(Editor’s Note: This article is partly based on a previous comment by Michele Caianiello and Chantal Meloni in the Italian Review, Sistema penale, dated Jan. 24, 2025.)
A dark chapter in the history of refusals by States Parties to comply with their obligations to cooperate with the International Criminal Court (ICC) was written last week by Italy.
The case concerns the arrest of a high-ranking Libyan police officer, Osama Elmasry Njeem (also known as “Almasri”), pursuant to a sealed ICC arrest warrant, for grave war crimes and crimes against humanity committed in the Mitiga prison, in Tripoli, the country’s capital. Arrested on Jan. 19, 2025, by Italian police officers (of the special unit called “Digos,” in charge of judicial cooperation) in Turin while he was there for personal reasons (reportedly attending a Juventus-Milan soccer match), Elmasry was released two days later, on Jan. 21, by order of the Rome Court of Appeal and quickly transferred to Libya on an Italian military plane. On Jan. 22, the ICC issued a press release outlining the facts, and the arrest warrant, issued on Jan. 18, 2025, by Pre-Trial Chamber I, was subsequently unsealed.
The decision to release Elmasry and hastily fly him back to Libya – de facto disrupting the ICC’s year-long investigation and efforts – immediately drew widespread outrage in Italy and beyond, including among the victims’ rights organizations and human rights defenders. With a fitting expression, eminent criminal law professor Mario Chiavario called it, “the eclipse of law.”
With this decision, Italy appears to have violated its obligations under the Rome Statute of the ICC, which it ratified in 1999. Indeed, Article 86 of the Statute obliges all States Parties to “cooperate fully” with the ICC in the investigation and prosecution of crimes within the Court’s jurisdiction. However, Italy appears not to have followed the procedures under Article 59 of the Statute, which regulates the Arrest proceedings in the custodial State.
Moreover, the decision not to extradite Elmasry, and to expel him from Italian territory and return him to Libya, is also critical in relation to the United Nations Security Council, which triggered the ICC jurisdiction in the situation in 2011, by referring it under Article 13(b) of the Statute in the wake of the turmoil following the uprising against Colonel Muammar Qaddafi and the violent attacks against the civilian population in Libya (see U.N. Security Council Resolution 1970).
The case has dramatic consequences for the investigation in the specific situation, but also more broadly, as it affects and calls into question the entire system of cooperation between a State Party and the ICC, weakening at its core the ability of the Court to function effectively. The Italian decision was formally presented as a judicial one, taken by the Rome Court of Appeal on procedural technicalities, but it also involves political responsibility, as it was a direct consequence of the (deliberate) inaction of the Italian Minister of Justice. Indeed, the government attributed the release of the suspect to procedural reasons, but, as the New York Times quickly noted, the decision appeared to be linked to the fact that “Italy depends on Libya to stem the flow of migrants from Africa.” In this regard it is invaluable the work of Italian journalists that have been investigating the connections between Italian and Libyan authorities for years.
The political dimension of the issue is currently the subject of heated debate in the Italian Parliament, where the government has been asked to provide an explanation for its actions, which so far refused.
On Jan. 28, the Italian Prime Minister, Giorgia Meloni, released a video on social media, informing that she was notified of the opening of a criminal investigation against herself, the Minister of Justice, the Minister of the Interior, and another government official in her immediate office, for their misconduct in the case. Without going into the details of this latest aspect of the case, the crimes as identified by the criminal prosecutor are aiding and abetting someone who committed a grave crime in evading the investigation by the authorities, including those carried out by the International Criminal Court (pursuant to Article 378 of the Italian criminal code, c.p.) and misappropriation (“peculato,” pursuant to Article 314 of the Italian criminal code, c.p.). Being the crimes allegedly committed by government officials, it is now for the competent organ, the Ministers’ tribunal, to decide whether the investigation shall proceed (subject, in that case, to a parliamentary authorization).
Elmasry’s Alleged Crimes in Libya and Arrest in Italy
As we have learned from the Pre-Trial Chamber’s now unsealed decision, the Office of the Prosecutor (OTP) filed the sealed application for the arrest warrant against Elmasry on Oct. 2, 2024, as part of the ongoing investigation into the situation in Libya. The application included the suspect’s alleged responsibility for a long list of crimes against humanity and war crimes within the jurisdiction of the Court, committed at the Mitiga Prison in Tripoli, Libya, from approximately February 2015 until at least the date of the application’s request. Mitiga Prison, of which Elmasry was the director during the relevant period, is the largest detention facility in western Libya: it is estimated that several thousand detainees were held at the facility during the period covered by the application.
The crimes analysed by the Prosecutor, as reported in the arrest warrant (para. 2), included Imprisonment as a crime against humanity (Article 7(1)(e) of the Statute); outrages upon personal dignity as a war crime (Article 8(2)(c)(ii) of the Statute); cruel treatment as a war crime (Article 8(2)(c)(i) of the Statute); Torture as a war crime and as a crime against humanity (Articles 8(2)(c)(i) and 7(1)(f) of the Statute); Sexual violence as a war crime and as a crime against humanity (Articles 8(2)(e)(vi) and 7(1)(g) of the Statute); Rape as a war crime and a crime against humanity (Articles 8(2)(e)(vi) and 7(1)(g) of the Statute); Murder and attempted murder as war crimes and crimes against humanity (Articles 8(2)(c)(i) and 7(1)(a) of the Statute); Enslavement as a crime against humanity (Article 7(1)(c) of the Statute); Sexual slavery as a war crime and as a crime against humanity (Articles 8(2)(e)(vi) and 7(1)(g) of the Statute); and persecution as a crime against humanity (Article 7(1)(h) of the Statute).
The evidence presented showed that among the victims of the alleged thousands of crimes there were children, including a 5-year-old boy, who were subjected to sexual violence or rape, including a 15-year-old boy, by Mitiga prison guards.
On Jan. 18, 2025, Pre-Trial Chamber I, by majority, issued the requested arrest warrant. In the decision, the Judges found that, based on the evidence presented by the Prosecution, there were “reasonable grounds to believe,” as defined in the Statute (Article 58), that the elements of most of the crimes set forth above had been established. On the same day, the “ICC Registry, acting in consultation and coordination with the Office of the Prosecutor and under the Chamber’s authority, submitted a request for the arrest of the suspect to six States Parties, including the Italian Republic,” according to the ICC’s press release.
On the same day, at the Court´s request, Interpol issued a Red Notice to alert the relevant law enforcement authorities in the respective national jurisdictions. On this basis, the following day, the Italian police, having identified Elmasry’s presence at a hotel in Turin, conducted a successful emergency operation and arrested the suspect. Then “the suspect was held in custody pending the completion of the required domestic proceedings related to his arrest and surrender to the Court.” The arrest of Elmasry was communicated to the Prosecutor General of the Court of Appeal of Rome (PG), as the competent judicial authority under the Italian ICC cooperation law. On the same date, the Turin prosecutor informed the Minister of Justice of the arrest. The Minister of Justice, however, apparently remained inactive, failing to transmit the relevant acts, as received by the ICC, to the PG of Rome, as provided for by the cooperation law. Indeed, article 11(1) of the Law: Article 11 para. 1 of the Law states:
When the object of the request of the International Criminal Court is the surrender of a person against whom a warrant of arrest pursuant to article 58 of the Statute or a conviction decision to a prison term has been issued, the Prosecutor General at the Court of Appeal of Rome, having received the acts, requests to the same court of appeals the application of the measure of precautionary detention in respect of the person whose surrender is sought.
Two days later, on the same afternoon of the release of the suspect, the Minister declared that he was stillassessing what to do in light of the “complexity of the paperwork” (for the reconstruction of the facts, in the same sense, see this analysis by Luca Poltronieri Rossetti). Unexpectedly, and “without prior notice or consultation” with the ICC, the Rome Court of Appeal, upon request of the defence and in accordance with the General Prosecutor’s advice, ruled that the arrest was irregular and ordered the suspect’s immediate release on Jan. 21.
The legal reasoning behind this decision is quite technical and is based on an interpretation of Italian law that seems prima facie possible. However, the Court of Appeal’s reasoning does not stand up to careful analysis, as several commentators have already pointed out (see, among the first ones in Italian: Michele Caianiello and Chantal Meloni; Khrystyna Gavrysh; Valeria Bolici and Alberto di Martino; Lavinina Parsi, and, in English, Rossetti).
The Court of Appeal of Rome’s Decision
At the heart of the legal controversy is the order issued by the judges of the Court of Appeal of Rome, which released the suspect. The order is based on the premise that the law, which implemented the ICC cooperation regime in Italy (Law no. 237 of 2012 or “cooperation law”) does not explicitly regulate the procedure to be followed for an arrest on the initiative of the police in case of urgency, despite regulating the procedure for the arrest and surrender of a suspect to the ICC (Article 11 of Law 237/2012).
In the judges’ opinion, the police erred in arresting Elmasy, as the general discipline provided by the Italian Code of Criminal Procedure on this point, i.e. for an urgent arrest by the police for an extradition cases (Article 716 c.p.p.) cannot be applied here. Such an integration of the procedure, by referring to the general rules, would be contrary to the principle of legality (Article 13 of the Italian Constitution), because, this is the judges’ argument, the special legislation on cooperation with the ICC, and specifically the provision on the arrest and surrender (Article 11 of Law 237/2012) would not allow Elmasry’s arrest. In other words, if the law had wished to grant the power of an arrest by police initiative, it would have said so explicitly.
In sum, according to the restrictive interpretation given by the judges, the law would not allow the police to proceed with an urgent arrest of someone subject to an ICC warrant, without the previous initiative by the Minister of Justice. Therefore, the arrest of Elmasry, who was wanted by an ICC arrest warrant and arrested on the spot, on initiative of the police, on the basis of an Interpol Red Notice, was irregular. The arrest could not be validated, and Elmasry was released.
Moreover, the judges incidentally note that, in the absence of a previous exchange (“interlocuzione”) between the Minister of Justice and the General Public Prosecutor, it is also not possible for the court to decide for the imposition of the arrest as a precautionary measure (independently of the previous arrest), as “the relations between the Italian State and the International Criminal Court are handled exclusively by the Minister, who is responsible for receiving requests from the Court and following them up” (quoting Article 2, Law 237/2012).
Assessing the Court of Appeal’s Decision
Before examining whether a different decision would have been possible in the light of the current legislation, it should be noted that the Italian cooperation law (no. 237/2012) appears indeed complicated, because of unnecessary passages involving the Minister of Justice, as already pointed out elsewhere. This is paradoxical if one considers it in comparison to the European Union legislation on arrest warrants: given that the crimes under the Rome Statute are subject to mutual recognition within the European Union, if, hypothetically, Elmasry had been arrested on the basis of a German or French arrest warrant, the surrender procedure under the aegis of the European arrest warrant would have been straightforward between the judicial authorities, while the Minister would have played no role (except to facilitate the exchange of information, if necessary).
Nevertheless, the reasoning of the Court of Appeal of Rome is not convincing. The cornerstone of the decision is that the cooperation law is specific law (lex specialis) and would be exhaustive on the point of arrest and surrender, thus leaving no room for integration of possible gaps with the general rules. The judges in this way de facto rule out any possibility of on-the-spot arrest by the police, and they do so specifically (and only) for those suspects reached by an ICC arrest warrant. Several arguments would have allowed an alternative conclusion.
The first one is to be found in the law itself: In fact, another provision of Law no. 237/2012 (Article 3, para. 2) expressly refers to the Code of Criminal Procedure for everything that is not included in it. In the case at hand, as we have more thoroughly analysed elsewhere (Caianiello and Meloni), it was not only possible, but also obligatory, to refer (for the regulation of an urgent arrest on police initiative) to the general discipline on extradition, as contained in the Italian Code of Criminal Procedure, which provides the systematic framework for the special legislation, as acknowledged by the same Court of Appeal.
It can be noted that a different conclusion, would be contrary to the provision of Article 88 of the Rome Statute, which requires that “States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part.“ Therefore, if the Italian cooperation law were to be interpreted as lacking the possibility to arrest a suspect wanted by the ICC on the initiative of the police in urgent cases, this could even expose Italy to a violation of its obligations under the Rome Statute.
Second, a teleological argument can be made, by emphasizing that denying the police the possibility to carry out an urgent arrest (in the absence of a prior initiative by the Minister of Justice) in cases of arrest warrants issued by the ICC would lead to the paradoxical result of excluding this opportunity precisely and exclusively in cases regarding the commission of the most serious international crimes; crimes which are committed by individuals often linked to the State apparatus. This is inconsistent with the approach of Law 237/2012, which, different to the general discipline on extradition (Article 708, para. 1 c.p.p.), does not assign to the Minister of Justice any power to “decide on the merits,” but only an executive role, as clarified by the wording of the provision on the surrender to the ICC (Article 13, para. 7, Law 237/2012).
Moreover, as already noted by others, this result would openly contravene the principle contained in Article 91(2)(c) of the Rome Statute, according to which the “[r]equirements for the surrender process in the requested State […] should not be more burdensome than those applicable to requests for extradition pursuant to treaties […] and should, if possible, be less burdensome, taking into account the distinct nature of the Court.”
Finally, the approach of the Court of Appeal would lead to results incompatible with the reasoning of the law itself, for which the cooperation of the Italian State with the ICC constitutes an obligation (Article 1, Law 237/2012), in conformity with the Statute (Article 86 Statute). In this regard it shall be noted that Article 59, para. 4, last sentence, of the Statute reads as follows: “It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).” In other words, it is not open to the custodial State to consider the merits of the case.
Having said that, even if one were to hypothetically accept the thesis that the initial arrest was irregular and therefore invalid under the Italian law, there remains another very problematic profile of the matter at hand. Indeed, it is difficult to understand how the Minister could not have remedied his (alleged) initial non-involvement, by intervening ex post facto, i.e. after he was informed of the arrest of the suspect by the police in Turin.
In this regard, as noted already by other experts (Bolici and di Martino; Mario Chiavario), the reasoning of the decision wrongly conflates two separate aspects: (1) the provisional arrest in urgent cases on initiative of the police (on which Law 237/2012 is silent); and (2) the application of a precautionary detention measure. On this second aspect, the Rome Court of Appeal could have ruled regardless of the decision on the arrest of Elmasry on the initiative of the police. In order to do so the Rome General Prosecutor, however, would have needed an “input” by the Minister of Justice, which never arrived. Indeed, it seems clear that the Minister’s intervention could have remedied the situation, if not by validating the arrest of Elmasry, then at least by giving the Rome General Prosecutor the information necessary to request the imposition of a custodial measure, on the basis of the ICC arrest warrant, and allow the subsequent surrender of the suspect to the Hague.
Frankly, it is difficult to understand what prevented the Minister of Justice from acting given that the competent Italian authorities were immediately informed of the arrest warrant, as acknowledged by the ICC: “The Court’s request was transmitted through the channels designated by each State and was preceded by prior consultation and coordination with each State in order to ensure the appropriate receipt and follow-up of the Court’s request.”
These are among the aspects that will need to be urgently clarified by the Italian government. In fact, the overall behavior of the Italian authorities, including the contextual decision by the Minister of the Interior to immediately “expel” the suspect, supposedly because “dangerous,” flying him to Libya on an Italian State plane (which was reportedly already waiting for Elmasry in Turin before the Court’s decision was issued) is all but transparent. The doubts are reinforced by the fact that, as denounced by the Court, Italian authorities not only failed to raise the any problem they were facing with the ICC Registry, as they should in these cases, but did not even return the ICC’s distressed calls.
Politics Over Justice?
The whole incident is unfortunate as it raises the suspicion that Italy might have prioritized other interests over those of justice. This is doubly so considering the strong relationship of (various) Italian governments with the Libyan authorities. The links of the suspect with the Libyan State are clearly confirmed by the Court in its decision (see paras. 7 and 8). Such problematic ties, which have been critically analyzed, both from the political and legal angles, imply possible responsibilities for the Italian authorities. They are also the object of some Article 15 communications brought to the ICC by human rights organizations, such as the European Center for Constitutional and Human Rights in Berlin, and by other lawyers.
It is beyond the scope of this article to deepen such aspects, which surely deserve full attention. It suffices to note here that, although not explicitly mentioned in the warrant of arrest, the language of the decision reveals that migrants and refugees (beside political opponents and civilians taking direct part in the hostilities) are among the victims of the crimes linked to Elmasry in the case before the ICC. This was also confirmed directly by some of the survivors of these crimes. With regard to the crime of persecution, for instance, it is argued that “the deprivation of fundamental rights was conducted on a number of discriminatory grounds, which sometimes intersected: […] detainees were targeted based on national, racial and/or ethnic grounds; and ‘some detainees’ were targeted on religious, political, and/or gender grounds.” (Para. 86 of the decision). These crimes, extensively documented also by the U.N.’s Independent Fact Finding Mission on Libya, were systematically committed by the Special Deterrence Forces (known as “Rada’a”), a unit within the military police formed during the 2011 civil war and one of the largest militias in control of the country. As director of the Mitiga detention center, and a member of Rada’a, Emasry was directly involved in the commission of the alleged crimes.
While waiting for full light to be shed on the affair, it can be noted that this case places Italy, one of the funding members of the International Criminal Court, which played a decisive role in its establishment, in a difficult position vis-à-vis the Court and the other 125 States parties. Other States in Europe, in similar situations, acted differently, as for instance, Belgium, in the case of the 2008 arrest of J.P. Bemba Gombo, or France, in the 2018 arrest of Patrice-Edouard Ngaïssona. At a time in history when the ICC is under the most intense tensions and violent attacks ever, starting with potential U.S. sanctions, newly sought by President Donald Trump, it is crucial that all State parties, and Europe unitedly, support the Court and its difficult work.