On Tuesday, the question contained in the title was asked of International Criminal Court Prosecutor, Luis Moreno-Ocampo. His answer:
The decision to do justice in Libya should be taken by the Libyan people. Currently, Libya is not a State Party to the Rome Statute. Therefore, intervention by the ICC on the alleged crimes committed in Libya can occur only if the Libyan authorities accept the jurisdiction of the Court, (through article 12(3) of the Rome Statute). In the absence of such step, the United Nations Security Council can decide to refer the situation to the Court. The Office of the Prosecutor will act only after either decision is taken.
You see, since Libya is not a party to the treaty which created the ICC, the ICC would not have jurisdiction unless Libya joined the ICC and granted it retroactive jurisdiction. Alternatively, the Security Council could refer the case to the Court, as it has in the case of Sudan.
Well, it now appears that the Security Council may be considering a draft resolution which would refer the actions taken by Qaddafi to the ICC for potential prosecution. Reuters is reporting that the draft being circulated by the British and French states that "the widespread and systematic attacks currently taking place in Libya against the civilian population may amount to crimes against humanity."
Of course, the referral language in the draft may just be an opening gambit by the British and French to get the strongest possible resolution. It is likely that both the Chinese and the Russians would be loath to support a referral to the ICC (to which they, like the US, do not belong), and both countries do have the veto. So, this may be merely something which the proponents will be willing to discard during negotiations, should either the Chinese or the Russians balk. However, it IS on the table at this point.
Of course, even if the referral was made, it seems unlikely that Qaddafi would allow himself, should he finally lose power, to be taken into custody alive. However, the thought of him facing an international court is an intriguing one. We will probably learn more about the draft resolution as the weekend progresses.