Arusha, December 11, 2014 (FH) – The International Criminal Court (ICC) says it has issued a finding of non-compliance by the Libyan government over Saif Al-Islam Gaddafi and is referring the matter to the UN Security Council.

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In a statement Wednesday, the Court said Libya has failed to comply with two of its requests, firstly to hand Gaddafi over and secondly to “return to the Defence of Saif Al-Islam Gaddafi the originals of the documents that were seized by the Libyan authorities from the former Defence counsel for Saif Al-Islam Gaddafi in June 2012 in Zintan, and to destroy any copies thereof”.

Pre-Trial Chamber I said both these obligations were of paramount importance “for the exercise by the Court of its functions and powers under the Rome Statute and that the non compliance by Libya effectively prevents the Court from fulfilling its mandate, including its duty to protect the rights of the parties and the interests of victims”.

The judges recognised nevertheless that Libya had “demonstrated in several respects its commitment to the Court and made genuine efforts to maintain a constructive dialogue”. They also recognized the volatile political and security situation in Libya and said they were sensitive to the difficulties Libya is currently facing.

The Chamber said its decision was based only on the failure to obtain cooperation and was “not intended to sanction or criticize Libya but solely to seek the assistance of the Security Council to eliminate the impediments to cooperation”, according to the statement.

The situation in Libya was unanimously referred to the ICC by the UN Security Council in February 2011. In June the same year, the ICC issued arrest warrants for former president Muammar Gaddafi (now deceased), his son Saif Al-Islam and his former intelligence chief Abdullah Al-Senussi. On May 23, 2013, the Court rejected a request by Libya to have Gaddafi’s case declared inadmissible, and reminded Tripoli of its obligation to hand him over. This decision was confirmed on appeal on May 21 this year.

On the other hand, the ICC decided on October 11, 2013 that the Al-Senussi case was inadmissible before the ICC because it was under investigation in Libya. The Court deemed that the country was “willing and able genuinely to carry out such investigation”. This decision was confirmed on appeal.