By Louis Charbonneau
UNITED NATIONS (Reuters) - The chief prosecutor of the International Criminal Court announced on Thursday she will not appeal last month's ruling by judges at the Hague-based court that Libya is free to try Abdullah al-Senussi, former leader Muammar Gaddafi's spy chief.
The judges said on October 11 that since Libya was able and willing to give Senussi, head of intelligence when Libya's late ruler Gaddafi was in power, a fair trial on charges that were similar to the ICC's, there was no need to transfer him to the ICC's custody. Senussi's lawyers have said they will appeal.
"After fully studying the decision, my office has concluded that there is no legal basis for appeal," ICC chief prosecutor Fatou Bensouda told the U.N. Security Council during a meeting on Libya. She added that if "new facts arise in the future" that would justify an appeal, she would file one.
"The challenge is now for Libya to demonstrate to the world that al-Senussi will receive a genuinely fair, impartial and speedy trial that respects all his rights and fundamental guarantees, including the right to council of his choice," Bensouda said.
ICC prosecutors have charged Senussi and Gaddafi's son Saif al-Islam with crimes against humanity during the uprising and subsequent civil war that toppled Gaddafi in 2011. Both men are in detention in Libya.
Senussi's lawyer has echoed many legal scholars in questioning whether Libya is in a position to administer a fair trial just two years after the end of Gaddafi's four-decade rule that has left the country divided and largely lawless.
The ICC and Libya are still wrangling over who has the right to try Saif al-Islam. The ICC has called on Libya to hand over Gaddafi's son so that he can be tried by the international court, not in Libya.
ICC judges have rejected Libya's position, saying Libyan government lawyers had not proved their authorities were investigating the same crimes as the international prosecutors.
"The court has reiterated the obligation of the government of Libya to surrender Mr. Gaddafi to its custody," Bensouda told the 15-nation Security Council.
The council referred the case of Libya to the ICC in early 2011. Prosecutors decided to bring charges against Gaddafi, his son and Senussi. Since Gaddafi was killed at the hands of rebels in October 2011, the ICC has been pursuing its cases against Senussi and Saif al-Islam.
Libyan U.N. Ambassador Ibrahim Dabbashi told reporters after the council meeting that he cannot imagine Libya ever agreeing to hand over Saif al-Islam to the ICC.
"I think no Libyan government can submit Saif to the ICC," he said. "He is a very important part of the old regime. I think everything he is going to say, it is a part of our history ... explaining the behavior of the old regime. So it's very important to have all of these documents."