Analysis
Meloni explains away Italy’s failure to arrest accused Libyan torturer
This is the first time a European country has failed to execute a warrant issued from The Hague. It is an astonishing precedent that could lead the court to open an infringement procedure against Italy before the other state parties.
“We will give clarifications” to the International Criminal Court, but “we will also ask for clarifications ourselves, including regarding the questions that were submitted to us,” said Giorgia Meloni from Jeddah, Saudi Arabia, after a silence that lasted much longer than it should have, about the case of Osama Najeem Elmasry, the head of the Libyan torturers at Mitiga prison, wanted by the ICC and arrested in Turin a week ago before being quickly released and sent back to Tripoli aboard an Italian state flight.
“I think the Court also needs to clarify why it took the prosecutor's office months to issue this arrest warrant and why the arrest warrant was issued when Elmasry had already crossed through at least three European countries and was leaving Germany on his way to Italy,” the premier added. In any case, Meloni dryly pointed out, the wanted man “was released following the decision of the Court of Appeal in Rome, not the decision of the government.”
However, many of the explanations the premier is asking for are already there in the investigation file. Elmasry, the head of Libya's judicial police, is facing 12 counts of war crimes and crimes against humanity. On Jan. 18, a day after being alerted to the man's presence in Germany, prosecutors Karim Khan, Nazhat Shameem Khan and Nicole Samson decided to fast-track the procedure opened against him on Oct. 2, obtaining an arrest warrant from the court presided over by Judges Iulia Motuc, Sophie Alpini-Lansou and Maria Socorro Flores Liera.
The ICC indictment is 36 pages long, and it builds the case that, according to all evidence, between Feb. 15, 2015, and Oct. 2, 2024, Elmasry — “Mr. Najeem” to the prosecutors — beat, tortured, shot, sexually assaulted and killed prisoners at Mitiga Prison, crimes he either committed personally or ordered subordinates to commit them. The Hague Court has ascertained the existence of 5,140 individual crimes.
The ICC claims to be able to prove numerous incidents in which the “guests” at Mitiga – those arriving from sub-Saharan African countries were called “slaves” and treated accordingly – were beaten with plastic pipes, sticks or fists. They were locked in iron boxes, forced to stand in unnatural positions, tortured with electric shocks to the point of electrocution. This happened, and likely still happens, to people detained without charge or accused of “immoral behavior.” Beatings, arbitrary punishments and intimidation were not just interrogation techniques, but sometimes were used just “to entertain the guards.” It all went as far as sexual violence, carried out against minors as well. For some this was limited to being touched in “private areas,” but cases of penetration with sexual organs, other body parts and objects are also documented.
This is the evidence gathered, pointing to crimes that allegedly happened under Elmasry's direct responsibility. Of the three judges who authorized the arrest, one of them – Maria Socorro Flores Liera from Mexico – did express a dissenting opinion, voting against opening the pre-trial phase of the case. Her six-page opinion does not concern the charges against the head of the judicial police in Tripoli but the very existence of the Libya case: in her view, too much time has passed since the investigation into that country began (it was 2011 when the case reached The Hague, pushed by the UN Security Council) and the situation is now too different. Nevertheless, on Saturday UNSMIL, the UN mission in Libya, called on the authorities in Tripoli to arrest Elmasry.
In any case, the information about who Elmasry was and the charges against him was known to the Italian authorities since Saturday, January 18, when a Hague official went to the Italian embassy in the Netherlands to deliver the file with the charges. Given these facts, it is absolutely impossible for the government to claim that it did not know enough or had too little time to decide what to do. The silence of the Justice Ministry in the 48 hours that magistrates at the Court of Appeals in Rome had to handle the case can only be highly troubling. And explanations will also have to be given to the ICC.
This is the first time a European country has failed to execute a warrant issued from The Hague. It is an astonishing precedent that could lead the court to open an infringement procedure against Italy before the other state parties. This is not a very potent remedy (at most it will come down to a formal declaration against Italy, which will take a long time and a number of formal steps), but the problem is that Italy would end up in the dishonorable pile of countries that don’t respect international law.
Originally published at https://ilmanifesto.it/nelle-carte-della-cpi-tutte-le-spiegazioni-sul-caso-elmasry on 2025-01-26