NAJEM OSAMA ALMASRI: A CASE STUDY
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On January 21, 2025, Najem Osama Almasri was repatriated to Libya on a private flight operated by the Italian secret services.
The news caused quite a stir both in Italy and abroad, to the point where a significant portion of public opinion accused Prime Minister Giorgia Meloni of favouring and endorsing the illegal – and indeed also immoral – actions of a presumed war criminal.
The Incident, Step by Step.
Before analyzing the issue from a legal standpoint, it is essential to briefly recap the facts that led to the arrest and subsequent release of the alleged international criminal, Najem Osama Almasri.
Everything begins on January 19, 2025, when Almasri, having arrived in Italy from Germany in a rented car, is arrested at a hotel in Turin, where he had travelled to attend the Juventus-Milan match. What led to his capture was the routine guest data registration by the hotel, which triggered an automatic alert on the DIGOS[1] computers.
The reason is simple. just the day before, on January 18, 2025, the International Criminal Court (ICC), based in The Hague, had issued an arrest warrant against Almasri, identified as No. ICC-01/11-149-US-EXP, following a request made on October 2, 2024, by the prosecutor of the international body. The ICC has the power to issue arrest warrants within investigations into “situations” (referrals) initiated in territories under its jurisdiction for alleged international crimes. This authority derives from the Rome Statute[2] and the Rules of Procedure and Evidence adopted by the Court system[3].
What are the charges? In the case classified by the Court as “Situation in Libya,” Almasri was charged with war crimes and crimes against humanity, including acts of torture, inhuman and degrading treatment, rape, and sexual violence. These acts were allegedly committed in Libyan territory starting in 2015 both inside detention centers in Tripoli (specifically, the “Mitiga” prison) and within facilities used for detaining migrants.
Following the procedures outlined in international provisions, the ICC, in coordination with the Office of the Prosecutor at the Court, transmitted the arrest request to six States Parties to the Rome Statute, including Italy, based on intelligence indicating the suspect’s possible movements within the Schengen area. It is important to note that, in cases involving an international arrest warrant, under Law No. 237/2012, there must be constant communication between the ICC (which issues the warrant and transmits it to the States), the Italian Ministry of Justice (which assesses its validity), and the Court of Appeal of Rome (which evaluates the legality of extradition and whether the suspect should remain in custody until the Court’s decision).
Yet something went wrong; on January 21, 2025—just two days after the transmission of the warrant against Almasri—the Court of Appeal of Rome refused to validate the arrest because the Minister of Justice, responsible for liaising with the ICC, had not been informed before the arrest took place. As a result, Almasri was released. This occurred without prior notice or consultation with the International Court.
Later that same day, Almasri was transported back to Libya on a special flight arranged by the Italian intelligence services.
1. The General Investigations and Special Operations Division, abbreviated as D.I.G.O.S. (Divisione investigazioni speciali e generali), is a department of the Italian State Police present in each of the 105 police headquarters across Italy. Although it is structurally part of the police headquarters, given the matters it handles, it functionally depends on the Central Directorate of Prevention Police under the Ministry of the Interior.
2. The Rome Statute is the international treaty that established the International Criminal Court (ICC). Adopted on July 17, 1998, and entering into force on July 1, 2002, it sets the legal foundations of the Court, defines the crimes under its jurisdiction, and regulates its functioning. The Rome Statute lists four main categories of international crimes prosecutable by the ICC: Genocide; Crimes against humanity; War crimes; Crime of aggression.
3. The rules adopted by the ICC (International Criminal Court) to regulate how investigations, trials, and evidence collection should be conducted
The Jurisprudence Behind the Release: The Reasoning of the Court of Appeal of Rome.
The reasons for the Court of Appeal of Rome’s decision not to validate the arrest of Almasri are outlined in Order No. 11/2025 R.G.A.I., which highlights procedural errors committed by the Italian police.
Essentially, the ruling identifies two key issues:
First of all, the arrest procedure – carried out by the DIGOS in Turin – incorrectly followed the path of Article 716 of the Italian Code of Criminal Procedure, which allows police to initiate arrests in cases of international extradition requests.
Article 716 states: “1. In urgent cases, the judicial police may proceed with the arrest of a person for whom a request for provisional arrest has been submitted if the conditions set out in Article 715, paragraph 2, are met [e.g., an order restricting personal freedom or a conviction imposing a custodial sentence from the requesting state]. It shall also seize the corpus delicti and related evidence…”
However, Article 11 of Law No. 237/2012 does not provide for proactive action by the police but instead mandates close collaboration between the ICC, the Court of Appeal of Rome, and the Minister of Justice (Indeed: “1. When the request of the International Criminal Court concerns the surrender of a person against whom an arrest warrant has been issued pursuant to Article 58 of the Statute or a sentence of imprisonment has been pronounced, the Attorney General at the Court of Appeal of Rome, upon receiving the documents, requests the same Court of Appeal to apply the measure of pre-trial detention against the person whose surrender is requested … 4. The President of the Court of Appeal of Rome, as soon as possible and in any case within three days from the execution of the measure, proceeds with the identification of the person and collects their possible consent to the surrender, making mention of it in the report. The report documenting the consent is transmitted to the Attorney General at the same Court of Appeal for further forwarding to the Minister of Justice.”).
For the reader’s benefit, the cooperation obligations among the three aforementioned entities can be summarized in three steps:
- The International Criminal Court transmits the arrest warrant to the Court of Appeal of Rome, in the person of its Attorney General;
- The Attorney General at the Court of Appeal of Rome, upon receiving the documents, requests the same Court of Appeal to apply the measure of pre-trial detention against the person whose surrender is requested;
- The Attorney General consults with the Minister of Justice regarding the application of the detention measure.
In the second instance, the Court identified multiple procedural inconsistencies in the collaboration required by Law No. 237/2012.
- The DIGOS in Turin carried out the arrest on January 19, 2025, under the self-initiated procedure prescribed by Article 716 of the Italian Code of Criminal Procedure;
- The documents were subsequently transmitted to the Court of Appeal of Rome, which, on January 20, 2025, forwarded them to the Minister of Justice;
- There had been no prior consultation between the Ministry and the Court of Appeal of Rome regarding the execution of the precautionary measure;
- Until January 21, 2025, the Minister of Justice had not submitted any official request regarding extradition or the case’s management.
Thus, according to the Court of Appeal of Rome, the responsibility was “diffused,” stemming both from the incorrect application of an arrest procedure (Article 716, Italian Code of Criminal Procedure) instead of the appropriate one (Article 11, Law No. 237/2012) and from the failure to follow the required collaboration under Law No. 237/2012.
The Political Motives Behind the Release: The 2017 Libya Memorandum.
Beyond legal reflections, one must ask whether Almasri’s release was also influenced by “reasons of state.”
It is plausible that the Italian government feared Libyan retaliation, especially considering the agreements set out in the 2017 Memorandum. This agreement between Italy and Libya aimed to curb the influx of migrants to Italy, which had become unsustainable. It led to a 77% reduction in landings within a year and was deemed so “useful” that it was renewed until 2023.
Now, executing the ICC arrest warrant against someone like Almasri—who played a central role in the Libyan apparatus as the head of the judiciary police and had direct ties to counter-terrorism and crime prevention structures—could have led to an orchestrated increase in migration pressure, potentially jeopardizing national security.
All of this posed a dilemma for the Italian government, led by Prime Minister Meloni, who had made the fight against illegal immigration a cornerstone of her electoral campaign.
As a result, Almasri’s swift return to Libya cost the Italian government—and even the Prime Minister herself—an entry into the criminal register, with charges potentially including aiding and abetting and embezzlement.
Whether the case before the Tribunal of Ministers will lead to anything remains to be seen. The Tribunal has 90 days from receipt of the case files to decide whether to proceed with the investigation, dismiss it, or refer it to another judicial authority.
To catch a hidden elephant.
Whether or not the Government concealed the “reason of State” behind an erroneous application of the law is not for the writer to say.
Similarly, it seems pointless and premature to level an accusation against a person who is presumed innocent until proven otherwise.
However, it would be appropriate to ask ourselves this question: if an elephant can hide behind a blade of grass, what means should be used to fairly catch it?
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