Originally published on the CGS blog on April 11, 2012.
The Libyan government has appealed an order by the International Criminal Court (ICC) to hand over Saif al-Islam Gadhafi, son of late Libyan dictator Muammar Gaddafi, for trial. Libya insists it can provide a fair trial for Gaddafi, who was indicted by the ICC.
The problem is, the United Nations already referred the situation in Libya to the ICC last spring. The Court then issued arrest warrants for Saif, his father, and Gaddafi’s former intelligence chief Abdullah al-Senoussi for crimes against humanity stemming from their involvement in the violent crackdown on civilians which took place in Libya for several months last year. Because the UN Security Council referred the situation in Libya to the ICC, the Court has jurisdiction over the case, even though Libya is not an ICC state party. Several months ago, ICC Prosecutor Luis Moreno-Ocampo had said Libya’s National Transitional Council (NTC) agreed to work with the ICC and hand over the indictees.
Now, however, the Libyan government is asserting its desire to try Saif Gaddafi in Libya, claiming it can provide a fair trial for him. But the fact remains that the ICC has jurisdiction in the case due to the Security Council referral, and until the Libyan government files an official challenge to this, judges say it remains obligated to hand Saif over to the Court. Moreover, it still appears unlikely that the Libyan legal infrastructure, decimated by years of Muammar Gaddafi’s rule, could successfully hold a fair trial for Saif. An ICC defense counsel also says Saif has been attacked while in Libyan custody, in addition to being misled and held in isolation.
Given all this, I hope the NTC will follow the Security Council mandate and hand over Saif as soon as possible to face justice in The Hague.
