International Criminal Court

International Criminal Court: the Prosecutor maintains that Italy is to be referred to the Assembly of States Parties and/or the Security Council for not complying with the Court's order to arrest Osama El Masri Njeem

Nazhat Shameen Khan, vice-Prosecutor of the ICC
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Table of Contents

  • Introduction
  • Background
  • The Prosecutor's observations
  • Conclusion

 

Introduction

On 26 June 2025, the Deputy Prosecutor of the International Criminal Court (ICC), Nazhat Shameem Khan, presented the Office of the Prosecutor's (OTP) response to the Italian government's submission providing an account of the failure to arrest Osama Elmasry Njeem (also known as Almasri), dated 30 April 2025 (see a critical comment here). The OTP confirms its intention to request Italy's referral to the ICC Assembly of States Parties and/or the United Nations Security Council pursuant to Article 87.7 of the ICC Statute, for failing to comply with its obligation to cooperate with the ICC as set out in Article 90 of the same Statute, by not arresting Almasri/Njeem and instead handing him over as a free person to Libyan authorities. 

El Masri/Njeem was subject to an ICC arrest warrant for war crimes and crimes against humanity, including murder, torture, sexual violence, cruel and inhuman treatment, persecution and arbitrary detention, committed from 15 February 2015 onwards in the management of Mitiga prison in Tripoli. The ICC is investigating the conduct of various Libyan authorities implicated in human trafficking within the situation referred to its jurisdiction by the Security Council in Resolution 1970(2011). It is significant to note that on 12 May 2025, the Libyan government accepted the ICC's jurisdiction over its territory from 2011 until the end of 2027.

Background
On 18 January 2025, Pre-Trial Chamber I of the ICC issued, by majority, an arrest warrant for Almasri. Concurrent with the issuance of the warrant, the Court Registry, in coordination with the OTP, sent formal execution requests to six States Parties to the Rome Statute, including Italy. The following day, 19 January 2025, Almasri was identified and arrested in Turin. However, as already highlighted in this Yearbook, Almasri's arrest in Turin was not confirmed by the Court of Appeal of Rome, which is competent in the matter according to Law 237/2012 on judicial cooperation between Italy and the ICC. Accordingly, the Court ordered Almasri's release. Based on Article 13, paragraph 1, of Legislative Decree No. 286 of 25 July 1998 (Immigration Consolidated Act), which allows for administrative expulsion for reasons of public order and state security, Almasri was repatriated to Tripoli via a state flight.

The Prosecutor's observations
The Office of the Prosecutor first notes that, in its 30 April note, the Italian State informed for the first time (three months after the events) that one of the reasons that slowed down and thus made it impossible to execute the ICC arrest warrant was the notification by Libya of an extradition request for Almasri himself. The OTP responds that there is no evidence of any Libyan document containing such an extradition request (the Italian authorities themselves have not produced it) and that, in any case, not even the hypothetical Libyan request was executed by Italy, given that Almasri was repatriated as a free man.

The arguments put forward by Italy to justify its actions were as follows. Firstly, the police who had carried out Almasri's arrest in Turin had, according to the independent and indisputable assessment of the Rome Court of Appeal, incurred some procedural flaws that had led to the non-validation of the arrest and the release of the arrestee. Secondly, the Minister of Justice was unable to remedy the procedural flaws (as the Court of Appeal itself invited him to do), as a second arrest request had been received from Libya, requiring careful evaluation, and due to some irregularities allegedly present in the act received from the ICC. Finally, regardless of the ongoing procedure, the Minister of the Interior had independently decided to expel Almasri for reasons of national security urgently.

The OTP notes that the carefully described articulation of roles and responsibilities cannot obscure the fact that, in substance, Italy has executed neither the ICC arrest warrant nor the extradition requested by Libya. Interpretative disputes concerning national legislation, moreover, do not affect the state's responsibility for breaching an international obligation.

The OTP contests the interpretation given by the Rome Court of Appeal as well as by the Minister of Justice, according to which an ICC arrest warrant cannot be directly executed even without a request to that effect being issued by the Minister himself. Even if Law 237/2012 does not mention it, the rationale of the norm on state cooperation requires that the police of any ICC State Party can arrest a suspect without necessarily waiting for input, as otherwise any arrest order would be left to the discretionary assessment of the State. In any case, the Italian Minister of Justice could have intervened in time to prevent the release of the arrestee. The reasons given to justify the lack of intervention do not appear convincing, also because any doubts could have been resolved by contacting the ICC registry, which, however, was not consulted.

Regarding the concurrent extradition request received from Libya, the OTP believes that Italy has not correctly applied Article 90 of the ICC Statute. In addition to not notifying the ICC of the extradition request, the Italian government behaved as if it were its task to decide which request should have priority, whether that of the ICC (which the OTP does not doubt) or that of the Libyan State. Now, the principle of complementarity theoretically gives priority to the jurisdiction of the State over that of the ICC, if the charges coincide and the State's judicial initiative is "genuine". The priority of state jurisdiction, which makes the case before the ICC inadmissible, must, however, be examined by the ICC, not by the State requested to arrest the suspect. Moreover, neither the Italian nor the Libyan authorities had the tools to assess whether the facts imputed to Almasri by the ICC coincided with those for which Libya issued the alleged extradition request, given that the charges were made public by the ICC only on 24 January, when Almasri had already returned to Libya. As for the inconsistencies that the Italian government claims to have found in the arrest warrant, according to the OTP, except for a typo that had swapped the year 2011 with 2014, the information provided was clear, and any doubts could have been clarified with the ICC.

Finally, the OTP contests the arguments used by Italy to justify Almasri's expulsion to Libya. Several factors raise doubts about whether the national security reasons cited by the State are sufficient to legitimise the government's actions under the ICC Statute. Almasri was not extradited, but returned free, on an aircraft provided by the Italian State, to Libyan territory, where he was welcomed festively by his followers; it also seems established that the repatriation operation started before the Court of Appeal ordered the release of the accused and before the Minister of the Interior issued the expulsion order.

The OTP therefore confirms that, in its opinion, Italy has not cooperated with the ICC and has obstructed it in the exercise of its functions and powers. It thus asks the three judges of the ICC Pre-Trial Chamber to refer Italy to the Assembly of States Parties and/or the Security Council for violation of Article 87.7 of the ICC Statute.

Conclusion

The Preliminary Chamber I of the ICC will address the issue and decide on the referral of the state party and/or to the Security Council in the following months. The Conference or the Security Council may take measures to stigmatise the conduct of the state. Considering the delicate situation in which the ICC is currently operating, the outcome of this controversy may be very relevant for the future of the ICC. 

Yearbook

2025

Keywords

International Criminal Court genocide, crimes against humanity Libya war crimes

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