As Rome Mutinies, Justice for Libya Fades

[Maria Crippa is a postdoctoral fellow in international criminal law at the University of Milan and a visiting researcher at the University of Tilburg.

Matteo Colorio is a PhD candidate in international law at Sant’Anna School of Advanced Studies in Pisa and a visiting researcher at the University of Tilburg.]

Introduction

Osama Elmasry Njeem, also known as Elmasry, was arrested in Italy on 19 January 2025, pursuant to an arrest warrant issued by the International Criminal Court (ICC). He registered his name at a hotel in Turin and seemed unaware that he was an internationally wanted man. Tipped by Interpol, the Italian authorities showed up at his hotel and took him into custody that morning.

As the news of Elmasry’s arrest spread, enthusiasm grew for the prospect of the first ICC prosecution in the Libyan situation. Elmasry is the head of the Libyan judicial police. The ICC accuses him of crimes against humanity and war crimes – including murder, torture, persecution, rape and sexual violence – perpetrated against migrants and refugees at Tripoli’s Mitiga detention centre from February 2015 onwards.

But hopes lasted only a few hours. In the afternoon of 21 January 2025, only two days after he was apprehended, the Court of Appeals of Rome issued an order to release Elmasry (an unofficial English translation of the order is available here). The Italian government immediately transferred him on a state flight back to Libya, where he was enthusiastically welcomed. The ICC issued a harsh press release in response, stating that the Italian authorities released Elmasry “without prior notice or consultation with the Court.”

The Elmasry case reveals Italy’s difficult relationship with international criminal justice. The Court of Appeals of Rome’s decision to order his release sheds light on controversial issues of interpretation of Italian legislation on cooperation with the ICC, particularly a hidden place for unfettered political discretion.

In 1998, Italy hosted the diplomatic conference that led to the adoption of the Statute of the ICC, therefore called the Rome Statute. Italy was among the first states to ratify it in July 1999. However, only in 2012 did Italy equip itself with the necessary legislation to cooperate with the Court (Law 20 December 2012, n° 237). The legal framework remains incomplete as Italy has not yet domesticated core international crimes into its legislation. In 2022 a commission of experts appointed by the former Minister of Justice (MoJ) produced a comprehensive draft code of international crimes. The new government then shelved this draft code. Italy remains the only EU Member State that has not yet criminalised core international crimes at the domestic level.

Nonetheless, Italy at times demonstrates a certain willingness to contribute to accountability efforts for atrocity crimes, particularly those perpetrated in Libya. The Italian legislation for cooperating with the ICC was passed precisely in reaction to the outbreak of the Libyan crisis in 2011. Torture and other crimes perpetrated against migrants in the detention centres in Libya were prosecuted on several occasions before Italian courts. Furthermore, Italy signed a Joint Team Agreement under the framework of Article 19 of the UNTOC in 2022, together with the authorities of the Netherlands, the United Kingdom and Spain, and the Office of the Prosecutor (OTP) of the ICC, with the support of Europol. The Joint Team focuses on high-level perpetrators of extreme violence against migrants and aims to facilitate intelligence sharing and the execution of arrest warrants (see here and here).

The Elmasry’s Release Decision

The Elmasry case, however, brings back to the foreground the other side of Italy’s relationship with international criminal justice, where political interests prevail. These regressive forces are particularly evident in the Libyan situation, given Italy’s controversial financial support to Libyan authorities to ‘deal’ with migrant management since 2017, which might implicate the responsibility of various members of the current and previous governments.

On 18 January, the ICC Pre-Trial Chamber I issued, by majority, the arrest warrant against Elmasry (the OTP’s application dated back to 2 October 2024). On the same day, the ICC Registry submitted a request for his arrest to six States Parties, including Italy, via designated diplomatic channels. The Court also asked Interpol to issue a Red Notice. Italy, as a State Party to the Rome Statute, was obliged to cooperate fully with the Court in the execution of the arrest warrant issued against Elmasry pursuant to Art. 86 of the Statute. Art. 89.1 specifically empowers the Court to request the arrest and surrender of a person and requires States Parties to comply with such requests.

Nonetheless, on 21 January 2025, the Court of Appeals of Rome granted the General Prosecutor’s request to dismiss the proceeding on the confirmation of Elmasry’s arrest. In the absence of a legitimate legal basis for his custody, Elmasry was then promptly released. The court ruled that Elmasry’s arrest did not comply with procedures established by Law 237/2012, rendering it “irrituale” (‘not ritual’, meaning an irregular act that does not strictly comply with procedural rules). Specifically, Elmasry was arrested at the initiative of the Italian police, acting on an Interpol Red Notice. The court noted that such a police initiative is not explicitly provided for executing ICC arrest warrants (Art. 11 Law 237/2012), whereas it forms part of the extradition procedure (Art. 716 Code of Criminal Procedure, CCP). According to the court, this omission precludes any power of initiative upon the police in the execution of ICC arrest warrants. Instead, any act of cooperation with the ICC requires prior formal communication between the MoJ – the central authority responsible for receiving, coordinating and following up on ICC’s requests – and the General Prosecutor (Art. 2 Law 237/2012).

This interpretation of Law 237/2012 raises two significant issues. First, the law’s general provisions explicitly state that ICC cooperation should follow extradition norms unless otherwise provided (Art. 3 Law 237/2012). Thus, the lack of reference to the concrete modalities for executing ICC arrest warrants in Law 237/2012 leaves open the applicability of provisions governing the execution of extradition arrest warrants by the police. Requiring prior communications between the MoJ and the General Prosecutor could compromise the timely execution of Interpol Red Notices or even ICC’s urgent requests for provisional arrests. In urgent cases, the ICC may also request provisional arrest pending the production of documents supporting the request for surrender (Artt. 59.1 and 92 Rome St.). The approach adopted by the Court of Appeals seems rather inconsistent with the teleological interpretation of Law 237/2012 and risks undermining its concrete applicability.

In any case, according to the ICC, the request for arrest and surrender was transferred to competent Italian authorities already on 18 January 2025, before Elmasry’s arrest. It is legitimate to ask what the Italian police should have done when confronted simultaneously with the MoJ’s inaction and an Interpol Red Notice.

Even if the arrest was deemed “irrituale”, the General Prosecutor retained the option to request the Court of Appeals to confirm custody pending the surrender to the ICC. Under Italian criminal procedure, the confirmation of an arrest warrant and the application of precautionary measures are subject to independent examination (Art. 391 CCP). It is not uncommon for precautionary measures to be applied even when an arrest is not validated.

However, the General Prosecutor did not request the application of precautionary measures in the absence of any instruction by the MoJ. The Minister was informed by the General Prosecutor of Elmasry’s arrest at the latest on 20 January. Since Law 237/2012 does not prescribe specific time limits for confirming arrest warrants and precautionary measures, the provisions governing extradition apply. The police had 48 hours to submit the arrest report to the Court of Appeals, which, in turn, had another 48 hours to validate the arrest warrant and decide on custody (Article 716 CCP). On 21 January, the MoJ publicly stated that he was “considering” whether to formally transmit the ICC’s request to the General Prosecutor. However, such a request not being received, the Court of Appeals denied custody of Elmasry, who was immediately put on board an Italian intelligence plane heading for Libya.

It is noteworthy that neither Law 237/2012 nor the Rome Statute grants the MoJ any political discretion in following up on requests for arrest and surrender from the ICC. By contrast, such discretion is explicitly provided for extradition cases that may threaten sovereignty, national security, or the State’s essential interests (Artt. 697.1-bis and 701.3 CCP). Law 237/2012 only accords the MoJ the power to suspend the transmission of documents or disclosure of evidence if they involve national security information (Art. 5). Art. 13 stipulates that the Court of Appeals can deny the surrender to the ICC only in enumerated cases, none of which can be ascribed to a political decision by the MoJ. Against this backdrop, the Court of Appeals’ interpretation of Law 237/2012 in the Elmasry release decision appears to assign a key – or even preclusive – role to the MoJ in a cooperation mechanism that instead leaves the Minister without decision-making power on the merits.

Even assuming a legitimate legal issue arose in surrendering Elmasry to the ICC when a requested State identifies any problems which may impede or prevent the execution of a Court’s cooperation request, it is bound to consult with the Court to resolve the matter (Art. 97 Rome St.).

Consequences

In the Elmasry case, Italy breached its international obligation to cooperate with the ICC. Italy failed to surrender the accused to the Court and has apparently evaded the consultation obligation under Art. 97 Rome St. The ICC’s press release reveals that the Court “is seeking, and is yet to obtain, verification from the authorities on the steps reportedly taken.” The competent Pre-Trial Chamber could bring Italy’s failure to cooperate to the attention of the UN Security Council, which referred the Libyan situation to the ICC in 2011. The Council could issue a binding resolution acting under Chapter VII or even adopt sanctions. However, previous experiences tell us the Council will unlikely act upon the non-cooperation.

Given that Elmasry’s arrest warrant also encompasses the crime of torture, Italy has also breached its obligation to prosecute or extradite Elmasry to a state willing and able to do so under Article 7.1 of the Convention against Torture (CAT). Libya will almost certainly not initiate proceedings against him. The aut dedere aut judicare is an obligation erga omnes partes, and thus – as in Belgium v. Senegal – Italy’s state responsibility could be upheld by the International Court of Justice on the initiative of any other CAT’s State Party.

At the domestic level, Elmasry’s release and expulsion could also trigger the individual responsibility of senior figures in the Italian government. On 28 January, Rome’s Prosecutor Office received a criminal complaint alleging that the Italian Prime Minister, the Undersecretary to the Prime Minister’s office and the Ministers of Justice and Interior are responsible for the crimes of aiding and abetting Elmasry to evade justice (Art. 378 Criminal Code, CC) and of embezzlement of public funds for the use of the Italian intelligence’s plane to repatriate him to Libya (Art. 314 CC). Prime Minister Giorgia Meloni announced in a video that she has been served with a notice of investigation. Under Italian law, a notice of investigation constitutes a procedural prerequisite not implying any finding of criminal wrongdoing on the part of the recipient but aiming to guarantee his or her right to defence. A different act is the formal communication to members of the government of criminal complaints received against them, required – prior to any investigations – by Art. 6.2 of the Constitutional Law 1/1989. This latter communication – not the notice of investigation – was received by Prime Minister Meloni and others in connection with the Elmasry case. It should be noted that Art. 96 of the Italian Constitution and Constitutional Law 1/1989 grant the Prime Minister and the other Ministers of the government relative immunity from prosecution for crimes allegedly committed as part of their official functions. The authority to allow the investigation to proceed is vested in the Parliament, unless the individuals concerned voluntarily waive their immunities.

Conclusion

In 2023, the Italian Prime Minister declared the government’s commitment to prosecute high-level migrant smugglers “all over the world.” The Elmasry case stands in sharp contrast with this stance. The Italian handling of this case frustrates the prospects of arresting Elmasry, at least for the foreseeable future. His triumphant return to Libya also reinforced his sense of impunity, along with that of many other perpetrators of heinous crimes around the world. The Elmasry precedent undermines the mutual trust that underpins the functioning of the Joint Team, as the participating national authorities may question the Italian commitment to the fight against impunity for extreme violence against migrants.

The lack of sound legal justifications for the decision suggests that political considerations influenced the matter, possibly reflecting the complex relationship between Italian and Libyan authorities. The Italian government seemed eager to resolve the matter as quickly as possible, as also the immediate expulsion of Elmasry to Libya for “reasons of state security” suggests. It is questionable how bringing Elmasry back to Libya, the state where he is accused of having committed heinous crimes, can effectively address security concerns that, according to the Italian government, originate in those very crimes.

Overall, the Elmasry case reveals that, due to legal and political shortcomings, Italy failed once again to discharge its share of the burden in the international criminal justice system. Rome mutinied just as the first ICC suspect was apprehended on Italian soil.

Photo attribution: “The Burning of Rome” by J. M. W. Turner is licensed under CC BY-SA 4.0.