Saif al-Islam
Saif al-Islam Gadhafi immediately after his capture in Zintan. Reuters

The International Criminal Court is asking Libya again to hand over Saif al-Islam Gadhafi, the son of former dictator Moammar Gadhafi. Yet, the former heir apparent of the Gadhafi regime will be tried for war crimes in Libya if the sitting government has its way.

On Thursday, the International Criminal Court said Gadhafi must be sent to the Hague to face a special tribunal. The ICC is adamant that Gadhafi, who was captured in the Libyan desert in November after his father was killed by rebels, be immediately handed over to the court because the Libyan justice system has lost authority. So far Libya is refusing to comply.

At no point have the Libyan authorities been legally justified in their failure to surrender him to the ICC, lawyers Xavier-Jean Keita and Melinda Taylor said in the ruling.

The brutal death of Moammar Gadhafi deprived the Libyan people of their right to justice, and their right to the truth. It would be a travesty for the prospects of a free and fair Libyan state if the same were to occur to his son.

The ICC issued an arrest warrant for Gadhafi, along with his father and former Libyan Information Minister Abdullah al-Senoussi, for crimes against humanity in June, and charged the three with ordering troops to shoot and kill unarmed protestors during demonstrations against the government in February and March.

The United Nations-backed court's harshest penalty is life in prison, but if tried in Libya, Saif al-Islam could be sentenced to death.

Libyan leaders have promised the court, as well as the international community, that Saif al-Islam will receive a fair trial. However, there's a chance Saif al-Islam could be tried for more than just the crimes related to the Libyan revolution, and a domestic court could tie him to many of his father's abuses of power from the past decade or more.

The ICC's latest demand is contradictory to early instructions from the court. In November, ICC chief prosecutor Luis Moreno-Ocampo said during a visit to Tripoli that Libya itself had the right to try Gadhafi.

Our international criminal court acts when the national system cannot act, Moreno-Ocampo said at the time. They [the Libyans] have decided to do it, and that is why we are here -- to learn and to understand what they are doing and to co-operate.

With Libya's interim leaders grasping to maintain control of the country, however, the ICC could be worried the national system is no long able to administer fair justice.

According to Amnesty International, the Libyan justice system has been paralyzed since the end of the civil war, with thousands of detainees waiting for criminal hearings to begin. Amnesty also reported that Gadhafi has been kept in total isolation in a secret location in Zintan without effective access to a lawyer or facilities to communicate with his family for 139 days.

Libyan authorities said Gadhafi will be moved to Tripoli and tried as soon as the construction of a special prison was complete, Reuters reported.

The good thing here is one year ago Saif Gaddafi was threatening people ... now he's arrested and the court is discussing his destiny, Moreno-Ocampo told the Associated Press on Wednesday.

Libyans I'm sure they will accept it or appeal or debate it, but they will engage the court to have the court make the final decision. So that is showing how the world changes in 10 years, the prosecutor said.