Obstructing Justice? The ICC’s Libya Investigation, Italy’s Role, and the Release of Osama Elmasry Njeem

[Francesca Ceparano is a senior at John Cabot University in Rome, majoring in International Affairs with a minor in Legal Studies]

When Osama Elmasry Njeem, a high-level officer at Libya’s Mitiga Prison, was arrested in Italy on January 19, 2025, under an arrest warrant issued by the International Criminal Court, it raised hopes for accountability in international justice. But within 48 hours, that hope vanished as Italy returned him to Libya. How did an individual, allegedly responsible for war crimes and crimes against humanity slip, through the fingers of the very country that hosted the Court’s birthplace and ranks as its fifth largest contributor?

From Arrest to Release: The Short-lived Pursuit of Justice

On January 18, 2025, Pre-Trial Chamber I of the ICC issued an arrest warrant for Mr. Njeem and requested his provisional arrest under Article 92 of the Rome Statute, along with the execution of search and seizures measures under Article 93 (1) (h). The request was sent to six European States, including Italy, where Njeem was believed to be located. 

Acting upon the ICC’s requests, Italian Police agents arrested Mr. Njeem on January 19, 2025, at 9:30 a.m. in his hotel room in Turin. The Turin authorities later forwarded the arrest documents to the Office of the Attorney General of the Rome Court of Appeal. Following the arrest, the ICC Registry contacted the Italian Embassy to inquire whether there migh possibly be any obstacles or impediments to cooperation with the Court. None were communicated at that time. 

However, on the afternoon of January 21, 2025, Italian Minister of Justice, Carlo Nordio, raised the possibility of certain unidentified legal or procedural impediments. The Minister declared that he was examining the formal transmission of the ICC’s request to the General Prosecutor Office in Rome pursuant to Article 4 of Law N. 237/2012, which is designed to implement the provisions of the Rome Statute through the Italian legal system. He cited the complexity of the dossier as the reason for the delay. Ultimately, the Minister of Justice failed to transmit the ICC’s request to the Italian Court in a timely fashion. That day, following an application by Mr. Njeem’s Defense Lawyer, Asa Peronace, the Court of Appeal of Rome ordered Mr. Njeem’s release. 

In the evening of January 21, 2025, the Italian government released Mr. Njeem and returned him to Tripoli, Libya, on a State-owned Falcon 900 airplane. The operation was authorized by the Minister of Interior, Matteo Piantedosi, pursuant to Article 13 (1) of Law n.286/1998.

Italy under Scrutiny: ICC Seeks Clarity on Failed Surrender

The circumstances surrounding Mr. Njeem’s release have raised serious concerns about whether Italy acted in good faith to fulfill its obligations under Part IX of the Rome Statute, which governs cooperation with the ICC. In accordance with Regulation 109 of the Regulations of the Court, Pre-Trial Chamber I invited the Italian Republic to provide its submissions regarding its failure to surrender Mr. Njeem to the Court following his arrest. 

Behind the Release: Italy’s Justifications

On May 6, 2025, following two extensions granted by the Court, the Italian Republic presented its submissions. It argued that it had not failed to comply with in its obligations to cooperate with the ICC, but it conceded that no prior consultation with the Court had occurred during the events leading to Mr. Njeem’s release. Italy justified its actions on three grounds: (1) procedural violations in Mr. Njeem’s arrest, as identified by the Court of Appeal of Rome; (2) a competing extradition request from the Libya for Mr. Njeem for the same conduct underlying the ICC’s arrest warrant; and (3) the lawfulness of the expulsion decree issued by the Italian Minister of the Interior on grounds of national security.

Controversial Judicial Reading of Law N.237/2012 Undermines Mr. Njeem’s Arrest Procedures

Acting under Article 59 (2) (b) of the Rome Statute, the Court of Appeal of Rome inquired whether Mr. Njeem’s arrest complied with the procedures established by Law N. 237/2012. The Court identified a number of procedural irregularities, noting that the Judicial Police had arrested Mr. Njeem on their own initiative, despite lacking explicit authorization under the applicable law, and that the arrest had been conducted without the required involvement of the Minister of Justice. Under Law N.237/2012, a valid arrest would have required the involvement of the Minister of Justice who, as per Article 2(1), is the competent authority for receiving and processing cooperation requests from the ICC. The Minister of Justice was required to transmit the relevant documents to the General Prosecutor’s Office at the Court of Appeal of Rome as per Article 11 (1). This transmission would have enabled the General Prosecutor to request the application of precautionary measures under Article 22 (1), thereby ensuring Mr. Njeem’s lawful custody pending surrender to the ICC.

However, the Court of Appeal’s interpretation appears to be inconsistent with the ratio legis of Law N.237/2012, which is to ensure Italy’s cooperation with the ICC in compliance with its obligations under Part IX of the Rome Statute. Declaring Mr. Njeem’s arrest invalid due to the lack of an explicit provision authorizing arrests by the Judicial Police is judicially questionable, as such an absence does not necessarily render those arrests unlawful. Moreover, while the Court of Appeal correctly identified the absence of the Minister of Justice’s mediation in Mr. Njeem’s arrest, it failed to acknowledge that this absence was attributable to the Minister himself. Although the Minister of Justice received the ICC’s cooperation request in accordance with Article 2(1), he had failed to promptly transmit the request to the Office of the General Prosecutor as required by Article 2 (3), citing unspecified complexities that arose in the dossier. Crucially, the Minister had not engaged in any dialogue with the Court to communicate or clarify these difficulties. This omission, coupled with the fact that the Minister of Justice’s inaction ultimately served as a legal basis for declaring Mr. Njeem’s arrest irregular, this raises serious concerns about the adequacy and intent behind his conduct in this case.

Italy’s Handling of Competing Extradition Requests Between Libya and the ICC

Pursuant to Article 2 (2) of Law N.237/2012 and Article 90 of the Rome Statute, Italy’s Minister of Justice prioritized a competing extradition request from Libya – a State not Party to the Rome Statute – following receipt of a letter from the Libyan Attorney General’s Office that was addressed to the Prosecutor General at the Court of Appeal of Rome. The letter claimed Libyan jurisdiction over Mr. Njeem for the same charges brought against him by the ICC, despite the absence of any direct engagement between Libya and the Court to assert this claim. Italy invoked the principle of complementarity under the Rome Statute, which allows a case to be deemed inadmissible before the ICC if a State having jurisdiction upon it is actively investigating or prosecuting the same conduct according to Article 17 of the Rome Statute. Italian authorities argued that the ICC had failed to consult Libya to assess its ability and willingness to prosecute Mr. Njeem, violating the principle of complementarity and prompting the Minister of Justice to prioritize the Libyan request over that of the ICC.

While Italy correctly invokes the Minister of Justice’s duty to assess the priority order of competing requests for international cooperation under Article 2 (2) of Law N.237/2012 and Article 90 of the Rome Statute, it neglects key procedural obligations. Article 90 (1) requires a State Party receiving both an ICC surrender request and a competing extradition request from another State for the same individual and conduct for which the Court seeks the person’s surrender, to notify the Court and the requesting State. Italy failed to fulfill this obligation. Moreover, Italy’s assertion of a violation of the principle of complementarity on the part of the ICC is not supported by the Rome Statute, which imposes no legal obligation on the ICC to engage with non-State Parties to assess prosecutorial willingness or ability. Rather, it is the responsibility of Libya, under Article 18, to raise any admissibility challenges. However, Libya itself acknowledged that no such engagement with the ICC had occurred. Therefore, pursuant to Article 90 (4), Italy, as the requested State, was obliged to give priority to the ICC’s request, since no admissibility challenge to the case had been raised. 

Public Policy and National Security Claims Behind Mr. Njeem’s Expulsion

Italy justified Mr. Njeem’s expulsion from its national territory under Article 13 (1) of the Legislative Decree N. 286/1998, which empowers the Minister of the Interior to order expulsions on grounds of public policy and national security. It argued that the expulsion was not aimed to shield Mr. Njeem from accountability before the ICC, but was rather a necessary and urgent response to him posing a threat. This assessment was based on the gravity of the charges outlined in the ICC arrest warrant and the discovery, at the time of his arrest on January 19, 2025, of a large sum of cash and a rifle optic in his possession.

While Article 13 (1) of the Legislative Decree N. 286/1998 grants the Minister of the Interior the authority to order expulsion on grounds of public policy and national security, the invocation of such power requires a specific and concrete threat. Reliance on the gravity of alleged crimes or possession of items, which although unusual, are not inherently unlawful, does not by itself meet this threshold. The Italian Government seems not to have provided further evidence to substantiate how Mr. Njeem posed an actual and immediate threat to national security. Without such proof, the expulsion appears to have been a convenient excuse rather than a necessary security measure.

Libya Steps In, Italy Steps Back: A Second Chance for Justice?

The final word rests with the ICC’s Pre-Trial Chamber, which will evaluate Italy’s submissions to determine whether to start a finding of non-cooperation against the Italian Republic under Article 87 (7) of the Rome Statute. Meanwhile, hope for the pursuit of international justice resurfaced following Libya’s declaration on May 12, 2025, accepting the ICC’s jurisdiction under Article 12 (3) of the Rome Statute for alleged crimes in its territory from 2011 to the end of 2027. This development could pave the way for renewed cooperation and offer a path toward ensuring Mr. Njeem is held accountable before the ICC, given that he is once again on Libyan soil.