Introduction

On 17 October 2025, Pre-Trial Chamber I of the International Criminal Court (ICC) issued a public decision regarding the situation in Libya, finding non-compliance by the Italian Republic under article 87(7) of the Rome Statute. The decision concerned Italy’s failure to surrender Osama Elmasry, also known as Almasri Njeem, to the Court after his arrest in Torino (Italian territory) in January 2025.

The Chamber concluded that Italy’s conduct prevented the Court from exercising its functions and powers, in particular its ability to secure the presence of a suspect alleged to have committed crimes against humanity and war crimes. While the Chamber unanimously found that Italy failed to comply with its obligations under the Statute, the majority deferred a decision on whether to refer the matter to the Assembly of States Parties or the United Nations Security Council, pending further information on relevant domestic proceedings in Italy.

This article examines the decision strictly on the basis of the Court’s findings and reasoning. It reconstructs the factual timeline, outlines the applicable legal framework, analyses Italy’s explanations and the Court’s assessment of those arguments and reviews the consequences of the finding of non-compliance and the steps identified by the Chamber.

Timeline of events

The events leading to the finding of non-compliance unfolded over several months, beginning with prosecutorial action in late 2024. 
On 2 October 2024, in the context of the situation in the Libyan Arab Jamahiriya since 15 February 2011, the Office of the Prosecutor applied under seal and on a non-urgent basis for a warrant of arrest against Osama Elmasry/Almasri Njeem. 

On 17 January 2025, the Office of the Prosecutor (OtP) informed the Pre-Trial Chamber that it had become aware that Mr Njeem was present within the Schengen area, in a country other than Italy. The same day, the Chamber expedited its assessment under article 58 of the Rome Statute and, on 18 January 2025, issued, by majority, a warrant of arrest for Mr Njeem. 
Also on 18 January 2025, the Chamber instructed the Registrar, pursuant to article 57(3)(a) of the Statute, to send requests for cooperation under articles 93(1)(h) and 99(1) to any State where Mr Njeem was present or had recently been located. These requests included the seizure of any evidence or devices the suspect carried and their transmission to the Court.

Given the uncertainty surrounding Mr Njeem’s location at the time of issuance of the warrant, the Registrar sent urgent requests for provisional arrest under Article 92 of the Statute to six European States on 18 January 2025, including Italy. The request to Italy was transmitted through the formal channel designated by Italy for cooperation, which is the Italian embassy in The Hague.

On 19 January 2025, Italian authorities arrested Mr Njeem in Turin, and in the following days, the ICC Registry made several inquiries to the Italian Ministry of Justice, including regarding reports that a hearing on the arrest would take place before the Court of Appeal in Rome. The Ministry of Justice did not confirm when such a hearing would occur.

Between 19 and 21 January 2025, the Registry repeatedly raised the possibility of consultations under Article 97 of the Statute in its communications with Italy, including with the Ministry of Justice. 
On 21 January 2025, Italy released Mr Njeem and returned him to Libya. The Court was not informed in advance of this decision or of its execution. 

On 24 January 2025, the Registry submitted a report to the Chamber on the status of the execution of the requests for provisional arrest. On 27 January 2025, in response to a note verbale from the Registry, the Italian Ministry of Justice confirmed Mr Njeem’s release and return to Libya, stating that these matters did not fall within its competence and that responsibility for the return lay with the Minister of the Interior.

Further communications followed in February 2025. Specifically, on 12 February 2025, another note verbale from the Ministry of Justice was transmitted to the Chamber, and on 17 February 2025, recalling Regulation 109 of the Regulations of the Court, the Chamber invited Italy to provide submissions concerning its failure to surrender Mr Njeem following the issuance of an arrest warrant. 
On 25 February 2025, the Prosecution requested a finding of non-compliance under article 87(7) of the Statute and, after extensions of time, Italy submitted its observations in May 2025. The Prosecution filed observations in June 2025, and Italy submitted a limited reply in July 2025 following authorisation by the Chamber.

The proceedings culminated in the decision of 17 October 2025, in which the Chamber addressed Italy’s conduct and determined the legal consequences under the Statute.

Legal Framework

The Chamber’s analysis was grounded in the cooperation regime established by Part IX of the Rome Statute, as well as relevant provisions of the Regulations of the Court and prior jurisprudence.

Article 86 of the Rome Statute establishes the general obligation of States Parties to cooperate fully with the Court in its investigation and prosecution of crimes within its jurisdiction. Article 87(1)(a) affirms the Court’s authority to make requests to States Parties for cooperation, including requests for arrest and surrender under Article 89.

In addition, Article 87(7) provides the basis for a finding of non-compliance. It allows the Court, where a State Party fails to comply with a request to cooperate contrary to the provisions of the Statute, therefore preventing the Court from exercising its functions and powers, to make a finding to that effect and to refer the matter to the Assembly of States Parties or, where applicable, to the United Nations Security Council. The Chamber recalled the Appeals Chamber’s interpretation of Article 87(7), according to which two cumulative conditions must be met: first, the State must have failed to comply with a request to cooperate; second, the non-compliance must be grave enough to prevent the Court from exercising its functions and powers. Only if both conditions are satisfied may the Chamber consider referring the matter to external bodies.

Furthermore, article 97 of the Statute requires a State Party that identifies problems that may impede or prevent the execution of a cooperation request to consult with the Court without delay to resolve the matter.

The Chamber also relied on Article 90, which regulates situations involving competing requests for surrender or extradition, and Article 88, which obliges States Parties to ensure that national procedures are available to give effect to cooperation obligations.

Finally, Regulation 109 of the Regulations of the Court governs the procedure to be followed before a finding of non-compliance is made, including the requirement that the requested State be heard.

Italy’s arguments and the Court’s assessment

Italy advanced a series of arguments to explain or justify its failure to surrender Mr Njeem to the Court, and the Chamber examined these arguments in detail before rejecting them.

A central element of the Chamber’s assessment concerned Italy’s failure to consult with the Court. While Italy took immediate steps to arrest Mr Njeem, as required by Article 59(1) of the Statute, it subsequently released him and returned him to Libya without informing the Court, despite repeated attempts by the Registry to engage with the Italian authorities. The Chamber noted that Italy did not explain why it failed to communicate its concerns or any domestic legal obstacles prior to returning Mr Njeem.

The Chamber found that Italy violated Article 97 of the Statute by failing to consult with the Court upon identifying perceived obstacles to execution of the cooperation request. This failure was worsened by Italy's informing the Court of the return to Libya only after it had already occurred.

Italy also relied on purported obstacles under domestic law, arguing that the Court of Appeal of Rome found the arrest unlawful under Law No. 237/2012 and ordered Mr Njeem’s release. The Chamber recalled that Article 88 of the Statute places responsibility on States Parties to ensure that domestic procedures allow for cooperation, and that obstacles under national law cannot justify non-compliance with obligations under the Statute.

Italy further contended that the arrest warrant should have been transmitted directly to the Minister of Justice, but the Chamber rejected this argument, noting that Italy had designated the Italian embassy in The Hague as its formal channel for cooperation requests and that the Court had provided the warrant directly to the Ministry of Justice before the relevant hearing.

Another argument concerned an alleged competing extradition request from Libya. The Chamber observed that Italy neither notified the Court of such a request in a timely manner nor complied with the procedures set out in Article 90 of the Statute. Moreover, Italy did not extradite Mr Njeem in response to an extradition request but returned him to Libya as a free man. The Chamber concluded that Italy misrepresented the Statute’s complementarity system and violated its obligations under Articles 90 and 97.

Italy also pointed to alleged inconsistencies in the arrest warrant. The Chamber clarified that the warrant issued on 18 January 2025 was valid and that a corrigendum issued on 24 January 2025 corrected only minor typographical errors without affecting the substance or validity of the warrant. Mr Njeem's return to Libya on 21 January 2025 predated the corrigendum, rendering this argument irrelevant.

Finally, Italy invoked an expulsion order issued for reasons of public policy and national security, as well as a claimed state of necessity. The Chamber found these arguments unconvincing, noting in particular that Italy failed to explain why returning Mr Njeem to Libya was necessary and reiterating that domestic considerations cannot justify non-compliance with Statute obligations.

The finding of Non-Compliance and possible next steps

Based on its analysis, the Chamber unanimously found that Italy failed to act with due diligence and did not use all reasonable means to comply with the Court’s request for cooperation. By failing to surrender Mr Njeem and by not consulting with the Court, Italy prevented the Court from exercising its functions and powers, specifically the securing of the suspect’s presence before the Court.

Having established the conditions for a finding under article 87(7), the Chamber then considered whether Italy’s non-compliance should be referred to the Assembly of States Parties or the United Nations Security Council. The majority emphasised that such a referral is not automatic but discretionary, and recalled that referrals are intended to strengthen the Court’s cooperation regime by involving external actors only where this is likely to be the most effective way to secure cooperation.

In this case, the majority decided to defer a determination on referral. It considered relevant that the existence of domestic proceedings initiated in Italy could affect future cooperation, including proceedings before the Tribunal of Rome concerning senior Italian officials involved in the matter. The Chamber requested Italy to provide further information on any domestic proceedings relevant to the case and on their potential impact on Italy’s future cooperation with the Court by 31 October 2025.

Conclusion

The Decision of 17 October 2025 represents a clear and reasoned application of the Rome Statute’s cooperation regime. Pre-Trial Chamber I concluded that Italy’s actions in releasing and returning Osama Elmasry / Almasri Njeem to Libya, without consultation or surrender, constituted a failure to comply with its obligations under the Statute, and prevented the Court from exercising its core functions. At the same time, the Chamber exercised restraint in deferring a decision on referral to external bodies, emphasising the discretionary nature of such measures and the relevance of ongoing domestic proceedings.