Wednesday, 26 May 2010

'Inherent' Powers of the International Criminal Court

Pre-Trial Chamber I has granted the motion of the Prosecutor requesting that it inform the Security Council that Sudan has failed to cooperate with the Court. The decision contains a curious reference to 'inherent powers' of the Court. According to the Chamber, 'the Court has the inherent power to inform the Security Council of such a failure' (p. 6). This is accompanied with a footnote citing the Blaskic subpoena decision of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia of October 1997. That ruling states that ‘the International Tribunal must possess the power to make all those judicial determinations that are necessary for the exercise of its primary jurisdiction. This inherent power inures to the benefit of the International Tribunal in order that its basic judicial function may be fully discharged and its judicial role safeguarded.’
The Pre-Trial Chamber's brief allusion to 'inherent powers' may seem ephemeral and anodine, but when coupled with the reference to Blaskic it suggests the emergence of a rather bold doctrine. An important difference between the ad hoc Tribunal for the former Yugoslavia and the International Criminal Court is the insistence by States, with respect to the Court, upon a detailed and comprehensive codification of the powers and procedures available to the Court.
Blaskic is important here, because the idea that judges would have inherent powers did not sit well with those who drafted the Rome Statute. They specifically reacted to the Blaskic decision with one of the most awkward provisions in the Rome Statute, article 72, which concerns national security information.
An 'inherent power' to inform the Security Council is not a big deal, of course. It does not seem to have any particular legal consequences. Presumably the members of the Security Council already know that Sudan is not being cooperative. They hardly need a decision from the Pre-Trial Chamber to tell them this. But the mere suggestion that the judges have 'inherent powers' - especially given that the idea is rooted in the controversial Blaskic decision - is a Pandora's box.
Thanks to Maria Veraki.


Dov Jacobs said...

I was going to comment on that as well. It's all the more surprising, given that the Court has the explicit power to inform the Security Council under the Statute. Indeed, Article 87(7) reads as follows:
"Where a State Party fails to comply with a request to cooperate by the Court contrary to the
provisions of this Statute, thereby preventing the Court from exercising its functions and powers
under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly
of States Parties or, where the Security Council referred the matter to the Court, to the Security Council."
Why did they need to go dig out "inherent powers"???

Dov Jacobs said...

I've published my own comment on the decision, on the reason why this has become a problem, namely, the poor drafting of the Statute.