Late last year, news emerged that Saif Al-Islam Gaddafi, the son of the former Libyan dictator Muammar Gaddafi, is planning to be a candidate in the upcoming Libyan presidential election. According to Basem al-Hashemi al-Soul, who spoke on Saif Gaddafi’s behalf, “Saif al-Islam Gaddafi, the son of the former Libyan president, enjoys the support of major tribes in Libya so he can run for the upcoming presidential elections due in 2018.”

This is a new twist in the story of Saif Gaddafi, who is also wanted by the International Criminal Court (ICC) on two counts of crimes against humanity for murder and persecution relating to the violent 2011 uprising in Libya. The ICC issued the arrest warrant for Saif Gaddafi on June 27, 2011, and the case remains at the pre-trial stage, pending his transfer to The Hague.

Gaddafi had been previously detained by a local militia in the Libyan town of Zintan.  He was released in June 2017 after six years of captivity, but he still faces a death penalty sentence handed down in absentia by a court in Tripoli. Following his release from the militia, the ICC reiterated a call for his surrender and arrest. The Government of National Accord (GNC) has long expressed its willingness to prosecute Saif Gaddafi among others in Libya, yet also stated that they will work to cooperate with the ICC in conducting those trials.

Ayman Abu Ras, an official in the Libyan Popular Front party, also affirmed the news, stating that Saif Gaddafi will seek to implement a “reform” program that will focus on reconstruction to serve all Libyans, according to The Guardian. France 24 quoted Abu Ras as saying that Gaddafi is in Libya moving freely, and he will appear in public when the election schedule is announced by the High National Election Commission (HNEC), which is the body responsible for the electoral process. The HNEC has already completed the voter registration process.

The dates for the next presidential election have not been specified, but the head of the UN Support Mission in Libya, Ghassan Salame, said that the Mission was seeking to support the elections before the end of  2018.

On Wednesday of this week, the ICC prosecutor, Fatou Bensouda, delivered her semi-annual statement to the UN Security Council on the situation in Libya. The statement did not address Saif Gaddafi’s political ambitions but did highlight his status as a fugitive of the court. Specifically, the prosecutor said that “[r]egardless of Mr Gaddafi’s custodial status, I take this opportunity to reiterate that the ICC warrant of arrest against him remains outstanding and that Libya continues to be under an obligation to immediately surrender him to the Court.”

This is not the first time an ICC suspect has caused political and legal controversy by seeking to run in national elections. In the lead up to the 2013 Kenyan presidential election, ICC-indictees Uhuru Muigai Kenyatta and William Samoei Ruto declared their intention to run for president and deputy president, respectively. Both were facing trial at the ICC for crimes allegedly committed during the 2007 and 2008 post-election violence. (It should be noted that both Kenyatta and Ruto were issued a summons to appear and were not subject to an ICC arrest warrant.)

Their election bid was challenged in local courts by petitioners who asked judges to consider whether the candidates could pass the integrity standard in the Kenyan Constitution, considering the ongoing ICC proceedings.  The High Court in Kenya  ruled that it had no jurisdiction to determine matters related to the upcoming presidential election, so Kenyatta and Ruto both went on to participate in the election. Despite the ICC cases against them, Kenyans subsequently elected Kenyatta and Ruto president and deputy president.

The issue also emerged in the case of Jean-Pierre Bemba, the leader of the Movement for the Liberation of Congo and a former vice president in the Democratic Republic of Congo (DRC). Unlike the Kenya situation, Bemba was already on trial at the ICC in 2011 when he announced his candidature for president of DRC.  Bemba’s defense team had requested that he be granted exceptional release in order to travel to the DRC on a private jet, using his own means, and staying in Congo for only an hour in order to fulfill the requirement of registering his candidacy in person. The trial chamber rejected this request, making it clear that provisional release was intended for humanitarian purposes in “extraordinary circumstances.” The trial chamber concluded that electoral registration “is not the type of circumstance that warrants such extraordinary relief.” As a result, Bemba was not able to be on the ballot and participate in the DRC elections.

It remains to be seen whether Saif Gaddafi will be allowed to run and serve as president of Libya, if subsequently elected. The volatile political and security situation in Libya only adds to the uncertainty of his candidacy.

A Libyan political analyst said in an interview with France 24 that “there are legal impediments that will not permit Saif Gaddafi from running for the presidency, including a death sentence in absentia from a Libyan court, as well the ICC arrest warrant.” However, the Defense Minister in the GNC hinted that “there is nothing that impedes Saif Al-Islam from practicing his political freedom” and that “there is a popular consensus that he can be part of solution.”

Despite potential obstacles, a diplomat involved in election preparations said to The Guardian that the ICC indictment against Gaddafi would not necessarily stop him from standing, or winning. “We don’t control who stands in the election. That is up to the Libyans,” the diplomat said, pointing to the precedent of Uhuru Kenyatta’s 2013 presidential election win in Kenya despite ICC charges. “You can see he [Gaddafi] has popularity on the ground, particularly in the south,” he added.

Mohamed Osman is an Aryeh Neier Fellow at the Open Society Justice Initiative. He holds a LL.B and Postgraduate Diploma on Human Rights from the University of Khartoum as well as a LL.M on International Human Rights and Humanitarian Law from University of Essex (2015-2016). His thesis focused on the application of rule of law by armed opposition groups in their controlled territories.