As previously reported, the International Criminal Court (ICC), pursuant to U.N. Security Council authorization, has been investigating the situation in Libya and already has issued three arrest warrants, including Muammar Gaddafi.
Recent gains by Libyan rebels have reportedly resulted in the arrest of one of the three suspects wanted by the ICC, Saif Al-Islam Gaddafi. Today the ICC Prosecutor spoke with officials of the Libyan Transitional National Council (TNC) and emphasized his mandate to investigate and prosecute those charged with crimes by the ICC. They discussed the possibility of the apprehension and surrender to the ICC of the three suspects as well as the possibility of their being prosecuted and tried in Libya.
The ICC seeks to encourage national judicial systems’ investigating and prosecuting individuals accused of genocide, crimes against humanity and war crimes under what is known as the principle of complementarity. For this principle to be invoked in the Libyan situation, the ICC itself would have to conclude, under Article 17 of its Rome Statute, that Libya had a functioning national judicial system that was able to provide principles of due process recognized by international law and that any proceedings against the three or other suspects were not undertaken to shield them from criminal responsibility or with the intent not to bring them to justice.
In this still developing situation, it is conceivable that the U.N. Security Council, pursuant to Article 16 of the Rome Statute, could adopt a resolution under Chapter VII of the U.N. Charter directing the ICC to suspend proceedings for renewable periods of 12 months. This scenario seems unlikely at this time.
The United States could play an important role in urging the relevant officials to transfer any Libyan suspects to the ICC. While President Obama did not mention the ICC in his statement released earlier today, he did indicate that “we will continue to work with our allies and partners in the international community to protect the people of Libya, and to support a peaceful transition to democracy.”  The unanimous referral of the Libya situation to the ICC by the Security Council, including the United States, was an important action by the international community to protect the people of Libya and one which the U.S. has continued to support since the referral.
I, therefore, urge others to sign a petition asking President Obama to assist the ICC arrests of Col. Gaddafi and the Libya suspects: http://www.change.org/petitions/ask-president-obama-to-help-the-international-criminal-court-arrest-gaddafi. Hearing from the U.S. supporters of the ICC will help President Obama understand the importance of international justice for the serious alleged crimes in Libya and to build international support for ensuring that no suspects escape justice.
 See Post: The International Criminal Court: Investigations and Prosecutions (April 28, 2011); Post: The International Criminal Court: Libya Investigation Status (May 8, 2011); Post: The International Criminal Court and the Obama Administration (May 13, 2011); Post: The International Criminal Court: Three Libyan Arrest Warrants Sought (May 16, 2011); Post: The International Criminal Court: Investigation of Gand-Rape in Libya (May 17, 2011); Post: The International Criminal Court: Issuance of Three Libyan Arrest Warrants and Other Developments (June27, 2011); Post: International Criminal Justice: Libya, Sudan, Rwanda and Serbia Developments (July 4, 2011).
 Statement of President Barack Obama on Libya (Aug. 22, 2011), http://www.whitehouse.gov/the-press-office/2011/08/22/statement-president-barack-obama-libya.