Of course, under Article 13(b) of the Rome Statute, the Security Council may invoke its powers to take measures directed at the maintenance of international peace and security contained in Chapter VII of the United Nations Charter to refer a situation in which one or more of genocide, crimes against humanity and war crimes are being committed to the ICC Prosecutor.
A Security Council referral is imperative because Libya is not a party to the Rome Statute of the International Criminal Court. Nine votes are necessary to pass such a resolution, as well as the absence of a veto from any of the Council's five permanent members (China, France, Russia, U.K. and U.S.). In the current situation, given that most of the States on the Council have publicly expressed outrage at what is going on in Tripoli, it is unlikely that political support will become a stumbling block. Once a referral resolution is adopted, it is then up to the Prosecutor to determine whether there is a reasonable basis to proceed with a formal investigation, and if so, to later seek arrest warrants or summonses for those allegedly responsible.
The first and so far only instance where the Security Council used its power of referral was in the Sudan situation, based on a draft resolution presented by France. On March 31, 2005, after weeks of deliberations, the Council referred the situation in Darfur since July 1, 2002 to the ICC Prosecutor in Resolution 1593. Of the 15 Security Council members, 11 voted in favour while 4 countries (namely Algeria, Brazil, China and the United States) abstained.
That historic resolution imposed on the Government of Sudan and all parties to the Darfur conflict a duty to cooperate fully with the ICC. In a rather unusual step, which was rightly criticized by legal scholars later, the Security Council decided that none of the expenses incurred by the ICC in carrying out the investigations arising from the Darfur referral shall be borne by the United Nations.
Also, though the ICC later went on to issue indictments against sitting government officials, including President Omar Al Bashir of Sudan (whose warrant has regrettably not yet been enforced by ICC States Parties), the Security Council resolution failed to remove any immunities that maybe applicable in respect of Sudanese officials. Needless to say, the implications of that omission has spawned much controversy and debate among international legal scholars which continues to this day.
It is important that the international community learn from that experience as another African state referral is being considered. Obviously, we are in a tense and time sensitive situation with the reported violence against unarmed civilians by pro-Ghaddafi Libyan security forces increasing day by day, but one hopes that the Security Council will:
a) immediately refer Libya to the ICC to send a strong message that those political and military leaders responsible for perpetrating mass atrocities against Libyan civilians will face the consequences;
b) impose obligations on Libya and any other parties to the conflict to cooperate fully with the ICC;
c) accept to bear the financial burden of any Libyan referral, or at least encourage all UN member states to do so - as necessary through financial contributions - especially Arab League and European Union States; and
d) explicitly remove any immunities that may otherwise exist at customary international law for Ghaddafi and all his henchmen who appear, based on the limited reports we are seeing, to be engaged in planning, instigating and ordering a scorched earth campaign against innocent civilians that may amount to crimes against humanity as defined in Article 7 of the Rome Statute.
It will also immensely help the ICC's effectiveness, and the international community's interest to see justice done in this situation, if the Security Council were to also impose Chapter VII obligations on all states, whether or not parties to the Rome Statute, to cooperate with the Prosecutor's investigations as well as the subsequent execution of any arrest warrants that may later be issued by the Court.