On Thursday, the Appeals Chamber of the ICC confirmed the Pre-Trial Chamber's decision that Abdullah al-Senussi should stand trial in Libya. An interesting part of the judgment addresses the issue of 'positive complementarity' (see some excellent contributions to the debate here, here and here); that is, whether an overly-harsh trial not according the full panoply of rights to the accused could fall afoul of Article 17's 'unwilling' or 'unable' criteria:
Taking into account the text, context and object and purpose of the provision, this determination is not one that involves an assessment of whether the due process rights of a suspect have been breached per se. In particular, the concept of proceedings "being conducted in a manner which, in the circumstances, is inconsistent with an intent to bring the person concerned to justice" should generally be understood as referring to proceedings which will lead to a suspect evading justice, in the sense of not appropriately being tried genuinely to establish his or her criminal responsibility, in the equivalent of sham proceedings that are concerned with that person's protection.
However, there may be circumstances, depending on the facts of the individual case, whereby violations of the rights of the suspect are so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the suspect so that they should be deemed, in those circumstances, to be "inconsistent with an intent to bring the person to justice".
The second paragraph seems to suggest that the door is not fully closed to a more expansive interpretation of the complementarity clause, to include unfairness to the accused. Conversely, however, the Appeals Chamber refused to accept additional evidence from the defence, which purported to show that the authorities had mistreated the accused in custody for the purposes of obtaining a confession from him.