Italy did not abide by its international obligations when it failed to surrender an arrested suspect to the International Criminal Court (ICC) in The Hague in relation to the Almasri affair, the Libyan general accused of crimes against humanity who was first detained and then released and repatriated by Italian authorities, the Hague-based tribunal has determined.

The case regards Njeem Osama Almasri, who was arrested on an International Criminal Court (ICC) warrant at a hotel in Turin at dawn on January 19 and was returned to Tripoli on a state flight following his release on a technicality by a Rome appeals court on January 21.

Almasri, who has been sacked as the head of Libya's judicial police, is accused of torture, rape and murder in relation to his management of a detention center for migrants in Tripoli.

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Government has until October 31 to provide new explanations

The pre-trial chamber of the ICC on October 17 published a document regarding the management of the case by Italian authorities, with the majority of the panel deciding to defer "its determination as to whether the matter of Italy's non-compliance with the request for arrest and surrender of Mr Njeem should be referred to the Assembly of States Parties or to the United Nations Security Council."

In the document, the judges asked the government led by Premier Giorgia Meloni to provide by October 31 information on any domestic proceedings relevant to the case, and an indication of the impact that these proceedings could have on Italy's future cooperation with the Court in the execution of collaboration requests for the arrest and surrender of suspects.

In its conclusions, the three-judge panel wrote that the chamber "unanimously finds that Italy did not act with due diligence and did not use all reasonable means at its disposal to comply with the request for cooperation" filed by the ICC.

"Italy has not advanced any argument to explain its failure to communicate and cooperate with the Court to resolve any issues arising from the formulation of the Arrest Warrant or the national procedure for surrender", wrote the judges.

"Italy has also not provided any valid legal reason or reasonable justification for having immediately transferred Mr. Njeem back to Libya, instead of first consulting with the Court or seeking to rectify any perceived flaws in the process to arrest," the document went on to say.

According to the judges, in spite of the time at its disposal and the repeated attempts to communicate with the Italian Justice Ministry, which is in charge of relations with the ICC, Italy did not contact the Court to resolve "potential obstacles" concerning the arrest warrant, "preventing the Court from exercising its functions and powers under the Statute".

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Italian government's motivations rejected by ICC

The Court highlighted that the government motivated Almasri's expulsion from the Italian territory, ordered by the interior minister, "for reasons of public policy and national security", noting however that it believed Italy only provided "very limited information in support of its contention".

Furthermore, it added that "matters of domestic law cannot be invoked by a State Party to justify non-compliance" with the ICC.

While outlining the violation, the judges chose not to immediately defer the case to the Assembly of State Parties or to the UN Security Council, considering the "complexity" of the case.

Thus the majority of judges - Judge Flores Liera appended a partially dissenting opinion - decided to grant the government time until the end of the month to provide further information on "any domestic proceedings relevant to the present case", such as the proceeding opened by the Tribunal of Ministers regarding Justice Minister Carlo Nordio, Interior Minister Matteo Piantedosi and Cabinet Secretary Alfredo Mantovano, whose brief puts him in charge of Italy's intelligence services, accused of aiding and abetting Almasri's return to Libya.

The justice minister was also accused of failing to perform his duties.

The Lower House Prosecution Authorizations Committee has rejected the ministerial court's request to proceed against Nordio, Piantedosi and Mantovano in relation to the affair. The Tribunal of Ministers is a judicial body tasked with handling cases involving government members.

Premier Giorgia Meloni was notified in August that the case against her over Almasri's release had been dropped.

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