Saif al-Islam Qaddafi, the fugitive son of Libya’s toppled late leader, told the International Criminal Court he is innocent of alleged crimes against humanity, the court prosecutor said on Saturday in the Chinese capital.
ICC charged Qaddafi, 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.
The court, based in The Hague, has said it made informal contact with Saif al-Islam, the son of former Libyan leader Muammar Qaddafi, and is seeking to arrest him and bring him to trial on the charges stemming from Libya's civil war.
ICC Prosecutor Luis Moreno-Ocampo told Reuters the contacts were through intermediaries, and Saif al-Islam maintained he is innocent and wants to understand what could happen to him if cleared of charges.
“There are some people connected with him that are in touch with people connected with us, so we have no direct relation; it's through intermediaries,” Moreno-Ocampo said in a brief interview after arriving in Beijing, where he is attending a law conference.
“But we trust very much the person who is in touch for our side. He says he is innocent, he will prove he is innocent, and then he is interested in the consequence after that.”
“He said he is innocent and he will prove to the judges he is innocent, and then he is more concerned about what will happen after, if he is considered innocent by the court,” said Moreno-Ocampo.
“So we explain to him the legal system, so we are making no deal, though we have a case against him," he added. "But we are explaining the legal system and his right to defend himself.”
The prosecutor confirmed that the court was worried that Saif al-Islam could escape its reach by fleeing to another country through mercenaries. Intelligence reports suggested that the mercenaries could include South Africans, he said.
“We have some information that there is a mercenary group trying to help him to move to a different country, so we are trying to prevent this activity,” said Moreno-Ocampo, adding that "we are also working with some states to see if we can disrupt this attempt."
He did not give details of those efforts.
“We know he has explored different options, and then for us we would like to help him surrender,” he said of Saif al-Islam.
Meanwhile, 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 neighboring 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.
Obligations of ICC member states
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 criticized 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 center, in a leafy residential neighborhood 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 meters, 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 center’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.
“Predetermined plan” to kill protesters
Moreno-Ocampo accused Qaddafi, Saif al-Islam and al-Senussi of drawing up a “predetermined plan” to kill protesters and said that Qaddafi gave the orders, while Saif al-Islam organized 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 defense 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.
Some observers suggest surrendering to the ICC may be only one option for Saif al-Islam, 39, who may alternatively hope for a welcome in one of the African states his father helped. NTC officials have said Saif al-Islam might consider surrender his safest option given his father's killing.
Officials with Libya's National Transitional Council (NTC) have said they believe African mercenaries, including from South Africa, were acting as bodyguards for Saif al-Islam as he took refuge in Bani Walid, a pro-Qaddafi bastion near Tripoli, and then fled south as his father was captured and killed.
Plane on standby
A South African newspaper said on Thursday that a plane was on standby there to fly north and rescue Saif al-Islam along with a group of South Africans working for him. This could not be independently verified.
The ICC has no police force of its own, and therefore has to rely on state co-operation to have suspects arrested.
Niger, where another of the elder Qaddafi’s sons has found refuge, has said it will honor treaty commitments with the ICC, meaning it should extradite any indicted suspect.
Among other neighboring states on which Qaddafi lavished some of Libya’s oil wealth in pursuit of an anti-colonial, pan-African policy, Chad, Burkina Faso and Mali are also signatories to the Rome Statute of the ICC. So are South Africa and Tunisia.
Those which are not signatories, and so might be in a position to ignore extradition requests, include Algeria, Angola, Equatorial Guinea, Sudan and Zimbabwe. It is not clear any of those nations would welcome the fugitive Qaddafi.
Algeria has taken in the wife and three surviving children of the slain Libyan leader, angering its Libyan neighbors.
In France, one of the key initial backers of the revolt against Qaddafi, Foreign Ministry spokesman Bernard Valero was asked about reports that Saif al-Islam might have made it across Algeria or Niger to Mali, a former French colony. He said Paris had little information but added:
“This man’s place is before the international criminal court ... We don’t care whether he goes on foot, by plane, by boat, by car or on a camel, the only thing that matters is that he belongs in the ICC.
“We don’t have many details, but the sooner the better.”