The Case of Osama Najim al-Masri, Former Director of the Mitiga Detention Centre : A Legal Analysis of Italy’s Challenge to the ICC and Its Implications for International Justice
"The failure to surrender individuals, such as the judicial police commander in western Libya, Osama Najim, to the International Criminal Court constitutes a serious violation of Article 89 of the Statute."
Gregory Thwan Dieudonée, lawyer at the Strasbourg Bar Association and member of the European Bar Association.
In a legal analysis, Grégory THUAN DIT DIEUDONNÉ, lawyer at the Strasbourg Bar Association, member of the Union of European Lawyers (UAE), and Chair of its Human Rights Committee, addresses the controversial release of Osama Najim, former Director of the Operations and Judicial Security Agency and former head of the notorious Mitiga detention center near Tripoli. Najim stands accused of crimes against humanity-including murder, rape, and torture-committed within Mitiga prison.
Osama Najim al-Masri was arrested in Turin, Italy, on 19 January 2025, under an arrest warrant issued by the International Criminal Court (ICC) for crimes against humanity and war crimes. However, on 21 January 2025, the Italian authorities released him, citing alleged “procedural violations.”
According to THUAN DIT DIEUDONNÉ, this decision constitutes a grave case of executive interference, in direct violation of Article 89 of the Rome Statute, and poses a serious threat to both the separation of powers and the rule of law.
He warns: “The non-surrender of individuals such as Osama Najim al-Masri to the International Criminal Court constitutes a serious violation of Article 89 of the Statute.” Such breaches undermine international justice and reinforce a climate of impunity for the most serious crimes.
Adala for All association strongly condemned Najim’s release in a statement dated 24 January 2025, urging the Libyan authorities to immediately surrender him to the ICC in order to ensure justice and accountability.
The Case of Osama Najim al-Masri, Former Director of the Mitiga Detention Centre : A Legal Analysis of Italy’s Challenge to the ICC and Its Implications for International Justice
Obligations of States Parties under the Rome Statute
States Parties to the Rome Statute are obligated to comply with requests from the International Criminal Court (ICC), including those made under Article 89 of the Statute, which explicitly requires compliance with requests for the arrest and surrender of individuals against whom arrest warrants have been issued. Failure to surrender individuals—such as Osama Najim al-Masri—to the ICC constitutes a serious breach of Article 89.
This obligation entails full cooperation with the Court, including actions such as the seizure of evidence or devices carried by the suspect that may contain relevant information, as provided under Articles 93(1)(h) and 99(1) of the Statute, and the transmission of such evidence to the Court. It also includes the provisional arrest of suspects and communication of the measures taken to the Court.
In cases where a State encounters difficulties in executing these requests, Article 97 of the Statute requires the State to promptly engage in consultations with the ICC to resolve the issues. These obligations are integral to the proper functioning of the Court and the enforcement of international justice. Non-compliance undermines the objectives of the Rome Statute and the broader pursuit of accountability for serious international crimes.
Sanctions and Consequences in the Event of Breach
It is imperative to recognize that non-cooperation by a State Party significantly impedes the ICC’s ability to fulfill its core mandate: holding individuals accountable for the gravest crimes of concern to the international community. Despite numerous active investigations, the ICC continues to face substantial challenges due to the lack of arrests. Currently, more than 30 individuals remain subject to outstanding ICC arrest warrants across multiple global situations.
Under the Rome Statute, States Parties are legally bound to cooperate fully with the Court, particularly in executing arrest warrants. This obligation is critical to preserving the credibility and effectiveness of the ICC in addressing mass atrocities, including crimes such as torture, rape, and murder. Article 87(7) grants the Prosecutor the authority to request the Court to issue a formal finding of non-compliance. Where such a finding is made, the matter may be referred to the Assembly of States Parties or, where applicable, to the United Nations Security Council.
In theory, such referrals carry legal, political, and reputational consequences for the non-compliant State. These may include diplomatic censure, international criticism, or the imposition of political sanctions by other States or international bodies.
In 2012 and 2017, the ICC issued multiple findings of non-compliance against States Parties that failed to arrest and surrender former Sudanese President Omar al-Bashir. Notably, the Court referred the non-cooperation of Chad, Kenya, Djibouti, Malawi, Uganda, and Jordan to both the United Nations Security Council and the Assembly of States Parties. In 2016, the ICC referred the Government of Kenya to the Assembly for failing to comply with its obligations under the Rome Statute in the case against President Uhuru Kenyatta. In 2024, the ICC determined that Mongolia had failed to arrest and surrender Vladimir Putin during his visit—constituting non-compliance under Article 87(7)—and referred the matter to the Assembly. The procedure against Italy is the most recent example.
A finding of non-compliance may be appealed by the State concerned. This occurred in 2019, when Jordan successfully appealed the decision to refer its case to the Assembly.
“In a split decision, the Appeals Chamber confirmed that Jordan had violated its international obligations by failing to arrest al-Bashir but concluded that Pre-Trial Chamber II had improperly exercised its discretion in referring Jordan for non-cooperation, as it had not treated South Africa in the same manner, and because Jordan had sought to consult the Court on whether arresting al-Bashir would conflict with its other international obligations, particularly those relating to the immunity of heads of state.” (1)
Notably, this case gave the Appeals Chamber the opportunity to affirm that, although Sudan is not a party to the Rome Statute, it is a Member State of the United Nations and is therefore bound by the authority of the UN Security Council. Consequently, Sudan cannot invoke head-of-state immunity in relation to ICC-issued arrest warrants.
It is also worth noting that Rule 103 of the Rules of Procedure and Evidence—concerning amicus curiae (third-party interventions)—applies to these proceedings. As such, any interested third party, including NGOs, academics, and other stakeholders, may be granted leave to intervene by the ICC as early as the pre-trial stage. For example, in the al-Bashir case involving Jordan, multiple amicus curiae submissions were accepted, mainly from academic experts and the African Union, to provide legal arguments on head-of-state immunity.
It remains to be seen whether the European Union, the Council of Europe, or other States will be willing to take a formal stance in the current proceedings against Italy and, more recently, Hungary.
Furthermore, it may be possible for a Libyan NGO to request leave to submit an amicus curiae brief before the Court. To the best of our knowledge, no such intervention was made in the proceedings against Mongolia regarding Mr. Putin or against Hungary regarding Mr. Netanyahu.
The ICC’s Bureau of Non-Cooperation continues to report on these procedures and their outcomes.
Conclusion
In conclusion, it is imperative to reaffirm the strength of international public law, its legally binding nature, and the absolute obligation of all concerned Member States to respect and uphold it. Only through full compliance with the Rome Statute can the international community ensure justice and accountability for the most serious crimes.
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