The Italian government’s recent refusal to comply with an International Criminal Court (ICC) arrest warrant exposes deep-rooted hypocrisy in EU migration policy. While claiming to fight ‘human trafficking’, the Italian government has shielded a high-ranking Libyan official accused of crimes against humanity and war crimes.
This case exemplifies a broader trend where ‘migration’ concerns are used to justify legal exceptionalism, erode the rule of law and foster impunity.
The case concerns Osama Elmasry (or Almasri) Njeem, chief of the Libyan judicial police. He was arrested in Turin on 19 January following an ICC arrest warrant for crimes including torture, rape and sexual violence, murder and persecution. Just two days later, he was released and flown back to Libya on an Italian state aircraft.
The Italian government presented a list of unconvincing justifications for why it released him: the Court of Appeal of Rome hadn’t validated the arrest as it awaited the necessary approval from the Minister of Justice; the documents hadn’t been translated from English to Italian; and he was expelled for being a ‘national security risk’. However, Italy’s refusal to execute the ICC arrest warrant isn’t just a procedural failure but a direct violation of Italy’s – and the EU’s – legal obligations.
The ICC is currently assessing a legal complaint against Prime Minister Giorgia Meloni, Justice Minister Carlo Nordio and Interior Minister Matteo Piantedosi, and it has given the Italian government 30 days to provide further information so it can assess its decision to not cooperate.
Strong with the weak, weak with the strong
Meloni has repeatedly framed migration control as a fight against criminal networks, portraying Italy as a leader in dismantling human trafficking.
Following the preventable shipwreck in Cutro in February 2023, Meloni stated: ‘We are used to an Italy that mainly focuses on searching for migrants throughout the entire Mediterranean. What this government wants to do is search for human smugglers across the whole globo terracqueo (globe) because we want to break this trafficking.’
The government’s refusal to comply with the ICC arrest warrant contradicts this commitment. The UN named Elmasry as one of the Libyan state officials directly involved in human trafficking, arbitrary detention, and the torture of refugees and migrants. Yet despite perfectly fitting the profile of those that Meloni vowed to capture, he was sent back to Libya.
Instead of targeting high-level traffickers, the Italian authorities have been targeting sea crossing survivors, charging them with the crime of being ‘facilitators’ or ‘smugglers’. One example is Maysoon Majidi, a Kurdish-Iranian refugee detained for ten months in Italy for ‘facilitating illegal immigration’ because she assisted others during a perilous sea crossing.
Such cases reveal a clear choice to punish vulnerable individuals for political gain, while shielding those responsible for large-scale trafficking, human rights violations and grave international crimes. After all, the real traffickers don’t put themselves in dinghies in the Mediterranean – they sit comfortably in their homes.
So why not go after the real criminals? Since 2017, successive Italian governments – including the current one – have systematically provided financial and technical support to Libyan authorities and funded detention centres, becoming active accomplices in human rights violations and crimes against humanity.
Sending Elmasry back home instead of transferring him to The Hague raises serious questions: Would his testimony have exposed further details on Italian officials’ complicity in these crimes? Was the Italian government blackmailed with the threat of new arrivals from Libya? Of course, these two scenarios aren’t mutually exclusive.
Undermining judicial independence and civil society
The Italian government’s non-compliance with the ICC reflects a broader trend of treating migration policy as an ‘exception’ to legal norms – from international law to judicial and civil society’s independence.
The Meloni government has often clashed with the judiciary, challenging its independence when decisions have challenged executive power. When courts suspended the detention of asylum-seekers in the infamous centres in Albania, government officials and sympathetic policymakers argued that the judiciary was undermining a government representing the ‘will of the people’. Similar rhetoric was used when government officials were investigated or put on trial for migration-related matters. And it’s being used again for the ongoing investigation by the Rome Prosecutor’s Office into the Elmasry case.
Recent reports have also raised concerns regarding the deliberate targeting through military-grade spyware of civil society actors who have been vocal against the government and Italy and Libya’s ongoing collaboration.
The Council of Europe’s Commission against Racism and Intolerance (ECRI) has warned that the political discourse around migration in Italy ‘endangers the activities of non-governmental organisations providing support to migrants and undermines the independence of the judiciary when dealing with migration cases’. The European Commission has also acknowledged political attacks against the judiciary for migration-related cases in its 2024 Rule of Law Report. It didn’t, however, provide any relevant recommendations, exposing the Report’s politicised nature.
Partners in crime
These issues don’t only concern Italy but the entire EU. In the name of ‘preventing migration’, the Commission and individual Member States have struck secretive and unscrutinised deals with authoritarian regimes and state-sponsored criminals – like Elmasry – to contain human mobility in exchange for millions in taxpayers’ money. With the upcoming Pact on the Mediterranean, the ‘Team Europe’ formations of heads of state and government, EU Commissioners and relevant Commission services are all set to continue down this path.
Claims of a ‘balance’ between protecting borders and protecting people, between security and humanity, or between fairness and firmness have blinded many EU and national policymakers to the EU’s fundamental foundational values: human dignity, freedom, democracy, equality, the rule of law and respect for human rights (all handily found in Article 2 TEU).
Migration policy can’t continue being a pretext for deals with criminals, traffickers and authoritarian regimes, nor a tool for Member States to use to erode the rule of law.
First, the Commission should firmly condemn the Italian government’s non-compliance with the ICC arrest warrant. It should also commit to ensuring that migration policies and agreements with third countries aren’t used as a loophole for impunity. This includes launching infringement procedures against Member States that violate international and EU law, undermine the separation of powers and judicial independence, and attack civil society.
A comprehensive independent monitoring mechanism must be established to track all EU and national funding related to migration, with clear accountability measures and subject to democratic oversight by the European Parliament and the European Ombudsman.
Without meaningful action on these points, the Commission will not just remain a bystander but will actively enable and condone further violations – both within the EU and abroad.
