Italy violated Rome Statute by releasing Libyan warlord wanted by ICC, say rights groups

Legal experts and human rights organizations expressed shock on Thursday over Italy's release of a Libyan warlord this week on a technicality, after he was detained on an International Criminal Court (ICC) arrest warrant. The Hague-based ICC issued a press release on Wednesday stating that its Pre-Trial Chamber had issued an arrest warrant on January 18 for Libyan officer Osama Elmasry Njeem, also known as Almasri, who was allegedly the head of the notorious Mitiga prison in Tripoli.

Almasri faces charges of crimes against humanity and war crimes, including murder, torture, rape, and sexual violence against detainees, particularly targeting migrants and asylum seekers. These charges are related to the court's investigation since February 2015 into alleged crimes committed in Libya. According to the ICC, Almasri was detained in Turin, Italy, on January 19, but released two days later without notifying the court. He was able to return to Libya, and photos of his arrival in Mitiga being welcomed by supporters have been widely circulated online.

The ICC stated, "The Court is seeking, but has not yet received, verification from the relevant authorities regarding the steps reportedly taken." The court also mildly condemned the Italian authorities, stating, "The Court recalls the obligation of all States Parties to cooperate fully with the Court in its investigations and prosecutions of crimes." Italy is a State Party to the Rome Statute, the ICC’s founding treaty, and is obliged under its Article 89 to arrest and surrender persons wanted by the Court.

A joint statement released on Thursday by Libyan, Italian, and international human rights organizations said, "The failure to transfer Almasri to the ICC constitutes a grave violation of Article 89 of the Rome Statute." The statement noted that the court's mandate to prosecute international crime suspects is entirely dependent on state cooperation. "As a first step, the Italian government must immediately explain the reasons for its release of Almasri and its failure to transfer him to the Court." The organizations stated, "The Office of the Prosecutor of the ICC can then consider making a motion under Article 87(7) of the Rome Statute seeking a finding of non-compliance by Italy with its legal obligations and referring the matter to the Assembly of States Parties of the ICC."

Meanwhile, the International Federation for Human Rights (FIDH) said that Italy's non-cooperation undermines the rights of thousands of victims to access justice. The ICC faces a crisis of non-cooperation in many cases, including in Ukraine and Palestine. Some member states, including Italy and France, claim that senior leaders wanted by the court, such as Israel's Benjamin Netanyahu, enjoy immunity from arrest. "The ICC has no shortage of cases; it has a shortage of arrests," said FIDH. "The court has issued arrest warrants for more than 30 suspects around the world, but trials cannot proceed and justice remains out of reach because of the failure of states like Italy to fulfil their obligations to arrest and surrender them."

Italy's far-right government has bilateral agreements with Libyan authorities to curb the flow of migrants and refugees across the Mediterranean. It is not clear whether Almasri's release is linked to the relationship between Italy and the militias and state forces responsible for stopping irregular migration. Since 2016, Italy and the EU have been accused of complicity in the atrocities committed against migrants and refugees by the Libyan coast guard. In 2023, an investigation by Lighthouse Reports revealed that the EU border agency Frontex "systematically shared the coordinates of refugee boats with a Libyan militia group known for kidnapping and torture."

Claudio Francavilla, EU deputy director at Human Rights Watch, told Middle East Eye: "Rome has once again betrayed the Rome Statute and the victims of horrific abuse in Libya, Palestine and elsewhere." He added, "After shameful non-cooperation rhetoric against the ICC on Netanyahu, Italy has acted by releasing Almasri. The Meloni government seems keen on protecting war criminals, disregarding its obligations as a member of the ICC."