The International Criminal Court (ICC) charged Gaddafi, Saif al-Islam and Libya’s former intelligence chief Abdullah al-Senussi with crimes against humanity for the bombing and shooting of civilian protesters in February.
Abdel Majid Mlegta, a senior military official of Libya’s National Transitional Council, told Reuters on Wednesday that Saif al-Islam and Senussi wanted to surrender to the ICC in The Hague because they felt unsafe in Libya, Algeria or Niger.
A NTC source said on Thursday Saif al-Islam wanted an aircraft, possibly arranged by a neighbouring country, to take him out of Libya’s southern desert and into ICC custody.
Under such a deal, Saif al-Islam would be taken to The Hague where the ICC shares a detention unit with the U.N. Yugoslavia war crimes tribunal and the Special Court for Sierra Leone, where former Liberian president Charles Taylor is on trial.
ICC spokesman Fadi El Abdallah on Friday declined to say where Saif al-Islam is hiding.
“If we reach agreement, logistical measures for his transfer will be taken,” Abdallah said, adding that this might take some time. “It is not possible to discuss logistics or make presumptions about what is needed at this stage. There are different scenarios depending on what country he is in.”
The ICC has no police force of its own, and therefore has to rely on state cooperation to have suspects arrested.
Some suspects remain at large, such as Sudanese President Omar al-Bashir, whose government has snubbed the court.
The Dutch authorities typically assist the Hague-based courts in transferring suspects to the detention centre.
For example, former Bosnian Serb military commander Ratko Mladic was flown to Rotterdam on a Serbian government plane and then transferred by the Dutch authorities by helicopter or car to the detention centre in The Hague.
“The ICC itself is responsible for transfers to the Netherlands. Upon arrival of a suspect in the Netherlands, we give logistical support,” a Dutch foreign ministry spokesman said.
If Saif al-Islam were to slip into Niger, an ICC member state, the Niger government has an obligation to arrest him. Tunisia and Mali are also member states, whereas Algeria is not.
“The question is to what extent these countries are ready to manage the pressure that will be put on them by an ICC transfer as it will have implications for them with other African countries,” said Damien Helly at the European Union Institute for Security Studies.
The African Union has criticised the ICC’s focus on Africa and has opposed the arrest warrant for Sudan’s Bashir, who has travelled to ICC member states Malawi, Chad, Kenya and Djibouti in the past without being arrested.
Helly questioned whether Saif al-Islam was “desperately trying to save his life” or whether his offer to surrender was a way of buying time or bargaining to improve his situation.
The detention centre, in a leafy residential neighbourhood of The Hague, is next to an old prison where Dutch resistance fighters were imprisoned by the Nazis.
Inmates stay in single-occupant cells about 10 square metres, where they can watch TV, read or work on their cases.
Each cell in the ICC wing contains a bed, desk, bookshelves, a cupboard, toilet, hand basin and a telephone, although calls are placed by the centre’s staff.
Detainees can use computers to work on their cases, but cannot access email or the internet. They can also play sports and pursue other hobbies.
On arrival, Saif al-Islam would first appear in court to be formally charged and informed of his rights.
ICC prosecutor Luis Moreno-Ocampo accused Gaddafi, Saif al-Islam and al-Senussi of drawing up a “predetermined plan” to kill protesters and said that Gaddafi gave the orders, while Saif al-Islam organised the recruitment of mercenaries.
Peter Robinson, a legal adviser to former Bosnian Serb president Radovan Karadzic who is on trial at the Yugoslavia tribunal, said Saif al-Islam should not try to defend himself by arguing that he was just obeying his father’s orders.
“A person is required under international law not to obey an illegal order,” Robinson said, adding that a more useful defence would be to argue that crimes were committed on orders from lower-level commanders.
Geert-Jan Knoops, a Dutch-based international criminal law attorney, said Saif al-Islam could challenge the ICC case on two main fronts – that there was an “abuse of process” or that evidence of a “political plan” to kill protesters was lacking.
He said Saif al-Islam could argue that the ICC prosecution was politically influenced and forced by the United Nations to seek regime change instead of protecting human rights in Libya.
“It can be argued that the ICC prosecution and procedures are abused; in other words: abuse of process,” Knoops said. – Reuters