In 2025, Italy was requested for the first time to cooperate with the International Criminal Court (ICC) in arresting and surrendering a suspect; it failed to do so and was therefore found non-compliant and referred to the Assembly of States Parties (ASP). The “Elmasry case”, from the name of the Libyan suspect Italy first arrested and then brought back to Libya thus violating its obligations to cooperate with the ICC, revealed the Italian Government’s ambiguity with regard to its conditional support to international criminal justice.[1] Additionally, the case exposed a legal disagreement concerning the role of the Minister of Justice under Italian implementing legislation (Law no. 237 of 20 December 2012). In particular, the Minister of Justice, Mr. Carlo Nordio, appeared to rely on the view that the Government retained a margin of discretionary assessment as to the transmission and execution of the ICC’s cooperation requests.[2] However, as it will be explained below, the ICC has found Italy’s defences to be inconsistent with the obligations under the Rome Statute. In this connection, a case is currently pending regarding the constitutionality of certain provisions of Law no. 237. This note will focus on the aftermath of the Elmasry case, at both the domestic and international levels, showing that, unless legal changes are made, there is a real risk that this episode will be only the first in a series of failures to cooperate by Italy.
The Domestic Developments of the Elmasry Case: The Refusal to Authorize Criminal Proceedings against Government Officials
Already on 23 January 2025, a criminal complaint was filed against the President of the Council of Ministers, Ms. Giorgia Meloni, the Minister of Justice, Mr. Carlo Nordio, the Minister of the Interior, Mr. Matteo Piantedosi, and the Undersecretary of State to the Presidency of the Council of Ministers, with authority over the intelligence services, Mr. Alfredo Mantovano, for possible crimes committed in releasing Osema Elmasry Najeem from custody. This complaint, to which several others were subsequently added, led to the initiation of criminal proceedings against the abovementioned government officials. The proceedings, given the official position of the accused and the fact that the alleged crimes were committed “in the exercise of their duties” (Article 96 of the Italian Constitution), were held in accordance with Constitutional Law no. 1 of 16 January 1989.
On 9 October 2025, after a preliminary investigation conducted by the so-called Tribunal for Ministers[3] and the dismissal of the proceedings against Ms. Meloni, the Chamber of Deputies (545th Meeting, XIX Legislature) held a plenary discussion to decide whether to grant the authorization to proceed against Ministers Nordio and Piantedosi and Undersecretary Mantovano. Under Article 9(3) of abovementioned Constitutional Law no. 1, Deputies were asked to consider if the persons under investigation “acted to protect a constitutionally relevant interest of the State or to pursue an overriding public interest in the exercise of governmental functions”.[4] As stated by the Rapporteur for the parliamentary majority, Mr. Pietro Pittalis, such interests were to be found in the need to “take precautionary measures to protect the lives and safety of the many Italians living in Libya”, since the intelligence services had highlighted the existence of “a concrete, immediate, and highly plausible risk of retaliation, with specific exposure to danger for the staff of the Italian diplomatic mission in Tripoli, civilians present in the capital, and Italian citizens transiting through the Mitiga Airport”. He added: “[i]n this context, the threats of hostile acts in the event of Elmasry’s non-repatriation did not appear hypothetical or vague, but concrete, albeit not entirely predictable in their modalities”.
However, this explanation of the public interest reasons allegedly motivating the decision not to cooperate with the ICC is prima facie at odds with earlier statements made by Minister Piantedosi himself soon after Elmasry’s repatriation, where the expulsion order was justified primarily as a reaction to “his profile of social danger”, while the existence of any form of blackmail on the account of the Libyan authorities or paramilitary groups was strongly denied.[5] This seeming contradiction was clear to the Rapporteur himself, who stated:
the presentation before the Chamber of solely the legal grounds [justifying Elmasry’s expulsion order] does not constitute a lie, but rather an act of prudence, dictated by the need to safeguard intelligence information that cannot be disclosed in a public session. As for the alleged external blackmail, the decision to repatriate Elmasry does not represent a capitulation to foreign powers, but rather a precautionary measure to safeguard human lives and national interests in an exceptional context.
In the end, the Chamber refused the authorization to proceed against the government officials for their involvement in the liberation and repatriation of Elmasry, thus concluding the domestic proceedings stemmed from the Elmasry case.[6] But the Government’s “extremely serious concerns regarding security and Italy’s diplomatic and commercial interests in Libya”[7] revealed its conditional support for the fight against impunity for international crimes, a support which proved to be subordinated to political and economic interests and tainted by glaring double standards: one can notice that only Italian “human lives” were deemed worthy of protection by bringing a dangerous international suspect back to the centre of his alleged criminal activities.
The International Repercussions of the Elmasry Case: The Proceedings before the ICC
On 17 October 2025, the ICC Pre-Trial Chamber I (PTC I) found, unanimously, that Italy had failed to comply with its obligations under the Rome Statute
[b]y not properly executing the Court’s request for the arrest and surrender of Mr [Elmasry] while he was on Italian territory, and by not consulting and cooperating with the Court to solve any purported issues arising from the formulation of the arrest warrant and the purported competing request for extradition […].[8]
Prior to determining whether to refer Italy’s non-compliance to the ASP and/or the United Nations Security Council, the judges of the PTC I decided, by majority, to postpone such decision in order to “receive information from Italy on any domestic proceedings relevant to the present case, and an indication of the impact that these proceedings could have on Italy’s future cooperation with the Court in the execution of cooperation requests for the arrest and surrender of suspects”.[9]
Italy’s response, signed by the Ambassador of Italy to the Kingdom of the Netherlands, Mr. Augusto Massari, confirmed Italy’s commitment to respect its international obligations to the ICC, but such commitment was qualified by direct reference to “the framework of national security interests as well as our Nation’s geopolitical position and constitutional and domestic legislation”.[10] Therefore, even the prospect of a reform of Law no. 237 of 20 December 2012 on the cooperation between Italy and the ICC – alluded to in Italy’s response to the PTC I – would likely be insufficient in ensuring Italy’s compliance with its obligations under the Rome Statute. Indeed, the PTC I has already declared in its previous decision that “matters of domestic law” – interpreted so as to include also the reasons of public policy and national security alleged by Italy as a basis for Elmasry’s expulsion order – “cannot be invoked by a State Party to justify non-compliance”.[11] The ambiguity of Italy’s response was also noted by the PTC I, which on 26 January 2026 decided to finally refer Italy’s failure to comply to the ASP, noting that twelve months after the Elmasry case it was still unclear whether “Italy would be able and willing to cooperate in the arrest and surrender of suspects sought by the Court, irrespective of the person’s nationality”.[12]
Other “Elmasry Cases”?
The point made by the PTC I in its latest decision seems indeed capable of appropriately describing the current state of Italy’s stance towards the ICC.
On the one hand, there is the problem of the inability to cooperate. Law no. 237 has already proved to be at odds with the obligations to cooperate enshrined in the Rome Statute, especially for the role Articles 2, 4, 11, and 13 of the Law assign to the Minister of Justice, who can effectively impede the cooperation with the ICC by simply not transmitting its requests for cooperation to the Prosecutor General (PG) at the Court of Appeals of Rome. Therefore, until such legislation is amended or declared unconstitutional[13] there is a concrete risk that Italy finds itself in a situation of “structural non-compliance”[14] with the obligations assumed upon ratification of the Rome Statute.
On the other hand, even more worrisome is the Government’s unwillingness to cooperate. For example, with an urgent parliamentary question (Question no. 2-00601 of 6 May 2025, answered on 13 June at the 493rd Meeting of the Chamber of Deputies) it was reported that even the ICC’s requests regarding Russian President Vladimir Putin and other suspects from the Russian Federation had not been forwarded to the PG yet. The answer given by the Undersecretary of State for the Interior, Ms. Wanda Ferro, confirmed those facts, simply stating that “no measures were taken against the authorities of the Russian Federation in response to the requests for cooperation received from the International Criminal Court, as they have never transited through Italian territory, nor has there ever been any indication that they were about to enter it”.
In the case of another suspect wanted by the ICC, Israeli Prime Minister Benjamin Nethanyahu, such “transiting through Italian territory” has indeed happened numerous times during 2025, when the aircraft carrying Netanyahu to the United States to attend the United Nations General Assembly or other meetings avoided French and Spanish airspace, but instead flew over Italian territory. In this regard, answering Question no. 4-06146 (Chamber of Deputies, 582nd Meeting, 11 December 2025), the Undersecretary of State for Foreign Affairs and International Cooperation, Mr. Giorgio Silli, stated that the “flight authorization was granted by the competent military authority” without any involvement by the Ministry of Foreign Affairs and International Cooperation and that “at present no request for judicial cooperation from the ICC has been notified to Italy in relation to the arrest warrant” concerning Netanyahu.[15] Even more significantly, Mr. Silli added:
Israeli Prime Minister Netanyahu was travelling to the United States to take part in the High-Level Week of the United Nations General Assembly and for talks with President Trump. These are initiatives of a distinctly diplomatic nature, which it is not in the interest of Italy, nor of the Middle East region, to obstruct. On the contrary, the Government considers it appropriate to foster every opportunity for dialogue capable of supporting de-escalation processes and promoting concrete prospects for peace and stability, also, and above all, for the benefit of the civilian population of Gaza, severely affected by the conflict. It was precisely in Washington, during the aforementioned mission, that significant progress was made with regard to President Trump’s plan for peace in Gaza, confirming the importance of maintaining open and constructive channels of communication between the main actors involved in the crisis. The Government will continue, as always, to ensure full compliance with the international obligations undertaken by Italy. Our country has always supported the mandate, functions and independence of the ICC.
In conclusion, whilst the Italian Government has formally reconfirmed its commitment to cooperate with the ICC after having been found non-compliant in the Elmasry case, it appears in practice to be seeking to retain ultimate control on whether and how to execute such requests for cooperation, in order to safeguard its political margin of discretion: a position that has already been declared by the judges of the ICC as incompatible with the obligations Italy assumed under the Rome Statute.
Alan Amadio
A quotable version of this post will be published in the Italian Yearbook of International Law: Alan Amadio, “To Cooperate or Not to Cooperate: The Repercussions of the Elmasry Case and Italy’s Gradual Distancing from the International Criminal Court”, IYIL XXXV (2025), 2026.
[1] For an extensive analysis of the case see the article by Poltronieri Rossetti, “Turin-Rome-Tripoli-The Hague: Italy’s Failure to Cooperate with the International Criminal Court in the Elmasry Case”, IYIL, Vol. XXXV, 2026 (to be updated).
[2] Poltronieri Rossetti, “The Enforcement of Arrest Warrants Issued by the International Criminal Court: Between the Duty to Cooperate and Realpolitik”, IYIL, Vol. XXXIV, 2024, p. 426 ff. (published also on this site).
[3] The final report of the “Tribunal for Ministers” (a special panel formed according to Art. 7 of Constitutional Law no. 1) is available as document Doc. IV-bis, n. 1 of the Chamber of Deputies’ 545th Meeting, 9 October 2025.
[4] For this purpose, two written reports – one on behalf of the parliamentary majority, the other expressing the views of the parliamentary minority – were prepared by the Chamber of Deputies’ Authorization Committee (respectively, Doc. IV-bis, n. 1-A and Doc. IV-bis, n. 1-A-bis).
[5] On 5 February 2025, before the Chamber (422nd Meeting), Minister Piantedosi stated: “I categorically deny, in the strongest possible terms, that during the period in which [the Elmasry case] was being handled the Government received any document or communication that could even remotely be considered a form of undue pressure amounting to a threat or blackmail from anyone”. See also Poltronieri Rossetti, cit. supra note 2.
[6] In fact, criminal proceedings are still pending against a former senior official of the Ministry of Justice precisely for the alleged false information she provided to the Tribunal for Ministers during its preliminary investigation in the Elmasry case. On 14 April 2026, the Chamber of Deputies (643rd Meeting) voted to raise before the Italian Constitutional Court a conflict of State powers attribution against the Tribunal for Ministers and the Rome Public Prosecutor’s Office, in order to shield said official from any criminal responsibility.
[7] Statement of the Rapporteur, Mr. Pietro Pittalis, to the Chamber (545th Meeting, 9 October 2025).
[8] ICC, Decision on Italy’s non-compliance with a request for cooperation, ICC-01/11-209, 17 October 2025, para. 62.
[9] Ibid., para. 63.
[10] ICC, Italy’s response to the Pre-Trial Chamber’s invitation to provide information on relevant domestic proceedings – ICC-01/11-209, ICC-01/11-211-Anx, 31 October 2025, para. 5.
[11] ICC, Decision on non-compliance, cit. supra note 8, para. 53.
[12] ICC, Decision to refer Italy’s non-compliance with a request for cooperation to the Assembly of States Parties, ICC-01/11-224, 26 January 2026, paras. 17-18.
[13] Indeed, on 30 October 2025, the Court of Appeals of Rome referred to the Italian Constitutional Court the question concerning the constitutionality of Arts. 2, 4, 11 and 13 of Law no. 237 insofar as they do not provide that the PG and the Court of Appeals itself can decide on ICC’s cooperation requests even following the direct transmission of such requests from the ICC, i.e. not through the Minister of Justice. The text of the order is available here.
[14] Meloni, “La Corte penale internazionale apre una procedura contro l’Italia per la mancata consegna del ricercato Osama Almasri, arrestato in Italia su mandato della CPI e rilasciato”, Rivista Italiana di Diritto e Procedura Penale, 2025, p. 674 ff., p. 676.
[15] An additional problem regards the relationship between Heads of State immunities and the duty to cooperate with the ICC. On 28 January 2025, during the 418th Meeting of the Chamber of Deputies, the Government unsuccessfully proposed amendments to Motions nos. 1-00370, 1-00375 and 1-00394 in order to clarify that cooperation with the Court to enforce the arrest warrant against Netanyahu would be subject to “compliance with the Rome Statute and with obligations under international law concerning State immunity or diplomatic immunity”. On Italy’s position on this issue see Poltronieri Rossetti, cit. supra note 2.
