship between the Court and the United Nations. More specific matters are dealt with in other provisions. The Security Council can give the Court jurisdiction and trigger proceedings pursuant to Article 13(b). Article 16 provides that the the Security Council may  suspend or defer proceedings. The International Court of Justice, the principal judicial organ of the United Nations, may have a role according to Article 119(2) in settling disputes between States Parties. Finally, Article 115(b) provides that the United Nations may provide funds to the Court, subject to the approval of the General Assembly, in particular in relation to the expenses incurred due to Article 13(b)-referrals by the Security Council.

Analysis
On 4 October 2004 the Negotiated Relationship Agreement between the International Criminal Court and the United Nations was adopted and entered into force. The agreement concerns, inter alia, reciprocal representation (Article 4), exchange of information (Article 5), reports to the UN (Article 6), proposal from the Court for items for consideration at the United Nations (Article 7), personal arrangements (Article 8), administrative cooperation (Article 9), services and facilities (Article 10), access to the United Nations Headquarters (Article 11), laissez-passer (Article 12) and financial matters (Article 13).

Cross-reference:
Articles 13(b), 16 and part 12

Doctrine:

1. Luigi Condorelli/Santiago Villalpando, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 219-234.
2. William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute, Oxford University Press, Oxford, 2010. pp. 57-62 
3. Antonio Marchesi, “Article 2: Relationship of the Court with the United Nations”, in Otto Triffterer, (Ed.), Commentary on the Rome Statute of the International Criminal Court – Observers´ Notes, Article by Article, Second Edition, C.H. Beck/Hart/Nomos, München/Oxford/Baden-Baden, 2008, pp. 49-62.

Author: Mark Klamberg

Updated: 30 June 2016

[19] Seat of the Court
1. The seat of the Court shall be established at The Hague in the Netherlands ("the host State").
Domestic laws and regulations of the host State do apply within ICC premises unless the parties have contracted otherwise. However, it cannot be enforced by that State without the ICC waiving its relevant immunity in that case.

Author: Mark Klamberg

Updated: 30 June 2016

[20] 2. The Court shall enter into a headquarters agreement with the host State, to be approved by the Assembly of States Parties and thereafter concluded by the President of the Court on its behalf.
In contrast to the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) the ICC is not an organ of the United Nations. Therefore the General Convention of Privileges and Immunities of the UN (1945) does not apply and thus a similar general agreement is necessary. Other Articles relevant to the Host State Agreement, including Articles 48 and 103. On 19 November 2002 the Registrar of the Court and the Ministry of Foreign Affairs of the Kingdom of the Netherlands exchanged Notes embodying an interim agreement between the ICC and the Kingdom of the Netherlands concerning the headquarters of the Court. The arrangements will continue to apply until the entry into force of the Headquarters Agreement.

Cross-reference:
Articles 48 and 103.

Author: Mark Klamberg

Updated: 30 June 2016

[21] 3. The Court may sit elsewhere, whenever it considers it desirable, as provided in this Statute.
It is possible for the Court to sit outside The Hague. According to Article 38(3)(a)  it shall be for the Presidency to take decision to arrange for sitting outside the Court.

Cross-reference:
Article 38(3)(a)

Doctrine:
1. Adrian Bos, in Antonio Cassese et al. (Eds.), The Rome Statute of the International Criminal Court: A Commentary, Oxford University Press, Oxford, 2002, pp. 19-22.
2. Gerhard A.M. Strijards, in Otto Triffterer (Ed.), Commentary on the Rome Statute of the International Criminal Court, Nomos Verlagsgesellschaft, Baden-Baden, 1999, pp. 77-88. 

Author: Mark Klamberg

Updated: 30 June 2016

[22] Legal status and powers of the Court
General Remarks
International institutional law does not contain a definite set of criteria by which to identify an international organization. Features that are commonly expected to be present include: the creation through an international agreement or other international instrument, having at least one organ with a will of its own, and being established under international law. Sometimes also the possession of international legal personality is mentioned as separate criteria [Schermers and Blokker 2003, pp. 21-37, International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, in Report of the International Law Commission on the Work of its Fifty-third Session, Supplement No. 10 (A/56/10), Supplement No. 10 (A/56/10), Article 2], as well as the capacity to conclude treaties [Vienna Convention on the Law of Treaties between States and International  Organizations or between International Organizations, 21 March 1986, Not yet in force, Article 6].
   Article 4 deals with the nature of the ICC as an international actor. It addresses two of the most fundamental (and intertwined) features that assert an institution as an international legal subject and define the extent of the activities of that subject: the possession of legal personality and the exercise of powers.
   Ever since the Reparation for Injuries case before the International Court of Justice, it has been unquestionable that international organizations can also be international legal subjects. [Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, 1949 ICJ Reports 174]Express assertation of legal personality is not a  prerequisite for the acquisition of legal personality under international law. Nor can a set of prerequisites be identified by which to acquire international legal personality. Instead a more pragmatic approach has been applied. As the ICJ concluded in respect of the United Nations, when an organization “… was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of … international legal personality”, the legal personality of the organization is confirmed. [Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, 1949 ICJ Reports 174, p. 179, and Klabbers 2009, p. 50]
   As to the question of legal powers, Article 4 defines both the functional and territorial scope of the powers of the ICC. The totality of the powers of an international organization is a sum of the explicitly granted powers and those non-express powers that are conferred upon it: “The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers … known as ‘implied’ powers” [Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, 8 July 1996, ICJ Reports 1996, para. 25].
   In respect of judicial bodies the non-express powers are commonly characterized as inherent powers (or inherent jurisdiction). Whereas implied powers are derived from a perceived necessity for the performance of functions or attainment of objectives, the bulk of inherent powers of institutions are of a customary nature. As soon as an institution comes into existence, the logic is, it will enjoy all of these powers. [Seyersted 2008, p. 35] However, while a distinction between implied and inherent powers can be upheld in principle, a separation of the two categories of non-express powers may be difficult to uphold in practice. For example in respect of international arbitral tribunals it has been noted that even if a distinction can be made between powers implied by the parties´ agreement and the rules and laws governing the arbitration, discretionary powers over procedure, and inherent powers necessary to preserve jurisdiction, maintain the integrity of proceedings, and render an enforceable award, these categories potentially overlap. [77th Conference of the International Law Association, 7-11 August 2016 (Johannesburg, South Africa), Committee on International Commercial Arbitration, Annex to Resolution no. 4/2016 ("Inherent and Implied Powers of International Arbitral Tribunals"), available at http://www.ila-hq.org/en/committees/index.cfm/cid/1034)

Author:
Viljam Engström

Updated: 
14 August 2017  

[23] The Court shall have international legal personality.
The design and functions of the ICC confirm its status as an international legal person and as an international organization. The ICC is established through an international treaty [Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, entered into force July 1, 2002.], it has separate organs the will of which is independent from individual state parties [Article 34 ICC and Article 112 ICC], and it has powers to conclude international agreements. The Statute confers upon the Court the powers to conclude an agreement with the UN [Article 2 ICC, Negotiated Relationship Agreement between the International Criminal Court and the United Nations, 20 August 2004, A/58/874], a headquarters agreement [Article 3 ICC, Headquarters Agreement between the International Criminal Court and the Host State, 7 June 2007, entered into force 1 March 2008, ICC‐BD/04‐01‐08,], an agreement on privileges and immunities [Article 48 ICC, Agreement on the Privileges and Immunities of the International Criminal Court, 9 September 2002, entered into force 22 July 2004, ICC-ASP/1/3], and ad hoc agreements with non-party states [Article 87(5)(a) ICC]. The powers of the Court to conclude agreements are not even limited to these instances but extended to the conclusion of a variety of agreements with state parties, non-party states, and international institutions [The ICC has entered into agreements e.g. with the EU, the Red Cross, and the Organisation internationale de la Francophonie. Agreements on enforcement of sentences have been concluded with several state parties. See the Official Journal of the Court]. 
   The express inclusion in the constituent instrument of a provision granting international legal personality is a rarity among international organizations. It could also be thought of as superfluous given that the performance of functions and exercise of powers confirms the existence of an independent will and a capacity to act at the international level. The express confirmation of the international legal personality of the Court is however an expression of the consensus that was reached during the drafting process on establishing the ICC as an independent international organization rather than as a UN organ [Schabas 2010, p. 95]. The Agreement on the Privileges and Immunities of the International Criminal Court further confirms both the international and national legal personality of the ICC. [Agreement on the Privileges and Immunities of the International Criminal Court, ICC-ASP/1/3, Article 2] 
   Legal personality indicates a capacity of possessing international rights and duties, but no specific powers (nor the scope of powers) can be derived from the possession of personality as such. This is the essential difference between states and organizations as legal subjects [Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, 1949 ICJ Reports 174, p. 179] The differences between states and organizations as legal subjects also affects the scope of their duties. In this respect Trial Chamber II has noted that the ICC is not able to implement the non-refoulement principle – a customary principle binding the Court due to its international legal personality - within its ordinary meaning [Prosecutor v. Katanga and Ngudjolo, Decision on an Amicus Curiae application and on the "Requête tendant à obtenir présentations des témoins DRC-D02-P-0350, DRC-D02-P-0236, DRC-D02-P-0228 aux autorités néeriandaises aux fins d'asile" (Articles 68 and 93(7) of the Statute), ICC-01/04-01/07-3003, para. 64] 
   As no particular legal powers are bestowed upon an organization merely due to the possession of legal personality, the practical importance of that status rather follows from the obligation that is created for states to recognize the ICC as an autonomous actor. Member states hereby have a duty for example to recognize the binding effect of treaties concluded by the ICC, as well as to grant immunities to the Court [Martines 2002, p. 208-210].

Author: Viljam Engström

Updated: 30 June 2016

[24] It shall also have such legal capacity…
In the absence of personality, the ICC could not make contracts for goods and services, hire employees, or perform its operational activities. While some of these activities require international legal personality, others are performed under domestic law. [Gallant 2003, p. 556] The inclusion of a clause in constituent instruments of organizations that explicitly bestows national legal personality is far more common than the inclusion of such a clause concerning international legal personality. Also preparatory work clearly indicates that the purpose of the passage is to bestow national legal personality. [Preparatory Committee Draft Statute, p. 10, Schabas 2010, p. 96-97] The Headquarters Agreement further specifies the contents of the national legal personality by adding that the Court shall: “… in particular, have the capacity to contract, to acquire and to dispose of immovable and movable property and to participate in legal proceedings” [Headquarters Agreement between the International Criminal Court and the Host State, ICC‐BD/04‐01‐08, Article 3]. Both expressions are standard phrases to be found in constituent instruments and headquarters agreements, confirming the status of an organization in the domestic legal systems of state parties.
   Whereas the Headquarters agreement is key to the proper functioning of the ICC in the host state (the Netherlands), an obligation to recognize acts of the ICC can also arise within the national legal systems of other state parties. The ICC may for example sit elsewhere than in the host state [Article 3(3)], the Court shall enjoy necessary privileges and immunities in the territory of each State Party [Article 48 ICC], the Prosecutor may in some cases act directly within the territory of a state party without having secured cooperation of that party [Article 54(2) and 57(3) ICC], and the Court may decide on a place of trial other than the seat of the Court [Article 62 ICC]. The fact that sentences of imprisonment can be served in a state other than the host state may also imply the national legal personality of the ICC [Article 103(4) ICC, also see commentary by Strijards 2008, p. 1656]. State parties have a duty to cooperate fully with the Court, to ensure that there are certain procedures available under national law, and to comply with requests of various kinds [Part 9, ICC Statute]. This cooperation does not however require the exercise of the powers of the ICC on the territory of state parties [Rückert 2008, p. 125].

Author: Viljam Engström

Updated: 30 June 2016

[25] … as may be necessary for the exercise of its functions and the fulfilment of its purposes.
The obligation which the Statute lays upon state parties to recognize the Court as a legal person in domestic law, does not define the content of the legal capacity of the Court. In other words, the capacity for performing certain acts on the domestic level does not entail an automatic competence for the ICC to perform that act. The necessity assessment serves first of all to ensure that the ICC will enjoy such capacity that it needs for performing its functions and fulfilling its purposes. This means that although special mention is made in the Headquarters Agreement and the Agreement on Privileges and Immunities of the capacity to contract, to acquire and to dispose of immovable and movable property, and to participate in legal proceedings, the list is not exhaustive. On the other hand, the necessity requirement also restricts the capacity of the ICC by requiring a link to the functions and purposes as defined in the Statute [Schermers and Blokker 2003, p. 1011, note 111, Rückert 2008, p. 124]. The extent of the capacity of the ICC in domestic legal systems is also limited to the exercise of powers that are ‘provided in the Statute’ [see note 11 on sub-paragraph 2] [Schermers and Blokker 2003, p. 1016].

Author: Viljam Engström

Updated: 30 June 2016

[26] The Court may exercise its functions and powers, as provided in this Statute…
The express powers of an organization are unquestionably ‘provided in the Statute’. However, also the implied powers of an organization can be characterized as derived from the Statute. Although international case law displays some variation in the semantic construction of implied powers, the link to the statute basically derives from that an implied power can only be exercised when that power can be claimed to be necessary for the attainment of one of the objectives of the organization. The extent of the implied powers of an organization can range from powers that are necessary for the exercise of explicit powers (by which to attain the objectives of the organization), to completely new powers that supplement the means by which to attain the goals of the organization. Which implied powers an organization enjoys, depends on the “needs of the community” [Reparation for Injuries, ICJ Reports 1949, p. 178, for a discussion see Engström 2012, Chapter 2]. 
   There are several ‘communities’ that interpret the ICC Statute. The first ‘community’ to interpret the extent of ICC powers was the Rome Conference. Authors seem to agree that the reference to ‘as provided in this Statute’ was inserted in order to guard against expansion of the competence of the ICC through the use of implied powers [Rückert 2008, p. 126, Martines 2002, p. 215, Schabas 2010, p. 97]. Whether the inclusion of a reference to the Statute can prevent the use of implied powers if agreement on the necessity of such powers is attained is however uncertain. If a claim is made that the reference to the Statute does not exclude the use of more limited implied powers (necessary for the exercise of the expressly provided powers) [Rückert 2008, p. 126], this inevitably undermines any categorical denial of implied powers. Such a construction of the powers of the ICC turns express powers into purposes, the realization of which may allow for a range of different implied powers. Further, even if the reference to the statute is read as an express exclusion of any implied powers, that exclusion can lose its limiting effect if agreement on the need for widening the competence of the ICC is later achieved [See White 2005, p. 73-74 discussing the OAS Charter. As a matter of treaty law subsequent agreement and practice precedes the merely supplementary role of preparatory work in the interpretation and application of a treaty. Articles 31 and 32, Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, entered into force 27 January 1980].
    When dealing with judicial bodies, non-express powers are far more commonly presented as ‘inherent’ rather than ‘implied’. The idea of inherent powers has its origin in common law systems where it has been invoked by courts for a range of different purposes [See Brown 2005, pp. 205-206]. Recourse to inherent powers can also be found in the case law of several international judicial bodies. The ICJ has noted that it: “… possesses an inherent jurisdiction enabling it to take such action as may be required, on the one hand to ensure that the exercise of its jurisdiction over the merits … shall not be frustrated, and on the other, to provide for the orderly settlement of all matters in dispute, to ensure the observance of the ‘inherent limitations on the exercise of the judicial function’ of the Court, and to ‘maintain its judicial character’. Such inherent jurisdiction, on the basis of which the Court is fully empowered to make whatever findings may be necessary for the purposes just indicated, derives from the mere existence of the Court as a judicial organ established by the consent of states, and is conferred upon it in order that its basic judicial function may be safeguarded” [Nuclear Tests Case, ICJ Reports 1974, para. 23]. As to the relationship between the implied and inherent powers doctrines, the Appeals Chamber of the ICTY has held that the inherent powers notion would be preferable with respect to those non-express powers which are judicial in nature, whereas the implied powers doctrine seems better suitable for describing the extension of the competence of political organizations [Prosecutor v Tihomir Blaškić, (Case No. IT-95-14-AR), ICTY Appeals Chamber, Judgment on the Request of The Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, para. 25, note 27]. 
    A suggestion that Article 4 would exclude the use of implied powers but not reliance on inherent powers raises the question of the nature of and relationship between the implied and inherent powers doctrines. On the face of it, the commonality of some powers of international organizations (to adopt a budget, to conclude treaties, or to bring claims), make them seem inherent in the possession of legal personality [Rama-Montaldo 1970]. As international courts and tribunals display considerably more functional and procedural similarities than international political organizations, it seems only natural that an array of powers can be assumed to follow from their mere existence, such as: the power to take interim measures, to request stays of proceedings or to stay its own proceedings, to order discontinuance of a wrongful act or omission, to appraise the credibility of a witness, to pronounce upon instances of contempt of the court, to order compensation, to consider matters or issue orders proprio motu, and to rectify material errors in a judgment [For a summary and references, see the Appeals Chamber of the Special Tribunal for Lebanon, El Sayed, (CH/AC/20I0/02), Appeals Chamber, Decision on Appeal of Pre-Trial Judge's Order regarding Jurisdiction and Standing, 10 November 2010, para. 46. Also see Brown 2005].
    The Regulations of the Court recognizes the existence of inherent powers [Regulations of the Court, ICC-BD/01-01-04, paras 28(3), and 29(2)]. As a point of departure inherent powers can be exercised by all organs of the ICC in carrying out their duties. However, the practice of other tribunals of exercising inherent powers is not automatically indicative of the existence of such inherent powers of the ICC. Somewhat at odds with the idea that inherent powers derive from the mere existence of a judicial body, the exercise and exact scope of any inherent powers must always be determined in relation to the functions of the individual court [Brown 2005, p. 229, Amerasinghe 2003, p. 99]. This also renders the eventual difference between the implied powers and inherent powers doctrines unclear.
   An element that may affect the use of inherent powers in the ICC when compared to the ICTY and ICTR is the more civil law oriented approach to criminal law of the ICC, which brings with it a stricter requirement of codification [Sluiter 2010, at 588]. Nevertheless, the case-law of the Court is rich with examples on invoking inherent and implied powers. The ICC Pre-Trial Chamber II has noted that the Chamber has an inherent power to make “necessary alterations to documents issued by the Chamber” [Prosecutor v. Kony et al., Pre-Trial Chamber II, Decision on the Prosecutor´s Urgent Application Dated 26 September 2005, ICC-02/04-01/05, 27 September 2005]. The Appeals Chamber has indicated that the Chamber may exercise an inherent power to stay proceedings, if (i) the “essential preconditions of a fair trial are missing”, and (ii) there is “no sufficient indication that this will be resolved during the trial process” [Prosecutor v. Lubanga, Appeals Chamber, Judgment on the appeal of the Prosecutor against the decision of Trial Chamber I entitled "Decision on the consequences of non-disclosure of exculpatory materials covered by Article 54(3)(e) agreements and the application to stay the prosecution of the accused, together with certain other issues raised at the Status Conference on 10 June 2008", ICC-01/04-01/06-1486, 21 October 2008, para. 76, and Prosecutor v. Kenyatta, Trial Chamber V, Decision on defence application pursuant to Article 64(4) and related requests, ICC-01/09-02/11-728, 26 April 2013, para. 74]. Trial Chamber I has noted, by reference to the practice of the ICTY and ICTR, that a Chamber “can depart from earlier decisions that would usually be binding if they are manifestly unsound and their consequences are manifestly unsatisfactory” [Prosecutor v. Lubanga, Trail Chamber I, Decision on the defence request to reconsider the "Order on numbering of evidence" of 12 May 2010, ICC-01/04-01/06, 30 March 2011, para. 18]. Pre-Trial Chamber I has held, referring to the practice of the ICTY, that it possesses an inherent power to inform the UN Security Council on lack of cooperation of non-party states. [Prosecutor v. Harun et al., Pre-Trail Chamber I, Decision informing the United Nations Security Council about the lack of cooperation by the republic of the Sudan, ICC-02/05-01/07, 25 May 2010, p. 6]. However, in respect of state parties the ICC has relied on the express mechanism for informing the Security Council provided for by Article 87(7) ICC [Prosecutor v Omar Hassan Ahmad Al Bashir, Pre-Trail Chamber I, Decision pursuant to Article 87(7) of the Rome Statute on the refusal of the Republic of Chad to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, 13 December 2011]. Trial Chambers have also been found to have an implied power to submit 'no case to answer' motions, and to declare a mistrial [Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber V(A), Public redacted version of: Decision on Defence Applications for Judgments of Acquittal, ICC-01/09-01/11, 5 April 2016, paras 191-192]. As a more general characterization of the inherent powers of the ICC, Trial Chamber IV has stated that any inherent powers or incidental jurisdiction can only be invoked in a restrictive manner. The reason for this, especially in the case of procedural matters such as stay of proceedings, is that the exercise of non-express powers may contradict the object and purpose of the Court by frustrating the administration of justice [ Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus, Trial Chamber IV, Decision on the defence request for a temporary stay of proceedings, ICC-02/05-03/09, 26 October 2012, para. 78]. This echoes the concern of Judge Blattmann that the exercise of inherent powers imports a discretionary element to the decision-making, potentially undermining procedural certainty (especially if there is an alternative mechanism available in the Statute) [Prosecutor v. Lubanga,Separate Opinion of Judge René Blattmann to the Decision on the defence request to reconsider the "Order on numbering of evidence" of 12 May 2010, ICC-01/04-01/06, 30 March 2011, paras 1 and 7]. In this respect, whereas the Trial Chamber had found that it enjoys an implied power to compel the appearance of witnesses [Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Trial Chamber V (A), Decision on Prosecutor´s Application for Witness Summonses and resulting Request for State Party Cooperation, ICC-01/09-01/11, 17 April 2014, para. 87.], the Appeals Chamber deemed the exercise of an implied power to compel witnesses "incorrect in circumstances where the Court's legal framework provides for a conclusive legal basis". Implied powers should in this view only be relied upon when there is a lacuna in the Statute or Rules of Procedure and Evidence. [Prosecutor v William Samoei Ruto and Joshua Arap Sang, The Appeals Chamber, Judgment on the appeals of William Samoei Ruto and Mr Joshua Arap Sang against the decision of Trial Chamber V (A) of 17 April 2014 entitled "Decision on Prosecutor´s Application for Witness Summonses and Resulting Request for State Party Cooperation", ICC-01/09-01/11 OA 7 OA 8, 9 October 2014, para. 105.   

Author:
Viljam Engström

Updated:
15 August 2017