This is the latest setback in cooperation between a State party and the International Criminal Court (ICC). “Italy has failed to comply with its obligations of cooperation with the Court,” comments Maria Crippa, a research fellow at the Department of Law “Cesare Beccaria” at the University of Milan. “This is also a very important signal to understand which direction the investigation of the ICC Prosecutor is taking, but at the same time it is problematic because, now the arrest warrant is public, this person and his collaborators will hardly travel, and it will be difficult to capture him again.”
On January 21, two days after his arrest in a Turin hotel following a warrant from the ICC, Osama Almasri Najim, head of the Libyan judicial police, was released on procedural grounds by a Rome appeals court and flown to Libya in an Italian government plane.
The man is a 45-year-old Libyan national. Reportedly in charge of the notorious Mitiga prison in Tripoli and a senior official of Libya’s judicial police, he is suspected of crimes against humanity and war crimes, including murder, torture, enslavement and sexual violence committed since February 2015. According to the ICC, the crimes were committed against detainees for “religious reasons”, “immoral behaviour”, and their alleged support or affiliation with other armed groups.
Sexual violence, murder and torture
Many of those imprisoned at Mitiga are migrants and refugees, though there is no mention of these groups in the ICC arrest warrant. Unsealed on January 24, the document gives a detailed account of the alleged crimes. At least 5,140 persons were imprisoned in Mitiga from February 2015 to October 2024, “in violation of fundamental rules of international law”. The Prosecutor submitted to the judges that “at least 22 persons, including a five-year-old boy, were subjected to sexual violence by Mitiga Prison guards. […] At least eight persons, including a 15-year-old boy, were raped”. The judges also found “reasonable grounds to believe that at least 34 detainees were killed in Mitiga Prison”: four after being shot, 12 due to torture, 16 to a lack of adequate medical treatment, and at least two “as a result of being obliged to sleep in the prison’s yard despite the freezing temperature”. The ICC investigation in Libya started in 2011, after a United Nations Security Council referral. No suspect in the situation has been arrested and tried yet.
“The Libyan domestic system is not able and willing to prosecute perpetrators of international crimes, so the only remaining hope is the ICC,” says Mehdi Ben Youssef, Senior Investigator at Lawyers for Justice in Libya. “Victims and Libyans have waited for 14 years [since the referral to the ICC] to see any form of justice and this arrest represented a huge opportunity: it referred to crimes committed in one of the main prisons by a member of one of the main militias in the country [the Special Deterrence Forces, also known as Rada]. That’s why it represents a huge blow, and it sends the wrong signal from Italy.”
What is known from media reconstruction and official documents is that Najim attended a Juventus-Milan football match in Italy on Sunday 19, after arriving in the country by car. According to Corriere della Sera, he had landed from Libya in Italy on January 6 and had spent two weeks travelling to European countries, before renting a car in Germany that he was supposed to return at Rome Fiumicino airport. It is only the day before the game, on Saturday 18, that the ICC issued a sealed arrest warrant against him. In its only press release reacting to the situation so far, issued on January 22, the ICC said that the warrant was transmitted to six State parties, including Italy. The ICC also said that it “conveyed real-time information indicating the possible whereabouts and movement of the suspect” and it requested Interpol to issue a Red Notice.
On Sunday, Italian anti-terrorist police (DIGOS) arrested Najim in a hotel room in Turin and informed the Ministry of Justice. According to the ICC statement, “at the request of, and acting out of full respect for the Italian authorities, the Court deliberately refrained from publicly commenting on the arrest”. At the same time, they kept seeking engagement and reminded Italian authorities that in case of any problems, “they should consult the Court without delay”.
After two days of silence from the Ministry of Justice, which was responsible for confirming the detention and passing on the ICC orders, the Rome Court of Appeals on January 21 issued an order with the favourable opinion of the Prosecutor General to release Najim. It cited “procedural irregularities” in his arrest. Najim was swiftly sent back to Libya on an Italian government plane, where he was greeted by a cheering crowd of supporters and carried through the streets of Tripoli. According to the ICC press release, “the Court is seeking, and is yet to obtain, verification from the authorities on the steps reportedly taken”.
Meloni under investigation
Last week, Italian Foreign Minister Antonio Tajani told reporters that the ICC “is not the word of God, it‘s not the font of all truth”, adding that “Italy is a sovereign country”.
But on January 28, Italian Prime Minister Giorgia Meloni said, in a video message, that she had been placed under investigation following the release of Najim, together with Justice Minister Carlo Nordio, Interior Minister Matteo Piantedosi and the cabinet undersecretary for Intelligence Matters, Alfredo Mantovano. Rome’s chief prosecutor, Francesco Le Voi, opened an investigation against her for allegedly aiding and abetting a crime and misuse of public funds, she said, triggered by lawyer Luigi Li Gotti’s complaint over the release of Najim and the use of an official jet to fly him back to Tripoli. “I am not blackmailable, I am not intimidated,” Meloni added.
This latest development has sparked political chaos. Ministers Nordio and Piantedosi were invited to explain on Wednesday 29 January before the House of Representatives and Senate to explain why the Libyan national was released and sent back, but they refused to attend. In response, opposition parties have suspended the Senate sessions until next Tuesday, February 4, or until Meloni agrees to report to Parliament.
Nordio already appeared in the Senate on Wednesday 22 for a previously scheduled briefing. Opposition members urged him to clarify what happened and accused the government of hypocrisy, since after the tragic shipwreck in Cutro in March 2023 that left at least 94 people dead Meloni promised she would “go after the smugglers all over the globe because we want to break this trafficking”. As for Piantedosi, he said during a question time in the Senate on January 23 that “following the non-validation of the arrest and considering that the Libyan citizen presented a profile of social dangerousness, I adopted an expulsion order for reasons of State security”.
“This is of unprecedented gravity”
According to Chantal Meloni, professor at the University of Milan, “the law does not give discretion to the Justice Minister, it gives them a technical role. So the Minister’s statement was something unusual, because there was not much to evaluate, just transmit these acts, as the law requires. This is of unprecedented gravity, and it is pointless to hide behind technicalities”. When the arrest was considered irregular, Nordio could have solved the problem, concludes Meloni.
“It is outrageous. There was a clear arrest warrant so there was no room for interpretation or political manoeuvring,” says Ben Youssef in Libya. Victims’ groups in Libya fear retaliation now that the arrest warrant is public and Najim is back in the country, he adds. “Civil society and activists are already collaborating with the ICC under a crackdown and speak with them at huge risk, which now is even higher.”
According to Ali Omar, Director of Libya Crimes Watch, “by taking this step, the Italian authorities become complicit in the responsibility for the international crimes and violations being committed in Mitiga Prison”. Omar also points to a previous incident when Saddam Haftar, the son of Khalifa Haftar suspected by Spanish police of smuggling weapons, was briefly detained and then released by the Italian authorities, in August 2024.
Over the last decade, Italy has outsourced its migration control to Libya, by paying and training the Libyan Coast Guard to push-back migrants, after having funded Muammar Gaddafi with billions of dollars to control migrants. Because of that, Italian politicians have been named in various reports and communications to the ICC as possible co-perpetrators in crimes against migrants.
Rome vs Rome Statute
Crippa thinks that “apart from hosting the founding Rome conference, Italy has unfortunately distanced itself from the international criminal justice system through some clear decisions, like the one to block the reform to implement the international crimes of the Rome Statute in its national system in 2022”. As a result, so far it could not prosecute perpetrators high up in the chain of command. “We catch the small fish that often arrive in Italy, themselves part of the migratory flow. So, arresting a person who stands at the head of a system of torture and violence would have been a positive sign in terms of accountability and fighting impunity.”
Gabriele della Morte, professor of international law at the Università Cattolica in Milan, suggests that the release of Najim also sends a broader message. “The government is saying that if Netanyahu or a member of the Israeli government passes on Italian territory, forget that they will catch him. This seems to me to be the clear message that the Italian government is giving: the relations with the ICC are political, not legal. Therefore, you must not automatically proceed with the order of the International Criminal Court.”
As the ICC is left with just one ongoing trial in 2025 and is threatened by heavy sanctions from the United States, “it is a very bitter pill to have come so close to the start of new proceedings, years of work could have materialised,” says professor Meloni. “The Italian government boycotted a successful operation that was almost completed.”
“It puts Italy in the clear position of a country that is in fact working against the ICC, against a system of international criminal justice painstakingly built over decades with great aspirations, promises and premises that have involved Italy at the forefront,” she adds. “Italy is now instead taking the side of those states that, starting with Trump’s United States, want to effectively make the work of the International Criminal Court’s judges impossible.”
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