Negotiating the surrender of Saif al-Islam, the son of Libya’s slain dictator Muammar Gaddafi, would present logistical and security challenges to the world’s top war crimes court which will examine various possible scenarios to bring him to trial.
The International Criminal Court had 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.
A source with Libya’s National Transitional Council said on Thursday Saif al-Islam wants an aircraft, possibly arranged by a neighbouring country, to take him out of Libya’s southern desert so he can turn himself in to the ICC, Reuters reports.
If arranged, Saif al-Islam would be transported 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.
The court is trying to confirm with the NTC whether Saif al-Islam wants to surrender and, if the information is confirmed, will consider the best measures for his transfer, ICC spokesman Fadi El Abdallah said.
“It depends on where the suspect is and how we can get into contact with him and what would be necessary to bring him to The Hague. There are different scenarios,” El Abdallah said.
With no police force of its own, the ICC has relied in the past on state co-operation to have its suspects arrested and many of them have remained fugitives such as Sudan President Omar al-Bashir whose government has snubbed the court.
Still, the ICC assisted in transporting several Sudanese rebels to The Hague in recent years to face charges over the killing of 12 African Union peacekeepers in Darfur in 2007.
The Dutch authorities provide assistance to the Hague-based courts in the transfer of suspects to the detention centre, such as when former Bosnian Serb military commander Ratko Mladic was flown to Rotterdam on a Serbian government plane.
Mladic was 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 spokesman at the Dutch foreign ministry said.
If Saif al-Islam were to slip into Niger, an ICC member state, the Niger government has an obligation to arrest him, while Tunisia and Mali are also member states. 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 been critical of 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.
Surrendering to the court would, at the very worst, put Saif al-Islam in prison.
But 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.
Once in The Hague, Saif al-Islam would be held at the ICC detention centre, located near the beach in a leafy residential neighbourhood in The Hague.
The detention centre is built next to an old prison where Dutch resistance fighters were imprisoned by the Nazis and inmates have single-occupant cells about 10 square metres in size, 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 work on their cases using computers but cannot access email or the internet.
They can engage in sports activities and other hobbies.
But if he arrives in The Hague, Saif al-Islam would be also required to appear in court for an ‘initial appearance’, where he would 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, also said Saif al-Islam should not try to defend himself by arguing he was just obeying orders.
“A person is required under international law not to obey an illegal order. It would not be useful for Saif al-Islam to defend himself on the grounds that he was just obeying orders from his father,” Robinson said.
He said a more useful defence would be to argue that crimes were committed upon 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, arguing an “abuse of process” or by proving there is no evidence of a “political plan” to kill protesters.
He said Saif al-Islam could argue that the ICC prosecution was politically influenced and forced by the United Nations to achieve a regime change instead of protection of human rights in Libya. “It can be argued that the ICC prosecution and procedures are abused; in other words: abuse of process,” Knoops said.