Situation in Libya:
On February 26, 2011, The United Nations Security Council adopted Resolution 1970, by a vote of 15-0, referring the situation in Libya to the ICC. Under Article 13 of the Rome Statute the Security Council may refer a situation in any country to the ICC prosecutor under its mandate of Chapter VII of the Charter of the United Nations, if it determines that the situation threaten international peace and security.
The formal investigation into the situation in Libya was opened by the ICC Prosecutor on 3 March 2011, following a preliminary examination of available information. On 27 June 2011, following an application by the prosecutor, Pre Trail Chamber I issued warrants of arrest for Libyan leader Muammar Gaddafi; his son Saif Al-Islam Gaddafi, Libyan government spokesman; and Abdullah Al-Senussi, Director of Military Intelligence, for alleged crimes against humanity committed in Libya from 15 February until at least 28 February 2011.
On 22 November 2011, PTC I decided to terminate the case against Muammar Gaddafi following his death.
On 19 November 2011, Saif Gaddafi was arrested by Libyan authorities. On 17 March 2012, Al-Senussi was arrested in Mauritania. He was extradited to Libya on 5 September 2012.
On 1 May 2012, Libya challenged the admissibility of the cases before the Court. The ICC exercises jurisdiction under a principle known as “complementarity”, which means that it can only try a case where the state that has jurisdiction is either unwilling or unable to prosecute.
That principle allowed Libya to challenge Gaddafi and al-Senussi’s cases going to the ICC, since it was willing and able to try them in a domestic court. The defendants, on the other hand, wanted to be tried by the ICC – they were keen to avoid the death penalty, which the ICC cannot issue and argued they would not get a fair trial in Libya.
On 31 May 2013, PTC I rejected Libya’s challenge to the admissibility of the case against Saif Gaddafi before the ICC and ordered his surrender. However on 11 October 2013, PTC I ruled that the case against Al-Senussi was inadmissible before the ICC on the basis that Libyan authorities are both willing and able to effectively prosecute him.
On 10 December 2014, Pre-Trial Chamber I issued a finding of non-compliance by the Government of Libya with respect to the non-execution of two requests for cooperation transmitted by the ICC, and decided to refer the matter to the Security Council of the United Nations.
The Chamber found that Libya has failed to comply with the requests by the Court: (i) to surrender Saif Al‑Islam Gaddafi to the Court; and (ii) 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.
The Chamber emphasized that its decision was only based on the objective failure to obtain cooperation. It was not intended to sanction or criticize Libya but solely to seek the assistance of the Security Council to eliminate the impediments to cooperation.