On 5 February 2025 the Italian Minister of Justice, Roberto Nordio, intervened before the Camera dei deputati as well as the Italian Senato, to report on the facts, applicable laws and responsibilities in the case of Almasri. According to the International Criminal Court (hereinafter ‘the Court’), ‘[o]n 17 January 2025, the Court was informed that Mr [Osama Elmasry (also known as Almasri Njeem)] was present within the Schengen zone, in a country other than Italy. The Chamber therefore expedited its ongoing assessment of the application pursuant to article 58 of the Rome Statute (the ‘Statute’)’ and on 18 January 2025 issued by majority a warrant of arrest. On 19 January 2025 the Italian police (Digos), following the Court’s request to INTERPOL to issue a Red Notice, arrested Mr Almasri in Turin, where this latter had travelled from Germany to attend a football match between Juventus and Milan. According to the Court, ‘[a]t the request of, and acting out of full respect for, the Italian authorities, the Court deliberately refrained from publicly commenting on the arrest of the suspect’. On 21 January 2025, however, pursuant to an order issued by the Court of Appeals of Rome, Almasri was released, expelled and repatriated to Libya. On 24 January 2025 the Court released to the public a corrected version of the warrant of arrest for war crimes and crimes against humanity, including the dissenting opinion of judge Socorro Flores Liera. Leaving aside any considerations regarding the relevant domestic legislation and arguably the need for further clarification on the related attribution of prerogatives among different actors of the Italian legal system, which might better align with the obligations arising from the Rome Statute, this post analyses some of the arguments submitted by the Minister of Justice in order to shed light on the international responsibilities upon Italy as a state party to the Rome Statute establishing the Court, as well as on the functioning of the Court itself. 

To whom should the warrant of arrest be notified and in which language

Before the Italian Parliament, Mr Nordio has claimed that the warrant of arrest was not notified to him, but that he had been informed by a very short and informal email sent by the Italian Digos to an officer of its Ministry, once the arrest of the suspect in Turin had already occurred. The Court states that they have notified the warrant of arrest to the bodies communicated to the ICC by the requested state. 

On 28 April 2004, Italy, like many other states parties to the Rome Statute, submitted a declaration to be appended to their ratification of the Rome Statute, which reads as follows: ‘Italy hereby specifies that it would like to receive the requests for cooperation provided for by Article 87 of the Rome Statute through diplomatic channels.  The language in which those requests and the relevant documents should be received is Italian, together with a French translation’[emphasis added]. This declaration is in line with article 87(1)(a) and (2) of the ICC Statute, which in their relevant parts read respectively as follow: ‘The Court shall have the authority to make requests to States Parties for cooperation. The requests shall be transmitted through the diplomatic channel or any other appropriate channel as may be designated by each State Party upon ratification, acceptance, approval or accession’ [emphasis added] as well as ‘[r]equests for cooperation and any documents supporting the request shall either be in or be accompanied by a translation into an official language of the requested State or one of the working languages of the Court, in accordance with the choice made by that State upon ratification, acceptance, approval or accession’. [emphasis added]. It must be noted that according to regulation 35 of the Regulations of the Registry of the Court, ‘[i]n the cases listed in regulation 31, sub-regulation 3 of the Regulations of the Court, a copy of the document, order or decision certified in accordance with regulation 23 shall be notified by way of a note verbale to the State through the designated official channel of communication, and shall be, where required, in the language of the recipient’ [emphasis added]. Notably, regulation 31(1)(a) of the Regulations of the Court includes the case of warrants of arrest.

Thanks to a decision of the Court dated 17 February 2025, it is now clear that on 18 January 2025 the Registrar sent urgent requests for provisional arrest of Almasri, pursuant to article 92 of the Statute, to the six European States where it was believed the suspect could be present, including Italy. Yet the Italian Ambassador in The Hague transmitted the warrant of arrest to the Italian Minister of Justice only two days later, on 20 January 2025, and it was only on 21 January that the Ministry of Justice acknowledged receipt of the ICC ‘request’ (including the decision on the warrant of arrest), which, as lamented by Mr Nordio before the Italian Parliament, was in English, with annexes in Arabic. Considering the complexity of the document, the Ministry claimed they were evaluating the option of transmitting the same to the General Prosecutor in Rome. 

Notably, the Pre-Trial Chamber affirms that ‘Italy did not seek to enter into consultations with the Court pursuant to article 97 of the Statute in the period between the issuance of the Warrant for Arrest and Mr Njeem’s return to Libya’. Yet on the same day the Court of Appeals in Rome ordered the release of Mr Almasri ‘[i]n assenza di richiesta di applicazione di misura cautelare da parte del Procuratore Generale per mancata trasmissione degli atti della Corte penale internazionale di competenza ministeriale’ [emphasis added]. On 17 February 2025 while affirming that ‘Mr Njeem’s arrest and subsequent release by Italy, as well as Italy’s transfer of Mr Njeem to Libya, warrants a determination on the part of the Chamber of whether it is appropriate to make a formal finding of non-compliance by Italy with the Court’s request for arrest and surrender of Mr Njeem to the Court; and whether the matter ought to be referred to the Assembly of States Parties and/or the Security Council’, and pursuant to regulation 109 of the Regulations of the Court, the Pre-Trial Chamber of the ICC has invited ‘the Italian Republic to provide, by 17 March 2025, submissions concerning its failure to surrender Mr Njeem to the Court’. Among the aspects that Italy may want to shed light on, there is the delay in the transmission of what – it is now clear – was an urgent request to cooperate pursuant to article 92 ICC Statute. Notably, this was one of the arguments of the ICC Prosecutor, when, on 21 February 2025, he requested the Court to find a non-compliance under article 87(7) of the ICC Statute against Italy.  The urgency of the provisional request might moreover justify the lack of transmission of the documents in Italian. 

In the same invitation of 17 February 2025, the Pre-Trial Chamber has acknowledged that on 27 January and 10 February 2025 the Italian Ministry of Justice, through the Italian Embassy in the Hague, has sent two notes verbales to the Court ‘in response to a note verbale sent by the Registry to Italy on 24 January 2025 requesting information about, inter alia, Mr Njeem’s release and return to Libya’ whereby the Italian Ministry of Justice has claimed that ‘these matters do not fall within the competence of the Ministry of Justice’, calling into relevance the Ministry of Interior instead. This blatantly contradicts the position undertaken by Mr Nordio before the Italian Parliament in relation to the interpretation of the Minister’s prerogatives under the relevant Italian law, when he claimed that ‘il ruolo del Ministro non é semplicemente quello di un organo di transito delle richieste che arrivano dalla Corte; non é un passacarte; é un organo politico che deve meditare il contenuto di queste richieste, in funzione di un eventuale contatto con gli altri Ministeri, con le altre istituzioni e con gli altri organi dello Stato, laddove se ne presenti la necessità. E (…) questa necessità si presentava eccome.’ This interpretation of the role of the Minister of Justice, as discussed below, will result in other possible violations of the obligations stemming from the Rome Statute.

The possibility for the Court to correct the warrant of arrest at any stage before the confirmation of charges hearing 

The Italian Minister of Justice has argued that the version of the warrant of arrest made available to the public by the Court is significantly different, in terms of the crimes forming the bases for the warrant of arrest, including the time frame of the relevant acts, compared to the original version dated 18 Jan 2025, which is not available to the public at the time of writing. Assuming this is the case, and that there was no confusion on the side of the Italian authorities between the concept of temporal jurisdiction of the Court in the situation of Libya, that is 15 February 2011, and the time of the alleged commission of the crimes, namely, 15 February 2015, a few considerations must be made.

First, the fact that the request for cooperation was one for ‘provisional arrest’ pursuant to article 92 ICC Statute means that the Court was not even required to send a warrant of arrest to the requested states.[1] According to Rule 188 of the Rules of the Court, the Court has in fact 60 days from the day the request is submitted to send all relevant documents, including the warrant of arrest, to the competent organs. At that stage, then, a concise statement of the alleged crimes would be enough for the requested state to be under an obligation to cooperate with the Court. Notably, Article 59 ICC Statute provides that ‘[a] State Party which has received a request for provisional arrest or arrest and surrender shall immediately take steps to arrest the person’. 

Second, as stated above, Mr Nordio claimed before the Italian Parliament that among the corrections there was one implying a redefinition of the timeframe of the relevant acts (which were to be considered starting from February 2011 in the original version, and then changed to February 2015 in the corrected one). According to the Minister, it was due to these alleged errors that his office took longer than the time that is allowed by the Italian law for a court to convalidate a provisional arrest; hence Almasri’s release. While it should be uncontroversial that a political organ of a state cannot replace the ICC judges to the point of being able to check the legality of the decisions of an international court, the arguments raised by Mr Nordio could have served as bases for the defence lawyer of Mr Almasri at the confirmation hearing before the Pre-Trial Chamber of the ICC in the Hague, and even before that, as according to Rule 117 (3) of the Rules of the Court, ‘[a] challenge as to whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b), shall be made in writing to the Pre-Trial Chamber. The application shall set out the basis for the challenge. After having obtained the views of the Prosecutor, the Pre-Trial Chamber shall decide on the application without delay’. According to article 59(2)(c), moreover, ‘[a] person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: (…) the person’s rights have been respected’ [emphasis added], including arguably, the right to be arrested ‘in accordance with the proper process’.[2] While this provision can be considered as further evidence of the fact that only a judicial organ -and not a political one- of the requested state can determine any possible violations of the rights of the arrested person, it should be noted that according to relevant literature a determination of a manifest violation under national and/or international law of the rights of the arrested person, as the one alleged by Mr Nordio, may result in the release of the person or the suspension of the proceedings.[3] A restriction to this power could be called only when the Court has already declared the case admissible,[4] thing which does not apply to the case at issue as the Court decided not to exercise its discretionary proprio motu power under article 19(1) ICC Statute. Already in 2016 William Schabas concluded that since ‘[n]ational judicial authorities will have to measure the legal weight of what is required by article 59 alongside other international norms, specifically those imposed by international human rights law and relevant jurisprudence. There is no reason, from the standpoint of international law, why the Rome Statute should take precedence over international human rights norms. Conflicts between obligations owed to a person in detention, including the right to an effective remedy, and the urgency of surrender of a suspect to the International Criminal Court cannot be excluded’.[5] On the other hand, however, the Court may rely on article 32 of the 2001 International Law Commission’s Articles on State Responsibility, which states that ‘[t]he responsible State may not rely on the provisions of its internal law as justification for failure to comply with its obligations (…)’. In line with the same rationale, article 27 Vienna Convention of the Law of the Treaties, prescribes that ‘[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. Also, article 3 of the International Law Commission’s Articles on State Responsibility that provides that ‘[t]he characterization of an act of a State as internationally wrongful is governed by international law. Such characterization is not affected by the characterization of the same act as lawful by internal law’.

Third, and coming more specifically to the possibility for the Pre-Trial Chamber to edit the warrant of arrest, it might be worth recalling that under article 58 (1) ICC Statute the Court issues a warrant of arrest when ‘there are reasonable grounds to believe that person has committed at least one crime within the jurisdiction of the Court’.[6] The characterization of the relevant conduct can in fact be revised before the confirmation of charges, when pursuant to article 61(7) ICC Statute, the Court will decide on the bases of substantial grounds to believe that the person has committed the crime.[7] As clarified by the Court itself in 2015,[8] the warrant of arrest is indeed ‘by its very nature reviewable’. It remains to be seen whether an amendment could come from the Pre-Trial Chamber proprio motu, or only at the request of the Prosecutor. Yet, in the present case the warrant of arrest issued on 24 January 2025 was not technically amended, rather the Court issued what it defined a ‘corrected’ version of the same. According to the Court they did so ‘to correct certain typographical and clerical errors, and to append Judge Flores Liera’s dissenting opinion, the Chamber issued a corrected version on 24 January 2025’. As has been rightly highlighted, it is common practice of the Court to issue corrected versions of its decisions, even when it comes to arrest warrants. This notwithstanding it remains unclear to what extent a correction is not substantially equal to an amendment, and the impossibility for the public to access the original file does not help in this respect. 

The Precedent of Mongolia 

Thanks to the decision issued on 17 February 2025 by the Pre-Trial Chamber, it is now clear that the first request for cooperation was sent to Italy on 18 January pursuant to article 92 ICC Statute, namely, as an urgent request for provisional arrest. The precedent of Mongolia and its lack of cooperation with the Court on the occasion of this State party’s inaction vis-à-vis the possibility of arresting the Russian Head of State, Vladimir Putin, visiting the Country in August 2024, following a provisional request to arrest the same under article 92 ICC Statute had been notified by the Registry of the Court on 2 May 2023. On that occasion, the Pre-Trial Chamber, recalled that in 2009 the Appeals Chamber has held the following ‘the Appeals Chamber has held that: [t]he first clause of article 87(7) of the Statute consists of two cumulative conditions, namely, (i) that the State concerned failed to comply with a request to cooperate; and (ii) that this non-compliance is grave enough to prevent the Court from exercising its functions and powers under the Statute. It is only when the Chamber has established that both conditions are met that it may proceed to consider whether to refer the State to the Assembly of States Parties […] following a finding of non-compliance’. Moreover, the Pre-Trial Chamber II recalled that in 2015 the Appeals Chamber clarified that ‘the scope of a Chamber’s discretion under article 87(7) of the Statute comprises both’. Most notably, while unlike what has happened with Italy, Mongolia sought consultations with the Court under article 97 ICC Statute, the Court held that for those consultations to be meaningful they must be timely whereas Mongolia only sought consultations a few days before Mr Putin’s official visit. As it is well-known, in that case the Chamber decided that Mongolia had failed to cooperate with the Court under article 87(7) ICC Statute and referred the case to the Assembly of States Parties pursuant to article 109 (4) of the Court’s Regulations.  A similar conclusion is a fortiori likely to be reached in the case of Italy, which has not even sought consultations with the Court.

Conclusions

The lack of substantial practice on the implementation of article 92 ICC Statute by both the States and the Court makes the case of Al-Masri particularly interesting, as it might provide the opportunity for the Court to clarify certain aspects of the obligations upon States Parties to the Rome Statute, while at the same time, hopefully aiming at an increasingly transparent ICC procedure. This case shows a still insufficient knowledge of the organs of states parties of the functioning of the Court, and possibly a need to consider a better formulation of the domestic legislation implementing the judicial cooperation obligations arising from the Statute. At the same time, it proves the need for the Court to make an effort in understanding substantial and procedural domestic laws that might practically hinder a State from cooperating with the Court. It remains to be seen whether Italy will submit any observations at all before the Court and, if so, whether there will be any change in the position adopted by the Minister of Justice before the Italian Parliament.

[1] C. Kress and K. Prost, ‘Article 92’ in K. Ambos (ed), Rome Statute of the International Criminal Court- Article-by-Article Commentary (4th Ed, Verlag Bech 2022) 2525, 2527.

[2] C. Ryngaert, ‘Article 59’ in K. Ambos (ed), Rome Statute of the International Criminal Court- Article-by-Article Commentary (4th Ed, Verlag Bech 2022) 1732, 1739.

[3] Ibid at 1740. Cf C. K. Hall and C. Ryngaert, ʻArticle 59ʼ, in Trifterer and Ambos, Commentary as cited in W. A. Schabas, ‘Article 59. Arrest proceedings in the custodial State/Procédure d’arrestation dans l’état de détention’ in The International Criminal Court: A Commentary on the Rome Statute (2nd Ed, OUP 2016) 902, 908.

[4] Ibid.

[5] W. A. Schabas, ‘Article 59. Arrest proceedings in the custodial State/Procédure d’arrestation dans l’état de détention’ in The International Criminal Court: A Commentary on the Rome Statute (2nd Ed, OUP 2016) 902, 908. 

[6] C. Ryngaert, ʻArticle 58ʼ in K. Ambos (ed), Rome Statute of the International Criminal Court- Article-by-Article Commentary (4th Ed, Verlag Bech 2022) 1710, 1721.

[7] Ibid at 1718.

[8] W. A. Schabas, ‘Issuance by the Pre-Trial Chamber of a warrant of arrest or a summons to appear/Délivrance par la chambre préliminaire d’un mandat d’arrêt ou d’une citation à comparaître’ in The International Criminal Court: A Commentary on the Rome Statute (2nd Edition, OUP 2016)