After four decades of autocratic rule under Gaddafi, many argue that Libya is unprepared and unable to legitimately, effectively, and impartially prosecute Saif or Senussi. Libya's National Transitional Council (NTC), however, has claimed that both must be tried in Libya, under Libyan law, by Libyan judges. In May 2012, the NTC issued an admissibility challenge at the ICC in which it claimed that the ICC’s case against Saif and Senussi was “inadmissible on the grounds that its national judicial system is actively investigating Mr Gaddafi and Mr al-Senussi”. At the same time, in an effort to demonstrate that it was prepared for trial, Libyan authorities unveiled a refurbished courtroom in Tripoli as well as a luxurious prison complex on the outskirts of the capital where it was suggested that Saif would be held during his trial.
Problematically, however, Libya still does not have custody over Saif or Senussi. Despite numerous declarations by the NTC that he would be transferred to Tripoli, Saif remains in the hands of the Zintan brigade that arrested him in November 2011, who have refused to surrender Saif to Libya’s national authorities. It is also widely believed that the Zintan militia used their custody of Saif as leverage to get local commander Osama al-Juwali appointed as Libya’s interim defence minister.
More recently, the Zintan brigade has insisted that Saif be tried in Zintan rather than Tripoli. Libyan authorities appear to have conceded to this position as the chief Libyan prosecutor in Saif’s case, Milad Abdul-Nabi Dekali, confirmed that Colonel Gaddafi’s son would be tried in Zintan. Given the unwillingness of the Zintan brigade to cooperate with the NTC, it is far from clear that Libyan authorities themselves would be able to conduct the trial. The NTC handed power over to a newly elected national assembly on August 8, but it is unclear at this early stage whether this will make a difference to negotiations around the trials. (...)