[JURIST] The Libyan government on Tuesday formally challenged [application, PDF] the right of the International Criminal Court (ICC) [official website] to try Saif al-Islam Gaddafi [BBC profile; JURIST news archive], the son of former Libyan leader Muammar Gaddafi [BBC obituary; JURIST news archive]. Libya argues 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, the ICC does not have jurisdiction. Libya further argues that trying Saif al-Islam is critical for the country’s transition to democracy and it is critical for the ICC to respect the Rome Statute’s dedication to national sovereignty: “To deny the Libyan people this historic opportunity to eradicate the long-standing culture of impunity would be manifestly inconsistent with the object and purpose of the Rome Statute, which accords primacy to national judicial systems.” Libya points out the progress that its judiciary has made and states that the country is committed to conducting a fair trial. The application seeks to declare the case inadmissible before the ICC and squash the request to turn Saif al-Islam over to the ICC.

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. Last month 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]