[JURIST] A pre-trial chamber of the International Criminal Court (ICC) [official website] on Friday granted a request [decision, PDF; press release] by the Libyan government to postpone an order to transfer Saif al-Islam Gaddafi [BBC profile; JURIST news archive], the son of former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive], to ICC custody. The order will be postponed until the court decides Libya’s challenge to the admissibility of the case in the ICC. The court noted that Libya must be prepared to turn over Saif al-Islam if the court finds that the case is admissible. The Libyan government formally challenged [JURIST report] the right of the ICC to try Saif al-Islam last month. Libya argued that under Article 17 of the Rome Statute [text], the ICC does not have jurisdiction when “[t]he case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution.” Since the Libyan national judiciary is actively investigating Saif al-Islam, Libya asserted that the ICC does not have jurisdiction.
The issue of which court is going to try Saif al-Islam has been in dispute since he was captured [JURIST report] by Libyan rebel forces in November. Prosecutor-General Abdul Azizi al-Hassadi told reporters on Thursday that Libya will begin the prosecution of senior officials [JURIST report] who served under former Gaddafi in June, in a series of trials that will likely be considered test cases for Libya’s ability to fairly try high-profile Gaddafi officials. In April, ICC chief prosecutor Luis Moreno-Ocampo [official profile] stated that the maximum penalty for Saif al-Islam in the ICC would be life in prison, but if convicted in a national court he could face the death penalty [JURIST report]. Earlier that month, Ocampo asked the ICC to report Libya to the UN Security Council [official website] for failing to turn over Saif al-Islam. Libya expressly denied [JURIST report] the ICC’s request for such action and stated that Saif al-Islam will face trial within the country. In February 2011, the UN Security Council voted unanimously to refer the matter in Libya to the ICC prosecutor [JURIST report]. The ICC claimed jurisdiction over Saif al-Islam despite its announcement in November that it may allow Libya to conduct the trial [JURIST report].