- By David BoscoDavid Bosco, a Foreign Policy contributing editor and assistant professor at American University's School of International Service. He is at work on a book about the International Criminal Court's first decade.
Saif Gaddafi’s luck has run out. It’s now been confirmed that he was captured in southern Libya. His arrest is another important moment in the dismantling of the previous regime, but it is also setting up an important test for the still young International Criminal Court and its mainly Western backers. In June, the court issued an arrest warrant for Saif, along with his father and the regime’s intelligence chief. Saif is charged with helping to organize the repression of unarmed protesters.
ICC prosecutor Luis Moreno-Ocampo has followed the hunt for Saif closely. He was reportedly in contact with intermediaries at various points and he publicly warned Saif that any plane he sought to flee on could be forced down (this threat was very likely a bluff or, at best, an aspiration). The prosecutor’s focus on Saif is natural: his arrival in the Hague would be a major coup for a court that has struggled to get its hands on its most prominent targets, including Sudanese president Omar al-Bashir and Lord’s Resistance Army commander Joseph Kony.
Saif’s capture now makes a trial in the Hague possible, but not at all certain. Libya’s new authorities have said on several occasions that they plan to try Saif at home, and they will be understandably reluctant to shuffle their prize prisoner off to Europe. Formally, Libya is under a legal obligation–imposed by the UN Security Council–to cooperate with the court. If the Libyan authorities are determined to try Saif at home, the proper procedure would be to send him to the Hague and then argue to the judges that he can be tried at home.
A key element in the Saif endgame now will be the position of the Western governments that ensured the NTC’s victory and still have important leverage. And here the ICC has cause for concern. Key Western officials have often appeared agnostic as to where the Gaddafis should face justice. For the court, those signals raise a disturbing possibility: that the institution has been used as an instrument in the broad Western push to isolate, delegitimize, and ultimately remove the Gaddafi regime. With that accomplished, will the West still make the ICC a priority?
Update: The Associated Press is reporting that the ICC prosecutor will travel to Libya to discuss where Saif should be put on trial.