The resolution also referred the situation to the International Criminal Court (ICC). Because Libya is not a signatory to the Rome Statute, which created the ICC, UN Security Council approval was required to grant jurisdiction. JURIST Guest Columnist Kevin Govern commented on the importance of bringing Gaddafi to trial before the ICC and resisting the historical option of allowing regime members to go into exile:
The Gaddafis, and their key co-conspirators, should be handled in a manner consistent with the trend emergent over the past decade; the refusal of subsequent governments to grant amnesty for the former dictator's acts of genocide, war crimes or crimes against humanity. While lacking a certain expediency in removing a dictator from control, this protocol reinforces state practices and international custom promoting accountability and respect for the rule of law.Immediately following UN approval, the ICC announced that it would not grant immunity to any person perpetrating crimes against humanity in Libya.
The ICC launched an official investigation into the violence against Libyan civilians on March 3, 2011. The next day, Chief Prosecutor Luis Moreno-Ocampo formally announced that his investigation would target Gaddafi and his inner circle. However, JURIST Guest Columnist Charles Adeogun-Phillips argued that Gaddafi should have faced hybrid international and domestic prosecution in order to avoid jurisdictional confusion, preserve Libyan sovereignty, and minimize bias against Gaddafi for other incidents that he was allegedly involved in, such as the Lockerbie bombing. Conversely, JURIST Guest Columnist Richard Dicker of Human Rights Watch (HRW) called for Gaddafi's prosecution before the ICC to ensure that the victims of crimes against humanity are given the possibility of redress.
The UN sanctions did not quell the violence, however, and in March 2011 the Arab League called for a no-fly zone over Libya to prevent military action against civilians. The UN Security Council complied the following week, imposing a no-fly zone over the country with Resolution 1973. The resolution called for a ceasefire between the Libyan government and rebel forces, banned all flights in Libyan airspace except those for humanitarian purposes, and authorized UN member states to take "all necessary measures . . . to protect civilians and civilian populated areas under threat of attack . . . while excluding a foreign occupation force of any form on any part of Libyan territory."
On March 19, 2011, American, British and French military forces, in conjunction with NATO, carried out operations against Gaddafi's forces. According to JURIST Special Guest Columnist Curtis Doebbler, this use of international force against Libya was a violation of international law because Resolution 1973 failed to comport with Article 42 of the UN Charter, which requires a determination that "measures not involving the use of force" have failed. The military effort initially resulted in an effective stalemate between Gaddafi's forces and those of the NTC, with the western portion of the country under Gaddafi's control, and the eastern portion under that of the NTC. This situation was later altered by the successful NTC takeover of Tripoli on August 22, 2011.
The ICC investigation quickly uncovered evidence that Gaddafi had been involved in shooting civilians, mass arrests, torture and forced disappearances. In March 2011, Ocampo claimed that he was certain that the ICC would bring formal charges against Gaddafi. Following a request from Ocampo, the ICC issued arrest warrants for Gaddafi, his son and his brother-in-law on June 27, 2011. The warrants alleged that the three men conspired to perpetrate and cover up crimes against humanity committed between February 15 and February 28, 2011.