In 2025, it was the first time that states were called to discuss non-cooperation with the International Criminal Court (ICC), at the Assembly of States Parties (ASP). Besides pointing to ICC member states’ failure to arrest Russia’s Vladimir Putin and Israel’s Benjamin Netanyahu, both under arrest warrants, the plenary meeting held on December 3 in The Hague heard a recurring country name coming up in the civil society speeches: Italy.
“In a context in which the court, its officials and civil society working for international justice are increasingly under attack, including through US sanctions, each instance of non-cooperation is a further blow to the Rome statute system, especially when it comes from state parties”, Cristina Orsini, senior programmes advisor at Lawyers for Justice in Libya, told the audience of states delegates and Ngos.
On January 21, 2025, two days after his arrest in a Turin hotel following a warrant from the ICC, Osama Almasri Najim, a former head of the Libyan judicial police, was released by Rome and flown back to Tripoli in an Italian government plane. The 46-year-old Libyan national was reportedly in charge of the notorious Mitiga prison in Tripoli. He is suspected of crimes against humanity and war crimes, including murder, torture, enslavement and sexual violence. After months of procedural back and forth between the Court and Italy, on October 17, the ICC found that Italy failed to comply with its international obligation. But it did not refer the country to the next level up yet.
“It is not possible to engage in any discussion concerning alleged non-compliance by my country in the absence of a formal referral” [for lack of cooperation, to the ASP or the United Nations Security Council], declared Augusto Massari, Italy ambassador to the Netherlands, during the ASP plenary debate. He said that on the contrary Italy had provided “timely, transparent, and comprehensive responses” and “will continue to engage in good faith with the court”.
“The message sent is very problematic”
Opening the panel, ASP president Päivi Kaukoranta focused on the states’ obligations “to engage in timely consultation with the court” in case of problems with arresting or transferring suspects.
“Italy cited domestic legal and procedural issues to justify its decision. On the contrary, it seems that the mix of political concerns and diplomatic pressures led to the subordination of international obligations and justice considerations to political expediency”, added Orsini during the panel. Speaking to Justice Info later, she recalled that “Italy is not only a state party but also one of the founding members of the Court, so the message being sent is very problematic”.
Taking the word on behalf of the European Center for Constitutional and Human Rights (ECCHR) was David Yambio, co-founder of the Italian NGO Refugees in Libya. He said he was speaking as a “victim of innumerable violence of Almasri in many torture camps across Libya”. His host country’s failure to send the suspect to the ICC, had led him to “face many threats, and to this day our lives have never been the same”. Yambio concluded that in their “carefully crafted speeches”, the member states, including Italy, had spoken about accountability and the suffering of victims, “but what you have not acknowledged is that our lives depend on the decisions that you make”.
The ICC’s timid reaction
In its October decision, the ICC found that “Italy failed to comply with its international obligations under the Statute preventing the Court from exercising its functions and powers”. Over the months, Italy brought forward reasons for sending Najim back to Libya instead of the Hague, including the formulation of the ICC warrant and another competing warrant previously sent by the Libyan authorities. However, the Court found that this do not “explain its failure to communicate and cooperate” to resolve the alleged problems and do not provide “any valid legal reason or reasonable justification for having immediately transferred Mr Najim back to Libya, instead of first consulting with the Court”.
Regarding the alleged extradition request by Libya, the judges said that “Mr Najim was not handed over to the Libyan authorities but returned as a free man”. According to additional evidence filed by the prosecution on November 11, the Libyan request was notified to the Italian Ministry of Justice on January 22, 2025, after Najim was flown back to Tripoli in the evening of January 21. It was done “without measures and documents, without any indication of the enforceable procedural title and/or the arrest warrant”, it reads.
However, the ICC judges decided to wait before referring the country to the Assembly of States Parties or to the United Nations Security Council, whose 2011 referral of the Libyan situation sparked the Court’s investigation.
Allison West, senior legal advisor at ECCHR, told Justice Info that Italy should be referred to the ASP or to the UNSC “as a matter of principle”. “These are procedures that have little concrete consequences beyond naming and shaming”, Orsini told Justice Info. However, she thinks it would be important to bring the matter to a higher level.
Rome prosecutor’s silenced reaction
The Rome chief prosecutor had placed Alfredo Mantovano, Undersecretary of State to the Presidency of the Council of ministers, as well as the Justice and Interior ministers Carlo Nordio and Matteo Piantedosi, under investigation – for failure to fulfil their official duties, aiding and abetting and embezzlement. In a vote on October 9, the Chamber of Deputies denied a request for authorisation to proceed against the three government officials. Twenty days later, the Ministers’ Court shelved the investigation.
Nevertheless, in Italy’s response to the ICC requests for more information on domestic proceedings, the country’s ambassador to the Netherlands said that “against Parliament’s decision, the Judiciary has the power to raise the issue of a conflict of State powers attribution before the Constitutional Court.” Massari added that the fact that the developments in the Najim case were “widely reported and disseminated to the public by the media, have at all levels clearly raised awareness of how significant, rich in implications and therefore complex the cooperation with this Court is”. This can only have a “positive impact” on the “future requests for cooperation”, he concluded.
On October 30, the Appeal Court of Rome raised a question on the constitutional legitimacy of the laws on cooperation with the Hague Court. It asked the Constitutional Court to review the matter. Besides, the ECCHR decided to support a case before the European Court of Human Rights brought by a torture survivor, who said he was unlawfully detained by Najim, against Italy for its failure to cooperate with the ICC. “This will be the first time that the Strasbourg Court actually examines a case of non-surrender to the ICC”, West said.
Najim arrested in Libya?
In the late morning of November 5, Libyan and international media announced that Najim had been arrested. And a month later, Tripoli attorney general, Al-Siddiq Ahmed Al-Sour, confirmed in a special statement to Libya News 24 that he remains in prison.
However, “despite all of the public claims, we don’t actually have any credible evidence yet that Najim has been arrested. According to the Libyan civil society groups we’re in touch with, he remains at liberty”, said West. According to her, this can be seen as an effort by the attorney general to signal that Libya is serious about cooperating with the ICC, while making it clear that they would like to prosecute crimes domestically. Besides, West explains that the Libyan judicial system remains too fragmented and under pressure from the different political and militia forces to ensure fair trials. “One of the fundamental issues at stake is that the charges that are proposed by the attorney general are for regular crimes under the Libyan Criminal Code, not international crimes”, she added. To her, “the widespread and systematic attack on both Libyans and migrants and refugees that takes place across Libya really consolidates in the detention industry. It’s incredibly important that it’s placed in the broader context of crimes against humanity”.
On May 15, the ICC made public a declaration sent by the Libyan government to accept the Court jurisdiction from 2011 to 2027. In its half-yearly statement to the UN Security Council on November 26, Deputy Prosecutor Nazhat Shameem Khan said that her office remains “focused on securing the arrest and transfer of Mr. Osama Almasri Najim for trial at the ICC”, and “would like to welcome the attorney-general of Libya to deepen his engagement in this common cause”.
The country arrested ICC suspects in the past, such as Saif al-Islam Gaddafi in 2011, who was later freed, and more recently Mohamed Al-Saleheen, wanted in the context of the investigation into the Tarhuna mass graves. They were never surrendered to the ICC.
A LIBYAN BEFORE THE ICC
Just before the States parties to the International Criminal Court (ICC) gathered to discuss non-cooperation, on December 1, 2025, a Libyan has been brought before the Court to stand trial. Khaled Mohamed Ali El-Hishri was a senior official of a militia known as RADA and is suspected of committing or overseeing crimes against humanity and war crimes in the Mitiga prison between 2015 and early 2020. He was arrested on 16 July 2025 in Germany.
“This is the very first case in the 15 years of the Libyan situation that’s actually going to proceed to trial”, underlined Allison West, senior legal advisor at the European Center for Constitutional and Human Rights. El-Hishri was in the leadership of the same prison and the same militia as Osama Almasri Najim. “What happens in this case would potentially influence other cases that are within that same investigative stream, which is why it’s so important to get this one right”, she concluded.
