Aisling O'Sullivan

Contact: a.osullivan5nuigalway.ie

Qualifications: LLB in Law and European Studies, University of Limerick, LLM in International Legal Studies, University of Durham, UK.

Aisling O'Sullivan is a doctoral fellow at the Irish Centre for Human Rights, acting as a research assistant on the IRCHSS-funded research project ' Ireland's participation in International Human Rights Law and Institutions'. Her PhD research focuses on Universal jurisdiction in International Criminal Law.

Complementarity in International Criminal Law: International and National practice

Enforcement deficiencies within International Criminal Law derive from the difficult relationship between Public International Law and International Criminal Law, which, at its core, is the necessary resolution of the unique structure of international legal order with the strict requirements of fairness and equality, common to idealised criminal justice systems. While Public International Law utilizes the principle of sovereign equality to maintain legal order in a decentralised legal system, International Criminal Law aims to comprehensively enforce its norms through adhering to the fundamental principles of fairness in proceedings and equality in application. While municipal systems are assisted by possession of a complete and compulsory jurisdiction over all subjects, International Criminal Law, in contrast, suffers from the lack of a comprehensive jurisdiction. Its substantive norms are created on an ad hoc basis, through State practice, resulting in a lack of precision and clarity for periods of time, or through conventional law, resulting in inequality in its application.

Given the inherent deficiencies, methods of enforcement for breach are varied; a Treaty-based International Criminal Court, Mixed and International Tribunals with limited jurisdiction, Truth Commissions/forms of Restorative Justice or National prosecutions proceeding under various principles of jurisdiction. In the latter case, where territorial or national States fail to prosecute, Universal jurisdiction for crimes under international law is posited as a means of facilitating prosecution, where the prosecuting State has custody of the accused or seeks extradition for trial for absentia. Recent events have focused attention on the need to establish a viable system for the exercise of Universal Jurisdiction. Of the various methods developed or proposed, Complementarity between national jurisdictions is an attractive experiment. Two European models of inter-State Complementarity have emerged under the Belgian Code of Criminal Procedure and the Spanish doctrine of Subsidiarity. By implementing legal concepts, developed in customary and conventional law, the two principal European models produce hybrid versions of Complementarity, combining the concept in the Rome Statute with elements of Universal jurisdiction in customary and conventional law. The commonality between the models is the adoption of Complementarity's method of resolving competing jurisdictions; namely the assessment of the alternative forums criminal prosecution according to certain legal criteria.

While the models adopt specific legal criteria, they both possess elements of the criteria under Article 17(2) of the Rome Statute; namely " inactivity " and " independence, impartiality and fairness ".

However, this proposed resolution of the ’ perils ' of Universal Jurisdiction equally poses serious complexities in practical terms. Without the comfort of a treaty-based regime, inter-State Complementarity poses complex challenges within the decentralised structure of the international order; namely the capacity for Complementarity at an inter-State level to operate within the constraints of consent, jurisdiction and immunity.

The project would examine both models to establish whether the components of inter-State Complementarity have a legal basis in general international law, whether the measures conflict with fundamental rules of Public International law to preclude practical application and view the developments as the use of experiment and practice to produce desired results; comparable to the evolution of International Human Rights law monitoring and enforcement mechanisms.

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