In late 2024 and early 2025 the International Criminal Court (ICC) issued several arrest warrants in the context of politically sensitive investigations, including those regarding the ongoing armed conflicts in Ukraine and Palestine.[1] Some of these decisions concern alleged perpetrators holding high-level political positions in States that are close allies of Italy, such as Israel. Furthermore, in January 2025, Italy was requested by the Court to execute on its territory an arrest warrant issued against General Osema Almasri Najeem in the context of the investigation in Libya. Italy’s recent behaviour in relation to arrest warrants in the situations in Palestine and Libya is indicative of a shift from the traditionally supportive attitude to a more cautious (and lees cooperative) one in its relations with international criminal tribunals. This contribution analyses the Italian Government’s conduct, which shows a discrepancy between the rhetorical support for the ICC and the lack of actual cooperation in the execution of its requests.

The Arrest Warrants in the Investigation Relating to the State of Palestine

On 20 May 2024, the Prosecutor of the ICC applied to the Pre-Trial Chamber (PTC) of the ICC for five arrest warrants in the context of the investigation regarding the State of Palestine.[2] The investigation was opened in 2021, well before the events of 7 October 2023 and the ensuing Israeli military offensive on Gaza.[3] On 21 November 2024, PTC I issued three arrest warrants for war crimes and crimes against humanity against one leader of Hamas, Mohammed Diab Ibrahim Al-Masri (“Deif”), and two members of the Israeli Government, Benjamin Netanyahu and Joav Gallant. The applications regarding two other Hamas leaders, Yahya Sinwar and Ismail Haniyeh, were withdrawn following confirmation of their death.[4] Proceedings against Deif were terminated on 26 February 2025 for the same reason.[5]

The issuance on the same day of arrest warrants against the leadership of an organisation listed as terrorist by many States and international organisations and the leaders of a close ally of the West was met with ambiguous or critical reactions by various States, including Italy.[6] Some States traditionally supportive of the Court criticised what they described as the alleged “equivalence” drawn by the warrants between the two sides of the conflict. On 22 November 2024, the President of the Council of Ministers, Ms. Giorgia Meloni, issued a statement commenting the issuance of the warrants.[7] She stated:

Over the coming days, I will be looking into the motivations that led to the International Criminal Court’s ruling. Its motivations should always be objective and not political in nature. […] This Government remains firm on one point: there can be no equivalence between the responsibilities of the State of Israel and the terrorist organisation Hamas.

This position was endorsed in the Final Statement of the G7 Meeting held on 25-26 November 2024, according to which “there can be no equivalence between the terrorist group Hamas and the State of Israel”.[8]

On 27 November 2024, various parliamentary questions were tabled at the Chamber of Deputies (388th Meeting, XIX Legislature), asking the Government to clarify its position on the matter.[9] The Minister of Foreign Affairs and International Cooperation, Mr. Antonio Tajani, explained the Government’s position as follows:

We recognise the importance of the International Criminal Court as an independent institution. We have taken note of its decision to issue an arrest warrant against Israeli Prime Minister Netanyahu and former Defence Minister Gallant. We believe it is essential to examine the reasons for this decision in detail. We are conducting a legal assessment, in coordination with other European Union countries, also in relation to the prevalence of general international law on immunities. [… W]e reiterate that the role of the International Criminal Court must remain exclusively legal.

At the same meeting, the concept was reiterated in other replies, in which the Minister confirmed that “[t]he Government respects the Court and supports it, but it is also convinced that it should perform a legal and not a political role”. Mr. Tajani also expressed the Government’s view on the purported “equivalence” drawn by the arrest warrants between Hamas and the State of Israel: “we firmly reject any attempt to equate the leader of a democratic country with a terrorist organisation […]. Equating the two parties is unacceptable and risks compromising any effort to achieve peace. […] There is no judicial path to peace”.

President Meloni echoed this position on 18 December 2024, during a debate at the Senate of the Republic ahead of the European Council of 19 and 20 December 2024 (255th Meeting). Focusing on the impact of ICC warrants on ongoing conflicts and immunities, she stated:

these rulings on Israel and also on Ukraine intervene in an open conflict for the first time. […] So […] intervening in an open conflict makes one a party to that conflict, effectively raising issues that we must consider from a jurisdictional perspective, because the immunity for heads of State is not something I invented: it has always existed in international law […].

Minister Tajani, on 15 January[10] and again on 7 February 2025 in interviews to Italian newspapers, made reference to the position expressed by other European countries such as France and stated that in his view it would be impossible to arrest Netanyahu in Italy, due to practical obstacles and to the need to respect his immunity. He said: “[e]ven if Netanyahu would visit Italy, how could we arrest him? Can you imagine? Shall we engage in a firefight with the Mossad? […] You don’t arrest heads of State [sic]: we must be realist”. On the same occasion, Mr. Tajani added that “it is absolutely legitimate to criticise certain behaviours of the Court, which took political decisions”.[11] Neither Minister Tajani nor President Meloni clarified how the Government distinguishes between legitimate “legal” decisions and ultra vires “political” decisions of the Court. This may have to do with the Government’s assessment on the potentially negative impact of these decisions on the prospects of a ceasefire and negotiated solution of the conflict, and/or with the decisions’ limited – for the time being – chances of enforcement.[12]

Italy’s position on the issue of immunity seems in contrast with the interpretation of the Rome Statute provided by the Appeals Chamber – recently affirmed by a PTC – with regard to the relation between Articles 27 and 98 of the Statute. According to these decisions, a State Party to the Rome Statute cannot invoke the existence of a conflicting obligation deriving from customary law or bilateral agreements in order to deny cooperation in the arrest and surrender of sitting heads of State or government, including of States that are not parties to the Statute, when so requested by the Court.[13] Italy had not taken a clear stance on this matter in the past. The issuance of the arrest warrants against the Israeli leadership prompted many States, including European States traditionally supportive of the Court, to take an open stance on the issue of immunity, adopting a more nuanced (and sometimes critical) position vis-à-vis the Court’s interpretation.[14]

The Decision not to Surrender Osema Almasri Najeem and the Failure to Cooperate with the ICC

The Government’s approach to the cooperation with the ICC was tested in early 2025 in the matter regarding Osema Almasri Najeem, a Libyan general associated with the so-called Special Deterrence Forces/RADA and who has been in charge of various detention centres, such as the Mitiga Prison in Tripoli. The ICC Prosecutor applied for an arrest warrant against Almasri on 4 October 2024. On 18 January 2025, the PTC issued an arrest warrant under seal for war crimes and crimes against humanity, following notice that Almasri was traveling across various European countries. A request for provisional arrest pursuant to Article 92 of the Statute was sent to six countries, including Italy, together with an order of seizure of any materials to be found with the suspect.[15] Almasri was located in Turin and arrested by the Italian police on 19 January. The arrest was communicated to the Minister of Justice, Mr. Carlo Nordio, and to the Prosecutor General (PG) at the Court of Appeals of Rome for them to exercise their competences as per Law No. 237 of 20 December 2012 on the cooperation between Italy and the ICC.[16] Based on Articles 2, 4, 11, and 14 of the Law, the Minister is required to transmit the request for cooperation and the accompanying documents to the PG, who is then to request the precautionary detention of the suspect to the Rome Court of Appeals.[17] The Minister did not timely forward the acts and on 21 January 2025 the Court of Appeals, with the favourable opinion of the PG, released Almasri from custody, based on the alleged procedural irregularity of the arrest. Almasri was immediately expelled by a decree of the Minister of the Interior and repatriated to Libya onboard a State flight.

The Government’s decision to expel and repatriate Almasri was strongly contested by opposition forces and criticised by international criminal law scholars as a violation of the duties of cooperation with the Court.[18] Shortly after Almasri’s repatriation, Minister Tajani said to the press that the competent Ministers were going to “explain everything that was correctly done by the Italian Government” and that, in any event, “those who run [the Court in] The Hague are not the ‘Mouth of the Truth’ and it is possible to have different views”.[19] President Meloni, speaking to the press, stressed that “Almasri was released by a decision of the Rome Court of Appeals, not of the Government”.[20]

Minister Nordio, together with the Minister of the Interior, Mr. Matteo Piantedosi, informed the Chamber on 5 February 2025 on the matter (422nd Meeting). The Minister of Justice defended his discretionary decision not to promptly transmit the dossier to the competent judicial authorities, focusing inter alia on alleged formal defects in the transmission of the request for cooperation and legal errors affecting the warrant. He stated:

the role of the Minister is not simply that of a conduit for the requests coming from the Court; he is not a paper-pusher; he is a political body that must ponder the content of these requests […]. The more articulated and complex the request from the International Criminal Court, the greater the reflection must be, including a critical reflection, on its logical progression, its argumentative coherence, the details of the cited elements, and the coherence of the conclusions reached. [… T]his coherence is absolutely lacking, and that act, in our view, is radically null.

Despite the fact that the pertinent provisions of the Rome Statute and of the cooperation law seem to exclude any margin of discretion on the part of the executive and any power to review the merits of the arrest warrant,[21] Nordio insisted that the transmission to the PG in the circumstances of the case would have been “illegitimate, because it would have been based on a warrant that, according to the general principles of criminal procedure, was irrational and contradictory in the fundamental element of the structure of the crime”.

Minister Nordio reiterated this position before the Chamber during the discussion on a motion of no-confidence against him on 26 March 2025 (456th Meeting).[22] In particular, he insisted that the purported errors in the identification of the time of the alleged conducts led him to the conclusion that “the indictment is radically null in our legal system”. This position seems to be inconsistent with the principle enshrined in Article 27 of the Vienna Convention on the Law of Treaties, as well as with various provisions of the Rome Statute that preclude any such unilateral determination by domestic political and judicial authorities, prescribing consultative procedures if issues arise at the stage of execution of the requests for cooperation.[23]

As regards the immediate repatriation of Almasri, which precluded any possible detention in compliance with the procedure envisaged by the cooperation law as interpreted by the Court of Appeals, Minister Piantedosi explained:

After the arrest was not validated, it became clear to me that there was a possibility that Almasri could remain at liberty on national territory for an indefinite period, which I believed was not compatible with his profile of social danger […]. For these reasons, on 21 January, I adopted an expulsion order for reasons of public order and State security, pursuant to Article 13(1) of the Immigration Law […].

The behaviour of Italian authorities on the matter has come under scrutiny for failure to comply with the obligations to cooperate and with the duty to consult with the Court.[24] Proceedings under Article 87(7) of the Statute have been instituted and the Prosecutor has asked the PTC to find a possible violation of these obligations and to refer the matter of non-compliance to the Assembly of States Parties and the Security Council.[25]

Italy’s failure to give effect to the Court’s decisions in the Almasri case, as well as its position on the alleged impossibility of arresting Netanyahu due to immunity concerns, seem to contradict the position expressed by the country on 28 October 2024 on the occasion of the 79th Debate at the UN General Assembly on the “Report of the International Criminal Court”, according to which:

Italy has been at the forefront of the development of an effective international criminal justice system, and it considers the Court an indispensable institution […]. We also note with concern the serious challenges that the Court continues to face in relation to its requests for cooperation, including for the execution of its outstanding arrest warrants, and we call on States parties to comply with their obligations under the Rome Statute. We also stress the obligations under international law upon all UN Member States, in particular in cases referred to the Court by the Security Council.[26]

In conclusion, Italy’s ambiguous or openly defiant behaviour towards the enforcement of ICC’s decisions reveals a significant change of attitude towards the Court, which contradicts the State’s longstanding commitment to international criminal justice. This is further confirmed by the decision not to join initiatives in support of the ICC, promoted by States Parties in response to the sanctions imposed by the Trump administration.[27]

Luca Poltronieri Rossetti

A quotable version of this post was published in the Italian Yearbook of International Law: Poltronieri Rossetti, “The Enforcement of Arrest Warrants Issued by the International Criminal Court: Between the Duty to Cooperate and Realpolitik”, IYIL XXXIV (2024), 2025, pp. 426-432; available here.

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[1] All decisions and documents of the ICC are available here.

[2] Statement of ICC Prosecutor Karim A.A. Khan KC: Applications for arrest warrants in the situation in the State of Palestine, 20 May 2024.

[3] Statement of ICC Prosecutor, Fatou Bensouda, respecting an investigation of the Situation in Palestine, 3 March 2021; ICC, Decision on the “Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine”, ICC-01/18-143, 5 February 2021. The situation in the State of Palestine, with particular regard to post-7 October 2023 events, was further referred by several States on 17 November 2023 and 18 January 2024.

[4] ICC, “Situation in the State of Palestine: ICC Pre-Trial Chamber I issues warrant of arrest for Mohammed Diab Ibrahim Al-Masri (Deif)”, 21 November 2024.

[5] ICC, Decision terminating proceedings against Mr. Mohammed Diab Ibrahim Al Masri (Deif), ICC-01/18-417, 26 February 2025.

[6] For an overview of States’ positions on the matter, see Ingber, “Mapping State Reactions to ICC Arrest Warrants for Netanyahu and Gallant”, Just Security, 6 March 2025. On Italy’s position on the attacks of 7 October and Israel’s military offensive, see Cagol, “The Hamas Attack of 7 October and Israel’s Military Response”, IYIL, Vol. XXXIII, 2023, p. 533 ff.

[7] “President Meloni’s statement on International Criminal Court Ruling”, 22 November 2024.

[8] G7 Foreign Ministers’ Meeting Statement (Fiuggi–Anagni), 26 November 2024.

[9] See questions nos. 3-01577, 3-01578, and 3-01579 and the verbatim minutes of the meeting.

[10] “Tajani: ‘Italia pronta a inviare militari a Gaza. Arrestare Netanyahu? Le immunità vanno rispettate’”, Corriere della Sera, 15 January 2025.

[11] “Tajani: ‘Legittimo contestare scelte politiche, forse bisogna aprire un’inchiesta’”, La Stampa, 7 February 2025.

[12] See also the position expressed for the Government by Ms. Maria Tripodi, Undersecretary of State for Foreign Affairs and International Cooperation, on Motions Nos. 1-00370, 1-00375, and 1-00394, discussed at the Chamber (395th, 413rd and 418th Meetings, respectively).

[13] ICC, Finding under article 87(7) of the Rome Statute on the non-compliance by Mongolia with the request by the Court to cooperate in the arrest and surrender of Vladimir Vladimirovich Putin and referral to the Assembly of States Parties, ICC-01/22-90, 24 October 2024, paras. 27-28 and 33-37 (quoting the appeal judgment on Jordan’s failure to arrest Omar Al-Bashir).

^[14] See, for instance, the ambiguous position expressed by the French Government referred to by Tajani. In April 2025, Hungary hosted Netanyahu for a State visit in open defiance of the ICC warrant, and it later declared its intention to withdraw from the Statute. Belgian Prime Minister De Wever stated in an interview that if Netanyahu were to visit Belgium, he would not be arrested. Similarly, outgoing German Chancellor Scholz, answering a specific question on the issue at a press conference, said: “I can’t imagine that an arrest [of Netanyahu] would occur in Germany”.

[15] ICC, “Situation in Libya: ICC arrest warrant against Osama Elmasry Njeem for alleged crimes against humanity and war crimes”, 22 January 2025.

[16] Law No. 237 of 20 December 2012.

[17] Art. 2(3) of the Law requires the Minister to exercise his or her competences “in a short time”.

[18] See, e.g., Meloni, “Italy, Libya, and the Failure of State Cooperation with the International Criminal Court in the Elmasry Arrest Case”, Just Security, 30 January 2025; and Poltronieri Rossetti, “The Failure to Arrest and Surrender Osama Elmasry Njeem: ‘That Awful Mess’ in Rome”, EJIL: Talk!, 27 January 2025.

[19] “Almasri, Tajani: ‘La Corte dell’Aja non è la bocca della verità’”, ANSA, 23 January 2025.

[20] “Almasri, Meloni: ‘La scarcerazione non l’ha decisa il Governo, ma i magistrati. Espulso per ragioni di sicurezza’”, La Repubblica, 25 January 2025.

[21] See Kreß and Prost, “Part 9, International Cooperation and Judicial Assistance: Preliminary Remarks”, in Ambos (ed.), Rome Statute of the International Criminal Court: A Commentary, München/Oxford/Baden-Baden, 2021, p. 2445 ff.; and Meloni, cit. supra note 18.

[22] See Motion of no-confidence no. 1/00396, which was overwhelmingly rejected by the Chamber.

[23] See Arts. 59(1) and (4), and 97 of the Statute. The only limited exception, governed by Art. 93 of the Rome Statute, concerns the disclosure of information and documents that might endanger the national security of the requested State. Nevertheless, this exception applies exclusively to requests of cooperation other than that of arrest and surrender.

[24] See Arts. 86, 92, 93(1)(h) and 97 of the Rome Statute.

[25] ICC, Invitation to the Italian Republic to provide submissions, ICC-01/11-162, 17 February 2025; Prosecutor of the ICC, Request for a finding of non-compliance under Article 87(7), ICC-01/11-163-Red2, 21 February 2025.

[26] See the Statement here. See also Italy’s endorsement of the Joint Statement in Support of the International Criminal Court, 14 June 2024, with emphasis on the importance of cooperation.

[27] Italy, for instance, did not sign the Joint Statement in Support of the International Criminal Court (ICC), 7 February 2025, adopted by 79 States Parties to the Rome Statute.