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Doubts remain over whether Libya's national authorities will give Muammar Gaddafi's son a fair trial. He is wanted by the International Criminal Court. 

Saif al-Islam Gaddafi, the son of the former Libyan leader, has been held under guard by a militia in Zintan in western Libya for close to two years, as the new Libyan authorities and the International Criminal Court (ICC) argue over who will try him. After failing in a bid to prosecute the ICC’s allegations against Gaddafi, it’s time for Libya to follow its legal obligations and turn him over to the ICC.

The ICC has issued arrest warrants for both Gaddafi’s son and Abdullah Sanussi, Gaddafi's former intelligence chief. The stakes surrounding a decision about which court conducts any trial are high, but if conducted fairly, these proceedings offer the possibility to determine guilt or innocence over allegations of the gravest of international crimes. Summary proceedings - without proper investigations or due consideration of the facts - would squander a unique opportunity to demonstrate and strengthen its rule of law.

How the ICC became involved in Libya

On 26 February 2011, as government violence against peaceful protestors in several Libyan cities escalated, the United Nations Security Council, by a vote of 15-0, adopted Resolution 1970 to refer Libya’s deteriorating situation to the ICC. Resolution 1970 requires the Libyan authorities to cooperate fully with the court, even though Libya is not a member. That obligation includes abiding by the court’s decisions. Libya itself has promised to cooperate with the ICC and has openly acknowledged that it is bound by Resolution 1970.

Regrettably, the Security Council members that initially championed Resolution 1970 have been largely silent on Libya’s obligation to cooperate with the court. For that body’s resolution to carry any weight, Security Council members should send a strong message to Tripoli to abide by the court’s decisions.

The ICC issued arrest warrants in June 2011 for Saif al-Islam Gaddafi, and Sanussi, as well as Muammar Gaddafi. The three were sought on charges of crimes against humanity for their roles in attacks on civilians, including the murder of peaceful demonstrators, in Tripoli, Zawiya, Benghazi, Misrata, and other locations in Libya. On November 19, 2011, anti-Gaddafi forces apprehended Saif al-Islam Gaddafi in southern Libya and brought him to Zintan, in the Nafussa Mountains, where he remains in the custody of one of the country’s many independent and heavily armed militias.

Between national courts and the ICC

It's important to acknowledge that the ICC operates under the principle of complementarity, which means it is a court of last resort, stepping in only in the absence of genuine national proceedings. Libya filed a challenge on 1 May 2012 to try Gaddafi in a Libyan court. The ICC judges initially granted permission to postpone his surrender to The Hague, pending a decision on the challenge.

However, on 31 May 2013, after weighing oral arguments and written briefs, the ICC judges rejected Libya’s bid and reminded the authorities of their obligation to surrender Gaddafi. The judges held that Libya had not provided enough evidence to demonstrate that it was investigating the same case as the one before the ICC, which it would have to do to take the case back for a national trial, and that Libya was genuinely able to carry out an investigation of Gaddafi.

The judges concluded that the Libyan authorities had neither been able to secure legal representation for Gaddafi nor to manage to transfer him into state custody from his current place of detention in Zintan. The Libyan authorities have appealed this decision. But on 18 July, ICC judges rejected Libya's request to suspend his surrender to the court pending the outcome of their appeal. Then on August 27, Libya’s prosecutor-general announced that the pretrial phase in domestic proceedings against Gadaffi, Sanussi and other senior Gaddafi-era officials would begin on September 19. However, the Libyan authorities should prioritize obtaining custody of Gaddafi from the Zintan militia holding him so that he can be promptly surrendered to the ICC. To do otherwise would send the signal that the authorities are not in actuality committed to a new Libya marked by the rule of law.

Human Rights Watch has reported on the many challenges facing the Libyan judicial system, including abuse in custody, denial of access to lawyers, and lack of judicial review. These issues affect Libya's ability to ensure that fundamental rights are respected. In addition, despite some positive steps, the Libyan authorities have struggled to establish a functioning military and police force. They depend heavily on contracted militias for law and order and security. The resulting fragile security environment raises serious concerns about whether Libya can guarantee the safety of everyone involved in the proceedings.

Libya intends to proceed with its appeal on Gaddafi, as the litigation over Sanussi moves on a separate track, but in the meantime it should keep its promise to cooperate with the court. Libya understandably wants to see those responsible for past crimes brought to justice. As Tripoli goes forward with its bids at the ICC, it should demonstrate its intention both to abide by the rule of law at home and to respect its international obligations.

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