This post follows the recent blog post by Dr Giulia Pecorella and complements her analysis on the legal implications of the case of Almasri and Italy’s lack of cooperation with the International Criminal Court (hereafter ‘the ICC’). The focus of the post is twofold. Firstly, it discusses the Italian cooperation legislation with the ICC and the interpretation of such legislation provided in the Order of the Court of Appeal of Rome on the (denial of) confirmation of Almasri’s arrest (hereafter ‘the Order’) executed by the Italian police proprio motu. Secondly, the post offers a critique of the legal arguments presented in the Request to Institute Proceedings Pursuant to Article 70 of the Rome Statute against Ms. Giorgia Meloni, Mr. Carlo Nordio, and Mr. Matteo Piantedosi for offences under Article 70 ICC St (hereafter ‘the Request’) submitted on 5 February 2025 by the representative for one of the victims in the Almasri case. The aim of the post is to highlight inaccuracies in the interpretation and application of the Italian legal framework on judicial cooperation with the ICC and lacunas in the arguments advanced in the Request against the members of the Italian Government. 

The Arrest and Release of Almasri: A brief timeline

The timeline of the arrest and release of Almasri has been clearly summarised in Dr Pecorella’s post. Here, only a brief outline of the timeline is presented to better understand the context in which the Order was issued, and the Request submitted.

On 18 January 2025, after having received information that Mr. Almasri Njeem had entered the Schengen zone, the ICC issued an arrest warrant against Almasri and transmitted it to six European countries – including Italy. In the early hours of Sunday 19 January 2025, after attending a football match in Turin, Almasri was arrested by the Italian police (Digos) pursuant Article 716 of the Italian Code of Criminal Procedure, which provides for the possibility of the police to proceed with the arrest of individuals subject to international arrest warrants for extradition purposes on their own initiative. Following the arrest, the police transmitted the relevant documentation to the Court of Appeal of Rome (hereafter ‘the Court’) for the confirmation of the pre-trial detention of Almasri.

On 21 January 2025, the Court requested the Attorney General’s (Procura Generale) legal opinion on whether to confirm the arrest and the applicable law. The Attorney General invited the judges not to confirm the arrest due to procedural irregularities in apprehending Almasri and the lack of intervention by the Minister of Justice. The Court accepted the opinion of the Attorney General and subsequently ordered the immediate release of Almasri, who was then expelled and repatriated to Libya.

On 5 February 2025, one of the victims in the Almasri case submitted a Request to the Office of the Prosecutor to open an investigation against Giorgia Meloni (Italian Prime Minister), Carlo Nordio (Italian Minister of Justice), and Matteo Piantedosi (Italian Minister of the Interior) for offences against the administration of justice ex Article 70 ICC St. The Request alleges that Meloni, Nordio, and Piantedosi intentionally defy their international and national obligations to surrender Almasri to the ICC in order to shun him from the Court’s jurisdiction.

The Framework for Italy’s Cooperation with the ICC and the Court’s Reasoning in its Order

The first focus of this post is the controversial Order to release Almasri issued by the Court of Appeal of Rome on 21 January 2025. In the Order, the Court presented a very restrictive interpretation Italian cooperation law with the ICC, raising several questions on the effectiveness and adequacy of the domestic implementation of the Rome Statute. To fully understand the reasoning adopted by the Court, it is worth examining the scope and content of the relevant Italian legislation, Law No. 237 of 2012.

Law 237/2012 (hereafter ‘the Law’) establishes the framework for Italy’s cooperation with the ICC, with the aim of implementing the State’s obligations under the Rome Statute. Article 2 of the Law identifies the political organ, the Minister of Justice, as the ‘sole’ organ in charge of dealing with cooperation requests from the ICC and mandates its involvement in the processes of extradition, cooperation in investigation, and execution of judgments.[1]

In relation to the execution of an ICC Warrant of Arrest, Articles 11 and 14 of the Law outline the procedure for applying precautionary measures prior to surrender. Such a procedure requires the completion of the following steps: (1) Receipt of the ICC Warrant of Arrest by the Minister of Justice; (2) Transmission of the documentation by the Minister of Justice to the Attorney General’s Office at the Court of Appeal in Rome; and (3) Request of the Attorney General to the Court of Appeal for the application of the precautionary measure (i.e., pre-trial detention).[2]

In the case of Almasri, the question brought to the attention of the Court concerned specifically the interpretation of Article 11 of the Law and whether the Law allows for deviations from such procedure in cases in which an arrest is initiated by the police proprio motu ex Article 716 Code of Criminal Procedure. The Court responded in the negative. In the Court’s opinion, Article 11 of the Law analytically prescribes a specific extradition procedure that mandates the necessary interlocution between the Minister of Justice and the Attorney General’s Office at the Court of Appeal in Rome, in deference to the principle enshrined in Article 2(1) of the Law.[3] Consequently, police-initiated arrests without ministerial intervention (as those prescribed by Article 716 Code of Criminal Procedure) ought to be considered in breach of the requirements set by the Law. In its reasoning, the Court specifically stated that:

“Since the procedure for the application of the precautionary measure has been specifically defined in all its passages by Law 237/2012, it follows the application of the principle ubi lex voluit dixit, by virtue of which the arrest on the initiative of the police in the procedure of surrender on a warrant of arrest issued by the ICC must be considered excluded insofar as it is not expressly provided for by the special legislation”.[4]

While the Court’s argumentation has a certain literal logic, it appears to be questionable. Indeed, the interpretation effectively bypasses Article 3(1) of the Law, which permits the application of the provisions of Code of Criminal Procedure (lex generalis) in cases of lacunae in the cooperation legislation, unless otherwise specified by the Law (lex specialis).[5] The Court’s reliance on the principle ubi lex voluit dixit expressly disregards the provision of Article 3(1), effectively voiding it of its purpose, and introduces an unnecessary limit to the police powers to act proprio motu to facilitate cooperation with the ICC. Considering the seriousness of the cases dealt by the ICC, such a limitation is hard to justify.  

Furthermore, the Court’s narrow interpretation of the Italian cooperation law with the ICC appears to create a clear discrepancy with modern practices of facilitated judicial cooperation, especially when compared to law governing the European Arrest Warrant.

Unlike Law 237/2012, the 2002 Council of the European Union’s Framework Decision on the European Arrest Warrant and the Surrender Procedures adopts a more streamlined process, bypassing political organs and placing judicial authorities at the centre of cooperation. As observed by Chantal Meloni, had Almasri been subject to a European Arrest Warrant from another European country, the procedure would have been much swifter, with direct communication between judicial authorities and without ministerial intervention.

Compared with the European Arrest Warrant, the procedure established by Law 237/2012 appears entirely paradoxical. Intra-EU requests for the extradition of individuals accused of common offences are processed much faster than those concerning atrocity crimes falling within the ICC’s jurisdiction. This discrepancy may be explained by the divergent relationships between Italy and the EU on one hand, and Italy and the ICC on the other. As an EU Member State, Italy is bound by EU law, which takes primacy over national law in areas where the EU has competence. In criminal procedure, the EU’s competence to harmonise national criminal legislation, including judicial cooperation, is enshrined in Article 82 of the Treaty on the Functioning of the European Union (TFEU). Consequently, Italy has limited discretion in determining the optimal extradition procedure.

By contrast, Italy has not delegated sovereignty in criminal matters to the ICC. However, by signing the Rome Statute, Italy has agreed to be bound by its provisions, including the obligations to cooperate with the Court. The design of a cooperation model so dependent on the role of political organs and the exclusion of streamlined extradition processes—such as the one established under Article 716 of the Code of Criminal Procedure, as interpreted by the Court of Appeal of Rome—arguably places Italy in breach of its obligations to cooperate under Articles 86 et seq. of the ICC Statute.

This case places Italy in a precarious position and may lead to violations of its obligations under the Rome Statute. The Italian legal framework’s reliance on political organs hinders effective cooperation with the ICC. A more flexible approach, akin to the European Arrest Warrant model, would better align with modern practices of facilitated judicial cooperation and reinforce Italy’s commitment to international criminal justice.

The Almasri Case and Offences Against the Administration of Justice under Article 70 ICC Statute

In addition to questioning the effectiveness of the Italian legal framework on cooperation with the ICC, the Almasri case has brought renewed attention to the intersection of international criminal law and domestic legal systems in the context of offences against the administration of justice. The Request to open an investigation against Giorgia Meloni, Carlo Nordio, and Matteo Piantedosi for offences against the administration of justice provides an opportunity to reflect on the scope of the ICC’s ancillary jurisdiction and its applicability to the case at hand.

Article 70 ICC Statute: Offences Against the Administration of Justice

Article 70 of the ICC Statute represents a unique provision within the international criminal justice system.[6] Before the adoption of the Rome Statute, none of the statutes of the international criminal tribunals—from Nuremberg to the ad hoc Tribunals—explicitly provided for jurisdiction over offences against the administration of justice.[7] However, this did not prevent the ad hoc Tribunals from exercising their ‘inherent jurisdiction’ to address cases of contempt of court and obstruction of justice derived from their judicial function.[8]

Departing from this traditional approach, Article 70 of the ICC Statute explicitly defines the Court’s jurisdiction over offences against the administration of justice. These offences are categorised into three broad groups: (1) providing false testimony or presenting false evidence (Article 70(1)(a)-(b)); (2) interference with witnesses (Article 70(1)(c)); and (3) offences by or against officials of the Court (Article 70(1)(d)-(f)). The provision requires that the conduct be committed with intent, limiting its scope to deliberate acts.

Rule 162 of the ICC’s Rules of Procedure and Evidence further regulates the exercise of the Court’s jurisdiction over such offences, listing factors that the Court should consider when deciding whether to exercise jurisdiction, including the availability and effectiveness of prosecution in a State Party and the seriousness of the offence.

Under Article 70(4) of the ICC Statute, States Parties are required to ensure that their own criminal laws regulating the integrity of investigative or court proceedings extend to offences against the administration of justice committed on the State’s territory or by its nationals against the ICC. Italy has complied with this obligation by amending its Penal Code to introduce offences against the administration of justice concerning the ICC,[9] including obstruction of justice (Favoreggiamento).

Having outlined the provision of Article 70, the following section critiques the arguments presented in the Request to assess their soundness.

Request to Institute Proceedings Pursuant to Article 70 of the Rome Statute against Ms. Giorgia Meloni, Mr. Carlo Nordio, and Mr. Matteo Piantedosi: Shooting for the Stars?

The Request alleges that Italian Prime Minister Giorgia Meloni and Ministers Carlo Nordio and Matteo Piantedosi violated Article 70(1)(c) of the ICC Statute (destruction or tampering of evidence) by obstructing or interfering with Almasri’s attendance and testimony in court. According to the Request, the Italian authorities intentionally sought to prevent Almasri’s surrender and ensure he remained outside the ICC’s reach.

Two aspects of the Request merit further examination: (i) the alleged link between the offences committed by the Italian authorities under Article 70 and the crimes allegedly committed by Almasri in Libya under Articles 7 and 8 of the ICC Statute; and (ii) the necessity to establish a case before the ICC rather than delegating the matter to the Italian authorities due to Italy’s alleged unwillingness to investigate and prosecute Almasri’s crimes.

Regarding the first point, the Request claims that the Italian authorities’ disregard for the ICC arrest warrant not only constitutes obstruction of justice but also evidences complicity in the crimes committed by Almasri.[10] The Request suggests that the Italian authorities aimed to prevent Almasri from providing incriminating information about their own involvement in the crimes and to ensure the continuation of those crimes.[11]

To support this argument, the Request cites the 2023 Report by the UN-mandated Independent Fact-Finding Mission on Libya, which alleged that senior Italian and EU officials were involved in ongoing crimes against humanity against migrants in the Central Mediterranean and Libya.[12] However, while the Report acknowledges the connection between Libya and EU Member States in managing the migration crisis, it does not provide a solid foundation for establishing legal complicity against the Italian authorities.

It cannot be denied that the EU’s management of the migration crisis has harshly been criticised in the past, and that Italy plays a central role in implementing such strategy. While the EU and its Member States, including Italy, may bear moral responsibility for the violations perpetrated in Libya, the Request does not offer strong arguments in favour of the alleged legal complicity of the three Italian authorities listed in the document. On this point, the Request seems to stretch the argument too far instead of focusing on the more plausible claim of obstruction of justice.

The Request fails to engage with the legal requirements for establishing complicity liability under the ICC Statute, not offering any reference to the test for aiding and abetting or any other forms of participation in the commission of crimes under the Court’s jurisdiction. This lack of legal engagement weakens the legal argumentation proposed in the Request. Additionally, it opens the Request to attack from those who see it as a mere political statement.

The Request also uses the alleged complicity to justify the ICC’s exercise of jurisdiction under Article 70. It claims that the link between Article 70 offences and crimes against humanity necessitates the ICC’s intervention, given Italy’s lack of “effective prosecution” and its “failure to investigate the crime of the Suspects against ‘migrants’”.[13] Specifically, it observes that:

52. The unbreakable link between the alleged Article 70 offences and the Crimes Against Humanity which the [Fact-Finding Mission] found the Suspects are committing, means that only the OTP can properly investigate these interrelated crimes. 23 years after the Rome Statute entered into force, Italy has still not incorporated crimes against humanity into its criminal code. In fact, it was one of the Suspects, Prime Minister Giorgia Meloni, who blocked the previous government’s legislation on the matter, ensuring the Italian judiciary will remain one of few States Parties who did not incorporated Crimes Against Humanity [in] their national legislations. In these circumstances, Italy cannot resort to the principle of complementarity in this case.[14]

Once again, the Request conflates the offences under Article 70 and the crimes under Articles 5 to 9 and equates the ability and/or willingness to investigate and prosecute offences against the administration of justice with the ability and/or willingness to investigate and prosecute atrocity crimes. While the lack of adoption of a specific legislation on atrocity crimes makes Italy vulnerable from attacks on its ability to prosecute international core crimes, the same cannot be stated in relation to offences against the administration of justice. In relation to the latter, Italy remains the forum conveniens as its Criminal Code provides a solid legal framework for the investigation and prosecution of such offences.

Indeed, it is significant that the Prime Minister Giorgia Meloni and the Ministers Carlo Nordio and Matteo Piantedosi are already subject to proceedings for obstruction of justice and omission of official acts in front of the Tribunal of Ministers, a specialized judicial body within the Italian legal system responsible for offences committed by the Prime Minister and government ministers in the exercise of their official functions.

By conflating the Italian authorities’ ability and willingness to investigate obstruction of justice with their ability and willingness to prosecute atrocity crimes, the Request weakens its own argument. Furthermore, it is relevant to notice that the Italian judiciary has consistently demonstrated its ability and willingness to scrutinise government actions related to the management of the migration crisis, as seen in the case against former Minister Matteo Salvini and the recent ruling on the Italian plan to send asylum seekers to Albania.

Therefore, the Request’s claim that the ICC’s intervention is necessary to bypass domestic courts appears unconvincing. The Italian legal system remains the appropriate forum for addressing the alleged offences against the administration of justice, while the broader allegations of complicity in crimes against humanity require further substantiation.

Conclusion

The Almasri case starkly highlights the limitations of Italy’s current legal framework for cooperation with the ICC, particularly the restrictive interpretation of Law No. 237/2012 as presented in the Court of Appeal of Rome’s Order. This narrow reading not only undermines Italy’s obligations under the Rome Statute but also exposes structural weaknesses in a system that places undue reliance on political intervention rather than judicial autonomy. The case brings into sharp focus the urgent need for reform in Italy’s approach to judicial cooperation, suggesting that a more streamlined, flexible system akin to the European Arrest Warrant model would be a significant step forward in ensuring Italy meets its international obligations in a timely and effective manner.

The case also offers the opportunity to reflect on the ICC’s ancillary jurisdiction over offences against the administration of justice and the potential misuse of Article 70 ICC St. Indeed, the Request to open an investigation against members of the Italian Government appears to use the alleged obstruction of justice as a tool to engage with the broader issue of Italy’s (and Europe’s) complicity in crimes against migrants. Its lack of a solid legal foundation on this latter point ultimately undermines its value, making it more akin to a political statement than a court document.

The potential complicity between the EU and its Member States in the mismanagement of the migration crisis is undoubtedly worth exploring. However, such an inquiry requires a more in-depth consideration of the applicability of the aiding and abetting standard to specific individuals and in relation to specific conduct. This complex legal assessment cannot be underplayed or simplified in a legal document without compromising its credibility and weakening the broader cause of accountability.

[1] Legge 20 Dicembre 2012 No. 237 – Norme per l’adeguamento alle disposizioni dello statuto istitutivo della Corte penale internazionale (entered into force on 23/01/2013), Article 2.

[2] Ibid Articles 11 and 14.

[3] Corte di Appello di Roma, Sez. IV, Ordinanza ex. Legge 237/2012 CPI, 21 gennaio 2025, page 2.

[4] Ibid page 3. [Translation provided by the author] [Italic in the original]

[5] Legge 20 Dicembre 2012 No. 237 – Norme per l’adeguamento alle disposizioni dello statuto istitutivo della Corte penale internazionale (entered into force on 23/01/2013), Article 3(1).

[6] William Schabas, The International Criminal Court: A Commentary on the Rome Statute. 2nd ed (OUP 2016) 1100.

[7] Ibid 1102.

[8] Tadić (IT-94-1-A-R77), Judgment on Allegations of Contempt against Prior Counsel, Milan Vujin, 31 January 2000, para. 13. See Schabas (n 6) 1102.

[9] Legge 20 Dicembre 2012 No. 237 – Norme per l’adeguamento alle disposizioni dello statuto istitutivo della Corte penale internazionale (entered into force on 23/01/2013), Article 10.

[10] ICC, Victim A/75000/23, Situation in Libya, Request to Institute Proceedings Pursuant to Article 70 of the Rome Statute against Ms. Giorgia Meloni, Mr. Carlo Nordio, and Mr. Matteo Piantedosi, ICC-01/11, para 9.

[11] Ibid.  

[12] Ibid para 6.

[13] Ibid para 51.

[14] Ibid para 52. [Emphasis added]