Annotation

The article offers a historical and legal inquiry into the emergence and subsequent development of what may be termed the subsidiary jurisdiction of international criminal courts and tribunals. Proceeding from a division of the subject-matter into a ‘theoretical’ period (from the latter half of the nineteenth century to 1945) and a ‘practical’ period (from 1945 to the first quarter of the twenty-first century), it traces the evolution of doctrinal conceptions of an international criminal court, the gradual crystallisation of disciplinary and quasi subsidiary powers in the practice of the international military tribunals, the articulation of the doctrine of inherent powers by the ad hoc tribunals, and, finally, the codification of crimes against the administration of justice in the Rome Statute of the International Criminal Court. It is shown that subsidiary jurisdiction has travelled a long road: from an implicit, almost taken for granted attribute of judicial authority to a treaty based institution with a clearly delineated catalogue of offences. The analysis supports the conclusion that this evolution is broadly progressive in character, even as it leaves unresolved a number of enduring tensions between the imperative of protecting international criminal justice and the need to respect the outer limits of penal repression.