Maria Crippa and Matteo Colorio
Consequences
In the Elmasry case, Italy breached its international obligation to cooperate with the ICC. Italy failed to surrender the accused to the Court and has apparently evaded the consultation obligation under Art. 97 Rome St. The ICC’s press release reveals that the Court “is seeking, and is yet to obtain, verification from the authorities on the steps reportedly taken.” The competent Pre-Trial Chamber could bring Italy’s failure to cooperate to the attention of the UN Security Council, which referred the Libyan situation to the ICC in 2011. The Council could issue a binding resolution acting under Chapter VII or even adopt sanctions. However, previous experiences tell us the Council will unlikely act upon the non-cooperation.
Given that Elmasry’s arrest warrant also encompasses the crime of torture, Italy has also breached its obligation to prosecute or extradite Elmasry to a state willing and able to do so under Article 7.1 of the Convention against Torture (CAT). Libya will almost certainly not initiate proceedings against him. The aut dedere aut judicare is an obligation erga omnes partes, and thus – as in Belgium v. Senegal – Italy’s state responsibility could be upheld by the International Court of Justice on the initiative of any other CAT’s State Party.
At the domestic level, Elmasry’s release and expulsion could also trigger the individual responsibility of senior figures in the Italian government. On 28 January, Rome’s Prosecutor Office received a criminal complaint alleging that the Italian Prime Minister, the Undersecretary to the Prime Minister’s office and the Ministers of Justice and Interior are responsible for the crimes of aiding and abetting Elmasry to evade justice (Art. 378 Criminal Code, CC) and of embezzlement of public funds for the use of the Italian intelligence’s plane to repatriate him to Libya (Art. 314 CC).
Prime Minister Giorgia Meloni announced in a video that she has been served with a notice of investigation. Under Italian law, a notice of investigation constitutes a procedural prerequisite not implying any finding of criminal wrongdoing on the part of the recipient but aiming to guarantee his or her right to defence. A different act is the formal communication to members of the government of criminal complaints received against them, required – prior to any investigations – by Art. 6.2 of the Constitutional Law 1/1989.
This latter communication – not the notice of investigation – was received by Prime Minister Meloni and others in connection with the Elmasry case. It should be noted that Art. 96 of the Italian Constitution and Constitutional Law 1/1989 grant the Prime Minister and the other Ministers of the government relative immunity from prosecution for crimes allegedly committed as part of their official functions. The authority to allow the investigation to proceed is vested in the Parliament, unless the individuals concerned voluntarily waive their immunities.
Conclusion
In 2023, the Italian Prime Minister declared the government’s commitment to prosecute high-level migrant smugglers “all over the world.” The Elmasry case stands in sharp contrast with this stance. The Italian handling of this case frustrates the prospects of arresting Elmasry, at least for the foreseeable future. His triumphant return to Libya also reinforced his sense of impunity, along with that of many other perpetrators of heinous crimes around the world.
The Elmasry precedent undermines the mutual trust that underpins the functioning of the Joint Team, as the participating national authorities may question the Italian commitment to the fight against impunity for extreme violence against migrants.
The lack of sound legal justifications for the decision suggests that political considerations influenced the matter, possibly reflecting the complex relationship between Italian and Libyan authorities. The Italian government seemed eager to resolve the matter as quickly as possible, as also the immediate expulsion of Elmasry to Libya for “reasons of state security” suggests. It is questionable how bringing Elmasry back to Libya, the state where he is accused of having committed heinous crimes, can effectively address security concerns that, according to the Italian government, originate in those very crimes.
Overall, the Elmasry case reveals that, due to legal and political shortcomings, Italy failed once again to discharge its share of the burden in the international criminal justice system. Rome mutinied just as the first ICC suspect was apprehended on Italian soil.
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Maria Crippa is a postdoctoral fellow in international criminal law at the University of Milan and a visiting researcher at the University of Tilburg.
Matteo Colorio is a PhD candidate in international law at Sant’Anna School of Advanced Studies in Pisa and a visiting researcher at the University of Tilburg.]
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