“We received information about the arrest of Seif al-Islam in Libya,” says ICC spokesman Fadi El-Abdallah. “The court is now communicating with the NTC in order to confirm this information and eventually to discuss the surrender of Seif al-Islam to the ICC,” he adds.
Abdallah says it is “too early” to discuss the details of the ICC’s talks with the NTC. But he does not rule out Seif al-Islam facing charges in Libya if the conditions are right.
“If there are genuine and serious prosecutions on a national level then the ICC cannot intervene,” Abdallah says, “however, this is a judicial process that needs to be assessed by the [ICC] judges”.
He says that if Libyan authorities wanted to bring about a national prosecution of Seif al-Islam they would have to “challenge the admissibility of the case before the ICC”. This challenge would need to be based on the principle of complementarity, whereby the ICC is intended to complement and not replace a country’s judiciary.
According to Abdallah, ICC judges would assess this if the Libyan national authority requested that Seif al-Islam be tried in Libya and not extradited to The Hague. In the meantime they have an “obligation to cooperate fully with the court in accordance with resolution of the Security Council”.
“If Gadhafi, his son or Abdullah al-Senussi [Gadhafi's intelligence chief] remain in the country I think it would be a major security threat,” says Charles Gurdon, a Libya analyst from Menas Associates. “If they can get the three men off their hands by sending them to The Hague - all well and good - I don’t think they’ll be keen to keep them inside the country,” he adds.
The ICC issued an arrest warrant for Gadhafi, Seif al-Islam and Senussi on 27 June for crimes against humanity.
Libya is not a state party to the Rome Statute which established the ICC. But the adoption of Security Council Resolution 1970 on 26 February referred the situation in Libya to the prosecutor of the ICC.