On 21 February 2025, the Prosecutor of the International Criminal Court (ICC), Karim Khan, requested the Pre-Trial Chamber of the Court to issue a formal finding of non-compliance by Italy with its duty to cooperate with the ICC, in relation to the failure to arrest the wanted Osama Elmasri (or Almasri) Njeem, a high-ranking Libyan official accused of war crimes and crimes against humanity. Such a decision could imply referring the state to the Assembly of States Parties to the ICC or to the United Nations Security Council, which would then have to potentially take censure measures against Italy.

Almasri's Arrest Warrant and its contentious execution in Italy

Article 87.7 of the Rome Statute establishing the ICC states that ‘[w]here a State Party fails to comply with a request to cooperate by the Court contrary to the provisions of this Statute, thereby preventing the Court from exercising its functions and powers under this Statute, the Court may make a finding to that effect and refer the matter to the Assembly of States Parties or, where the Security Council referred the matter to the Court, to the Security Council.’

In his request, the Prosecutor points out a series of facts from which it can be inferred that the Italian authorities failed to cooperate with the ICC in the arrest of Almasri.

Firstly, the document recalls that the request to arrest Almasri was submitted to the ICC judges (Pre-Trial Chamber I, Presiding Judge Julia Motoc) on 2 October 2024 and updated on 9 October. The request was not made public so as not to advantage the suspect. With it, authorization was requested for the search and seizure of the Libyan citizen as well as for the ‘identification, tracing and freezing or seizure of his property and assets’. The arrest warrant, together with an order for ‘search and seizure of any evidence or device that may contain evidence and its transmission to the Court (“Search and Seizure Order”)’ regarding, for example, mobile phones, computers or similar items held by the suspect, was issued by the Pre-Trial Chamber on 18 January 2025. On the same day, the Registry of the ICC sent two emails to the Italian government, one to the official formally responsible for managing communications between the state and the ICC, namely the Italian Embassy in The Hague. The notifified document in one of the official languages of the ICC (English and French) also included texts in Arabic to be communicated to the person to be arrested. Almasri's arrest was carried out, as is known, in Turin, on 19 January.

Release and Expulsion to Libya

In its submission to the ICC Pre-Trial Chamber the Prosecutor recalls a series of contacts that took place between the ICC and the Italian authorities between 19 and 21 January, whose details, however, are redacted in the publicly available text, since there is an ongoing dispute with the Italian government on this point. The Prosecutor mentions the press release issued by the Ministry of Justice at 16:04 on 21 January, according to which the Ministry was considering transmitting the arrest warrant to the Public Prosecutor's Office in Rome (as required by Law 327/2012 on cooperation between the Italian state and the ICC). The ICC Prosecutor notes however that, according to the information provided on the X platform by journalist Sergio Scandura, the state flight that would have taken Almasri from Turin to Tripoli had already departed that same day from Rome Ciampino airport at 11:14. In the meantime, at the request of Almasri's lawyer, the Rome Court of Appeal ordered Almasri's release, since the arrest had been carried out without the ‘mediation’ (interlocuzione) between the Minister of Justice and the Public Prosecutor's Office at the Court of Appeal of Rome, as allegedly required by Law 237/2012. Since no other activity had been carried out by the Ministry to execute the international arrest warrant, despite the solicitation to do so made by the Court itself on 20 January, that is, immediately after being informed by the Turin Police Headquarters of the arrest of the suspect, the Court ordered Almasri's release. In the evening of the same day, shortly after 9 pm, Almasri disembarked from the Italian Air Force's Falcon900 at Tripoli airport. His immediate expulsion from Italy had in fact been ordered on the basis of Article 13.1 of the Consolidated Immigration Act. This provision states that ‘[f]or reasons of public order or national security, the Minister of the Interior may order the expulsion of a foreigner even if not resident in the territory of the State, giving prior notice to the President of the Council of Ministers and the Minister of Foreign Affairs.’

Since the arrest warrant communicated to the Italian authorities on 18 January contained some errors, a new version was issued by Pre-Trial Chamber I of the ICC on 24 January and immediately made public. On 17 January, the Chamber, noticing that the matter could constitute a failure of cooperation between Italy and the ICC as provided for in Article 87.7 of the Rome Statute, invited the Italian state to provide its observation, as provided for in Article 109 of the ICC Rules of Procedure, setting a deadline of thirty days.

Italy's Failure to Comply with the Obligation to Cooperate with the ICC

After reconstructing the facts in these terms, the Prosecutor asks the three judges of the Pre-Trial Chamber to refer the Italian case to the Assembly of States Parties to the ICC Convention and/or to the Security Council, considering that the Italian government has failed to comply with its obligation to cooperate with the ICC and, in doing so, has prevented the ICC from exercising its functions and powers. Italy indeed ratified the Rome Statute in 1999 and is therefore required to observe the obligations of cooperation with the ICC established, among others, by Article 87. The possible role of the UN Security Council is linked to the fact that the ICC's investigations into international crimes committed in Libya, including those for which Almasri is wanted, are related to the situation referred to the ICC's jurisdiction by the Security Council with Resolution 1970/2011.

On the first argument, namely that there has been no adequate implementation of the obligation to cooperate, the Prosecutor notes that the transmission of the arrest warrant to the Italian authorities took place, in accordance with the pertinent procedures, on 18 January. If, as stated by the Italian Ministry of Justice, the information only reached the Minister on 20 January, this may have been due to some lack of coordination, but it certainly cannot exclude a violation of the international norm. The Prosecutor does not comment on whether the decision of the Rome Court of Appeal not to uphold Almasri's arrest by the Turin police was correct or not (although he cites the opinions of numerous scholars who disagree with the interpretation of Law 237/2012 given by the Italian court), but he emphasizes that in the hours and days following Almasri's (deemed unlawful) arrest, there would have been the possibility to implement Article 4 of Law 237/2012, according to which ‘[t]he Minister of Justice shall give effect to requests made by the International Criminal Court, transmitting them to the Prosecutor General at the Court of Appeal of Rome for execution.’ However, no transmission of documents took place from the Ministry to the Prosecutor General's Office at the Rome Court of Appeal.

The Prosecutor also recalls some passages from the statements made by the Minister of Justice in his hearing before the Italian Parliament on 5 February, in which reference is made to some ‘perplexities’ relating to the contents of the arrest warrant received on 18 January (but examined only on 20 January). Doubts concerned the failure to precisely indicate the moment when the crimes imputed to Almasri were allegedly committed and echoed the arguments of Judge María del Socorro Flores Liera, who had voted against the issuance of the arrest warrant itself. Although considering the doubts raised by the Minister to be irrelevant, the Prosecutor notes that in various occasions between 20 and 21 January the ICC contacted the Italian authorities (the contacts are duly reported but redacted in the published version of the document, as noticed above); however, the latter neither raised nor sought to resolve through consultations the problems subsequently highlighted, despite the fact that Article 97 of the Rome Statute expressly provides that ‘[w]here a State Party receives a request under this Part in relation to which it identifies problems which may impede or prevent the execution of the request, that State shall consult with the Court without delay in order to resolve the matter.’

Finally, the Prosecutor stigmatizes the Italian government's choice to immediately repatriate the wanted person, justified by the extreme dangerousness of the individual. The expulsion was carried out, once again, without any consultation with the ICC. If, as the Minister of the Interior stated during the parliamentary hearing on 5 February, ‘The preparation of the [aircraft that would have repatriated Almasri in the evening of the same day] in the morning of 21 January falls within [the] risk preventive measures, and therefore open to any scenario’ that a State must take when dealing with exceptional situations, the ICC Prosecutor wonders why, among the actions ‘open to any scenario’, the option of consulting with the ICC was not considered.

A Serious Impediment to the Exercise of the ICC's Functions and Powers

As for the second condition required by Article 87.7 of the Rome Statute, namely that the failure to cooperate by the state has resulted in a serious obstacle to the ICC's action, the Prosecutor observes that Almasri's repatriation to Libya has made his arrest very difficult, given the network of protection he enjoys at all levels in his home country. It should also be noted that, in addition to not arresting the suspect, the Italian authorities did not even adopt the prescribed measures of personal search and seizure of devices available to the accused (as had happened in the Abedini case, the Iranian citizen arrested on an American warrant and repatriated, as a means to obtain the release of the Italian journalist Cecilia Sala). The possibility of acquiring evidence that could have been used in other cases relating to the Libyan situation was therefore also lost. In addition to making Almasri's arrest highly unlikely, his return to his home country puts at risk the safety and lives of those who in the past months and years have collaborated in gathering information on the crimes he is accused of: witnesses and victims of the murders and torture committed from 2015 onwards in the Mitiga prison, including members of their families.

On other issues raised on various occasions by members of the Italian government, the Prosecutor reserves the right to argue elsewhere. This applies in particular to the claim by the Italian Minister of Justice to subject the contents of the arrest warrant to his own substantive assessment; to the statement that the execution of the arrest warrant required a ‘mediation’ activity between the Minister himself and the Italian judicial authority for its execution; as well as the statement, again by the Minister of Justice, that the second version of the arrest warrant was substantially different from that of 18 January (a circumstance strongly denied: the version of 24 January just corrected some material errors in the previous one and provided the full text of the dissenting opinion of Judge Flores Llera, whose arguments moreover hypothesized a possible defect in the ICC's jurisdiction regarding all arrest warrants issued from October 2024 in the framework of the Libyan situation investigations: no specific reference was made to the merits of the charges brought against Almasri).

Encouraging Italy to Respect Its Obligations towards the ICC

In conclusion, the Prosecutor believes that the Court should refer Italy to the Assembly of States Parties or the Security Council not only because of the seriousness of the repeated refusals to cooperate with the ICC – and the consequences of such conduct for the prosecution and for the survivors and witnesses who have contributed to the investigations, but also because of the ‘apparent political nature of Italy's decision to release and transfer [Almasri] to Libya.’ In fact, the Prosecutor emphasizes that Italy's failure to cooperate involved the highest levels of government (in particular the Ministers of Justice, Interior and Foreign Affairs), as well as staff of these administrations at various hierarchical levels. Moreover, ‘Italy failed to provide key information – or provided erroneous information – to the Court along the process in what appeared to be a concerted effort to ensure [Almasri] quick release and transfer to Libya’. After the wanted person's repatriation, Italy did not acknowledge its non-compliance and even attempted to shift responsibility for the failure to arrest onto the ICC. Referral to the Assembly of States Parties or the Security Council is considered the most appropriate instrument to ‘encourage Italy’s compliance with its international obligations towards the Court in the future’.