The Elmasry (or Almasri or Njeem) affair, as previously discussed in the Yearbook, proceeds. Following the International Criminal Court’s (ICC, Pre-Trial Chamber I) invitation, dated 17 February 2025, to Italy to provide explanations regarding the failure to surrender the Libyan citizen subject to an arrest warrant for war crimes and crimes against humanity, the Italian government twice requested an extension of the time limit for submitting its response. The latter was finally issued on 30 April and sent to the ICC Registry on 6 May. 

The main arguments put forward by the Italian government in support of its action are listed and briefly commented on below:

• The Court of Appeal of Rome correctly detected procedural violations

The case was brought before the Court of Appeal of Rome as the judicial body competent in matters of cooperation with the ICC and, specifically, of the validation of Elmasry’s arrest. In its ruling, the Italian court, adopting a restrictive reading of the law on cooperation with the ICC (law no. 237/2012), excluded the provision of proprio motu emergency arrest by the judicial police in the surrender procedure of a suspect in execution of an arrest warrant of the ICC, imposing the necessary prior dialogue with the Minister of Justice. Therefore, the judicial authority affirmed the existence of a procedural error in the arrest of Elmasry by the police on the basis of the Interpol red notice, and pronounced his release.

The Italian Government emphasises that it has no power to intervene in the contents of the decision, but only to acknowledge it.

As already noted, the interpretation adopted by the Court of Appeal is not exempt from criticism. Concerns about the incompleteness of the legislation had already been raised at the time of the adoption of law no. 237/2012 and, on the occasion of the ruling in question (the first concerning the application of this law), it was highlighted how the special legislation refers to the ordinary one in matters of extradition insofar as not otherwise provided for (art. 3). Therefore, in this case, one can argue for the application of the ordinary code of procedure where it regulates arrest in cases of urgency by the judicial police (art. 716 of the Code of Criminal Procedure – c.p.p.), thus avoiding a procedural blockade which is paradoxical considering the seriousness of the crimes under examination. Moreover, in the face of the government’s supposedly obligatory passive position, it can be contested how the Minister of Justice could instead have proceeded to the timely transmission of the request for arrest received from the ICC to the Attorney General, thus allowing the latter to execute it (as provided for by art. 4 of law no. 237/2012). In fact, it emerges from the files that the Attorney General’s Office did not receive this request as required, a fact which contributed to his application for release.

• (a) The competing request for extradition made by the Libyan authorities for the same facts

Having received, on 18 January 2025, the request for the arrest and surrender of Elmasry by the ICC and, on 20 January (following the arrest), the request for the extradition of the suspect by the Libyan authorities, the Minister of Justice found himself in the position of establishing their order of precedence (art. 2.2 law no. 237/2012; art. 90, 93 Rome Statute). The Libyan extradition request claimed the violation of the principle of complementarity by the ICC, asserting the existence at the national level of an ongoing investigation against Elmasry for the same facts for the crimes of torture, enforced disappearance and discrimination. Assuming that this context raises doubts as to the admissibility of the case before the ICC - a circumstance considered by the Statute to exonerate the need to give priority to the request to the Court - the Italian Government states how this has contributed to the assessment made as to the priority to be given to the requests received. In addition, the governmental authority states that the national legislation ‘requires assessing whether the offended individuals include an Italian citizen, the Italian Court having jurisdiction in such case’ (art. 10.1-bis c.p.p.).

(b) Discrepancies in the documents supporting the request for cooperation submitted by the ICC

The Government asserts the existence of inconsistencies regarding the time frame of the crimes attributed to Elmasry, i.e. between what is indicated in the arrest warrant (from 2011 onwards) and what was presented by the Prosecutor of the ICC in the request for the issuance of that warrant (from 2015 onwards). Moreover, the Italian authorities complain about the initial absence of the annex consisting of the dissenting opinion of Judge Socorro Flores Liera. This led to a correction of the warrant by the Pre-Trial Chamber I in the following days.

The Italian Government claims that both the presence of competing requests and the complexity of the evaluations entrusted to the Minister of Justice created an incompatibility with the assumption of an immediate obligation to transmit the documents to the Attorney General.

Regarding the first point (a), it is necessary to recall that the principle of complementarity that governs relations between the ICC and the Member States prescribes the intervention of the former (and thus the admissibility of the case before it) provided that the State having jurisdiction ‘is unwilling or unable genuinely to carry out the investigation or prosecution’ (art. 17.1(a) Rome Statute). Several doubts arise as to the genuineness of the investigation reported by the Libyan authorities against Elmasry. Firstly, it emerges from the documents transmitted by the Libyan Attorney General’s Office that the investigation was initiated in 2016. Given the serious social dangerousness attributed to the subject by the Italian government - which, in fact, motivated the adoption of an immediate expulsion order - it appears significant that, after nine years of investigation, no measures have been issued against him. The fact that the suspect still holds the position of head of the Libyan judicial police, despite the serious charges pending, raises doubts as to the Libyan authorities’ actual willingness to pursue the case against him. (Moreover, it is relevant to mention that a few months after the incident, the fragile political balance in Libya has led to a split between the government in Tripoli and Elmasry. In fact, although the general was enthusiastically welcomed upon his repatriation to Libya, the escalation of clashes in May 2025 between the militias, and in particular between pro-presidential forces and the group of which Elmasry is one of the leaders - Special Deterrence Force, RADA - seems to have made the intentions to take legal action against him more concrete, both nationally and through his potential surrender to the ICC). It should also be recalled that handing over a suspect to the ICC does not deprive him of the right of defence and thus of the possibility of lodging before it an application for inadmissibility of the case on the basis of the ongoing proceedings at national level (art. 19.2 Statute). The latter forum appears, indeed, the most appropriate for a thorough and impartial assessment of the matter, without the need to undermine the progression of the case before the court in The Hague by removing the suspect from its jurisdiction. It should also be noted that the exhaustive assessment of the admissibility of the case before the Court is still awaited, and is therefore far from being precluded (as underlined by the Pre-Trial Chamber itself, paragraphs 12-13 of the arrest warrant). Lastly, on the subject of the Italian jurisdiction raised, the reference to article 10.1 bis of the Code of Criminal Procedure, which regulates the territorial competence over the case (indicating, in paragraph 1 bis, the hypothesis that the crime was committed abroad and to the detriment of an Italian citizen) does not appear clear. Italian courts have already ruled on serious offences committed abroad by foreign citizens against foreigners, and in particular on acts of torture committed in detention centres in Libya (art. 10 of the Criminal Code).

As to the second sub-argument (point b), it can be verified that the ICC corrected the reference to the date 2011, included in its conclusions, with 2015, and attached the dissenting opinion. It is therefore acknowledged that the warrant initially transmitted was inaccurate and that this may have caused confusion in reading. Nevertheless, the gravity of the crimes under examination should have motivated the Italian authority to consult the ICC for clarification, thereby avoiding frustrating the course of the proceedings. In fact, given that the existence of the ICC’s investigation was publicly disclosed with the arrest, the Italian government’s failure to consult with the Court and the consequent release of the suspect actually undermined the future chances of arrest, even once the drafting error had been corrected.

For the sake of clarity, it is possible to illustrate the relationship between the different dates indicated in the arrest warrant as well as the content of the dissenting opinion. The reference to the year 2011 is explained by Resolution 1970 adopted by the UN Security Council in that year and which activated the jurisdiction of the ICC over the Libyan situation. As already expressed on the occasion of the previous arrest warrants issued in relation to the Libya investigation, Judge Socorro Flores Liera of Pre-Trial Chamber I, through her dissenting opinion - which is a minority compared to the majority of the panel of judges that led to the adoption of the warrant - stated her opposition to the issuance of the warrant against Elmasry, arguing that the crimes of which the suspect is accused (dating from the period between February 2015 and October 2024) are not sufficiently linked to the conflict that erupted in 2011, which, under Resolution 1970, grounds the Court’s jurisdiction. On the other hand, the Pre-Trial Chamber I has already in the past affirmed the existence of a sufficient connection between the situation covered by Resolution 1970 and acts committed in subsequent years (specifically, between 2016 and 2017) by virtue of the involvement of persons already active in the conflict since 2011 (Al-Werfalli case). Consequently, the temporal discrepancy between the facts that are the object of the indictment against Elmasry and those founding the jurisdiction of the ICC is not as such a factor necessarily excluding the jurisdiction of the international Court.

Finally, it should be pointed out that the legislation on cooperation with the ICC (law no. 237/2012) does not invest the Minister of Justice with any discretionary power as regards the transmission of the acts to the Attorney General (art. 4.1: ‘The Minister of Justice shall give effect to the requests made by the International Criminal Court, transmitting them to the Attorney General at the Court of Appeal in Rome for execution [...]’). Therefore, the assessment made by the Minister in this sense (allegedly ‘entrusted to’ him) appears unjustified.

• Legitimacy of the expulsion decree issued by the Italian Minister of the Interior

In order to refute the criticism of having obstructed the work of the ICC by repatriating a wanted person, the government focuses on the reason for the expulsion, namely the protection of public order and national security. It is emphasised that the subject’s social dangerousness was evidenced by what was found in his hotel room at the time of his arrest, i.e. a large sum of cash and a rifle optic, as well as by the seriousness of the charges in the arrest warrant. This reportedly motivated the urgency and necessity of the measure. The Government refers to national case law (Regional Administrative Court and Council of State) which affirms that the Minister of the Interior has the power to issue an expulsion order, that he enjoys administrative discretion and that he can adopt it on grounds of mere suspicion if motivated by the protection of national security. European legislation (Council Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents) is also cited in support of this choice.

Regardless of the legitimacy of the measure issued by the Viminale, what raises questions is the short-sightedness shown by the authority in exercising administrative discretion. The expulsion, in fact, meant that the suspect of war crimes and crimes against humanity (among others, torture, sexual violence, rape, murder and persecution) was sent back to the very territory where the alleged crimes were committed, namely the place where his social dangerousness is highest.

• The action undertaken by the Italian government has always been respectful of the law 

The government reported that Elmasry’s release is attributable to the procedural errors identified by the Court of Appeal, which could not be remedied immediately by virtue of the problems arising from the formulation of the arrest warrant by the ICC and the presence of a competing extradition request issued by the Libyan authorities for the same facts. It was argued that once the release order had been issued, the expulsion decree was the swiftest course of action to be taken in the interest of national security.

In its assessments, the Italian government did not take into account its international obligations other than the cooperation with the court in The Hague. Italy is, in fact, a party to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This convention prescribes the obligation to hand over to the prosecuting authority a suspect for such crimes who is found on its territory or alternatively prosecute him for such crimes (aut dedere aut judicare, art. 7.1 CAT). Considering that Elmasry is accused by the ICC of committing (among others) acts of torture, and in light of the concerns raised by the ongoing investigation in Libya (the verification of which, as mentioned, may nevertheless find its way into the proceedings before the ICC), this convention provides a further legal basis for validating Elmasry’s arrest and handing him over to the ICC.

Finally, the government admits that it did not consult the ICC during the events and attributes this failure to the particularity of the circumstances. It asserts that it nevertheless acted in full compliance with national legislation, in particular law no. 237/2012 (applied for the first time on this occasion); the decision issued by the Court of Appeal of Rome; the competing request for extradition; and the safeguard of national security interests, the determination of which is the sole responsibility of the governmental authority. The Government reaffirms its full respect of the Rome Statute, ‘with due regard to balancing of security interests linked to the State and its citizens’. On the basis of the above, the Government therefore requests the ICC to:

1. Establish that Italy has not failed to fulfil its own obligation to cooperate, having instead had to safeguard its national security interests;
2. Consequently, refrain from referring the matter to the Assembly of States Parties or the Security Council (as provided by art. 87.7 of the Statute).

The procedure whereby the government has to justify itself before the ICC was initiated by the Pre-Trial Chamber I, which found that Italy’s arrest and subsequent release of Elmasry, as well as his transfer to Libya, ‘warrants a determination on the part of the Chamber of whether it is appropriate to make a formal finding of non-compliance’ under Article 87.7 of the Rome Statute, and invited Italy to provide submissions under Rule 109 of the Rules of Court. Subsequently, the ICC Prosecutor requested the Pre-Trial Chamber I to declare Italy’s non-compliance and to transmit the documents to the Assembly of States Parties and/or the UN Security Council.

As much as the critical aspects of the arguments put forward by the Italian government have here been pointed out, it is now awaited the Hague court’s assessment of the merits of the submissions made by both parties and the decision as to whether to refer the matter to the aforementioned bodies.

The government’s actions also led a victim of the atrocities committed in Libya - already heard in the course of the ICC’s investigation into the Situation - to lodge a complaint in The Hague against Prime Minister Giorgia Meloni, Minister of Justice Carlo Nordio and Minister of the Interior Matteo Piantedosi alleging obstruction of the administration of justice under Article 70 of the Rome Statute.

Finally, it is worth recalling that the affair exposes the Italian authorities also on the domestic front, as the Rome Public Prosecutor’s Office has opened a file against Meloni, Piantedosi, Nordio and the undersecretary to the Presidency of the Council, Alfredo Mantovano, for the offences of embezzlement and aiding and abetting (articles 314 and 378 of the Criminal Code). A victim of the offences attributed to Elmasry also filed a second complaint against the same authorities, accusing them of the crime of aiding and abetting (art. 378 of the Criminal Code).