On 2 April 2026, the Preliminary Section I of the International Criminal Court (ICC), formed by Judges Iulia Motoc, President, Sophie Alapini-Gansou and Maria Flores Llera, made public the decision, adopted on 26 January 2026, by which it refers to the Assembly of States Parties of the ICC Italy's non-compliance with the obligation to cooperate with the ICC. The publication of the ruling took place after the Italian State had requested a postponement and following a meeting with a representative of the Italian government on 1 April 2026. From this meeting, it emerged that no new facts required a modification to the previously adopted measure. The issue will therefore be addressed at the 26th session of the Assembly of States Parties, scheduled to be held from 7 to 17 December 2026.

The decision of October 2025 and Italy's request for postponement

The decision refers to the failure to arrest and surrender to the ICC a Libyan citizen, Osama Almasry, or Emasri, also known as Almasri Njeem, accused of crimes against humanity for managing migrant detention camps. Almasri was in Italy in January 2025, but, instead of proceeding as requested by the ICC, the Italian authorities returned him to Libya with a military flight. On 17 October 2025, the judges had already ascertained that Italy had contravened Article 87.7 of the ICC Statute, but had granted Italy a deadline to submit further information on the domestic measures taken to investigate responsibility for non-compliance. On 31 October 2025, the Italian Government transmitted an update. 

The Italian response reported that the case had aroused a lively debate in the country on the roles of the Government, Parliament and the judiciary; that it was the first application of Law 237/2012 on judicial cooperation with the ICC, on the content of which a question of constitutional legitimacy was also raised (as the law does not provide for the Attorney General of the Republic to confirm the arrest warrant forwarded by the ICC). The State recalled that on January 27, 2025, the Rome prosecutor's office initiated criminal proceedings against the President of the Council of Ministers, the Ministers of Justice and the Interior and an Undersecretary of State to the Presidency of the Council, and that on August 1, 2025, the competent court with jurisdiction on acting members of the executive, while it rejected the appeal against the President of the Council, asked Parliament for authorization to proceed against the other defendants. On 9 October 2025, the Chamber of Deputies rejected the authorisation, stating that the accused had acted to safeguard national security. Against this decision, it would still be possible to file a procedure before the Constitutional Court on the attribution of powers. However, no such procedure has been initiated. A further criminal proceeding has been instituted against a senior official of the Ministry of Justice (who recently resigned from office), the outcome of which, however, cannot be predicted. In its communication, the Italian Government reiterated that the failure to hand over Almasri to the ICC was due to the need to respect "the framework of national security interests as well as [the] Nation's geopolitical position and constitutional and domestic legislation". Nevertheless, Italy reiterated its intention to cooperate positively with the ICC. On 11 November 2025, the Prosecutor of the ICC presented further considerations and recalled, in particular, that according to the same documentation produced by Italy, one of the reasons that had led to the non-immediate execution of the surrender of Almasri to the ICC, namely the simultaneous receipt of an extradition request by Libya, must be rejected, since this request was notified to the Ministry of Justice on 22 January 2025, that is, the same day on which Almasri landed in Libya as a free person.

The 2026 ICC decision

In its latest decision, the Pre-Trial Chamber argued that the referral of a State to the Assembly of States Parties does not follow automatically a finding of non-compliance with an ICC order, but may be ordered at the discretion of the judges if they consider it to be a useful means of obtaining effective cooperation in pending or future cases. According to two out of three judges, the Italian response was not clear evidence of Italy's intention to cooperate fully in the future. Italy announced future amendments to Law 237/2012 on cooperation with the ICC, without, however, clarifying whether or not they will facilitate the execution of the measures ordered by the ICC. This makes the Italian case different from the one that, in 2017, had concerned South Africa. South Africa had not arrested then-Sudanese President El-Bashir, despite the ICC's arrest warrant; however, the South African government had subsequently withdrawn its appeal against the South African Supreme Court of Appeal's judgment recognising the State's conduct as unlawful. In this way, South Africa had clearly demonstrated its willingness, in the future, to cooperate fully with the ICC. The Italian position, on the other hand, appeared to the Pre-trial Chamber still veined with ambiguity, also in keeping mentioning, more than a year after the dispute, to persistent obstacles deriving from domestic legislation. Indeed, it is a consolidated principle under international law that a State cannot invoke domestic or constitutional legislation to evade its international obligations. This rule is strongly underlined in art. 88 of the ICC Statute. The Italian Government has also failed to enter into consultation with the ICC, as provided for in Article 97 of the ICC Statute, to clarify any doubtful aspects of the arrest warrant. In conclusion, the Preliminary Section reiterates, with two votes in favour against one, that Italy has not complied with the obligations of the ICC and that its non-compliance should be referred to the Assembly of States Parties at the forthcoming 25th session, from 7 to 17 December 2026.

Judge Motoc criticised the decision, noting that, first, any referral should have been made to the UN Security Council rather than the Assembly of States Parties, since the Security Council had referred the Libyan situation to the ICC. Moreover, according to the Chair of Pre-Trial Chamber I, Italy should not be referred to the Assembly or the Security Council before there are still ongoing judicial proceedings on the matter (constitutionality application and a criminal trial), over which the Italian government cannot exercise any control. The comparison with the South African case does not account for the profound differences between common law and civil law systems. Furthermore, although the arguments put forward by the State present some contradictions, according to Judge Motoc, the liability regime created by art. 87.7 of the ICC Statute must be contextualised within the more general rules of international law relating to the responsibility of States for wrongful acts; this requires a more articulated consideration of the reasons of national security and state of necessity invoked by Italy.

Judge Flores Llena also attached a concurring opinion in which, while supporting the majority's conclusions, she maintains that the Italian non-compliance case should have been submitted to the Assembly of States Parties in December 2025, since all the relevant elements to deliberate on the matter were already present last autumn.

What the 26th session of the Assembly of States Parties can do in December 2026

Article 112.2.f of the ICC Statute provides that "[The Assembly] Consider pursuant to article 87, paragraphs 5 and 7, any question relating to non-cooperation". Annex II to the ICC Rules of Procedure governs the procedure. The procedure involves, among other diplomatic steps, sending public letters to the defaulting State to encourage it to resume cooperation, holding public sessions to discuss the case, and adopting a report on the matter for examination in subsequent sessions.

The Assembly has been vested with the power to make various decisions regarding non-compliance with Article 87 of the ICC Statute. In 2025, the issue of the Hungarian authorities' failure to arrest Israeli Prime Minister Netanyahu during his visit to Hungary between 3 and 6 April 2025 was raised. A non-compliance procedure was submitted to the States Parties regarding Mongolia for failing to arrest Russian President Putin during his brief visit to Mongolia on 2-3 September 2024. In any of these cases of non-compliance with an arrest warrant, the Assembly of States Parties has so far taken formal action. On the other hand, the Almasri question, although not on the agenda, was raised in the meeting specifically dedicated to the issue of non-cooperation within the 24th session of the Assembly, on 3 December 2025, in particular by the representative of Lawyer for Justice in Libya, the European Centre for Constitutional and Human Rights, as well as other NGOs (the video of the session is available at this link).