The ICC, Non-Cooperation and the Cost of Impunity in Libya: Lessons from 2025

06 January 2026
Author: 
Coalition for the International Criminal Court (CICC) and Libya Crimes Watch

The International Criminal Court (ICC) was created to ensure that the perpetrators of the most serious international crimes can no longer act with impunity. It is mandated to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression. But unlike domestic courts, the ICC has no enforcement arm of its own, relying primarily on States Parties to the Rome Statute to arrest and surrender suspects to fill its courtrooms. 

That reliance has always been the Court’s greatest strength and its greatest vulnerability. It makes the ICC a truly international system of justice, dependent on cooperation rather than coercion. Yet it also means that when states refuse to act, justice stalls. 

In 2025, the Situation in Libya became a litmus test for what cooperation with the ICC means in practice. 

 

A year of contrasts 

In 2025, the path of accountability in Libya was shaped by two opposing events, both tied to Mitiga Prison, operated by the Deterrence Agency for Countering Terrorism and Organised Crime (“Al-Radaa”) under the Libyan Presidential Council. In the first instance, Italian authorities swiftly released Osama Elmasry Njeem after briefly detaining him under an ICC warrant in January 2025. In the other, German authorities arrested Khaled Mohamed Ali El-Hishri (Al-Buti) on 16 July 2025 and surrendered the suspect to the custody of the ICC on 1 December 2025. From the perspective of Ali Omar, Director of Libya Crimes Watch (LCW), this contrast illustrates the “interplay of political and security factors, as well as the willingness to cooperate with the International Criminal Court (ICC).” 

Within Al-Radaa, Njeem was regarded as more senior and influential than El-Hishri. His standing prompted direct intervention from the Government of National Unity, its embassy in Rome, and even the Libyan Attorney General, Siddiq Ahmad Assour, to secure his release. These efforts were reinforced by threats from armed groups controlling much of Tripoli at the time, before the death of Abdelghani Al-Kikli (Ghneiwa) and the collapse of his alliances. “Italy’s political, economic, and security interests in Libya, alongside the presence of an Italian community there, also made it more susceptible to pressure from the Libyan authorities,” highlights Ali Omar. 

By contrast, El-Hishri lacked comparable influence or protection within armed groups. His arrest in Germany occurred in a context where Berlin had no significant strategic stakes in Libya and hosted only a small Libyan community. His surrender to the Court and first appearance before the ICC on 3 December “represents an important step towards fulfilling state obligations under the Rome Statute and sets a positive precedent compared to what occurred in Italy.” 

“This contrast underscores that cooperation with the ICC in the Libya file remains subject to shifting political and security considerations”, warns Ali Omar, “and that the absence of a unified and firm stance by member states regarding the execution of arrest warrants undermines victims’ trust and leaves the door open to impunity.” 

 

Political interests versus legal obligations 

The Libya cases expose how political contexts and strategic interests can distort cooperation with the ICC, often at the direct expense of victims. 

Italy, under Prime Minister Giorgia Meloni, placed its strategic relationship with the Government of National Unity (GNU) in Tripoli above its legal duties under the Rome Statute. Migration control, treated as a matter of national security in Rome, alongside shared economic interests and concerns for the safety of the Italian community in Libya, took precedence over justice. As Libya Crimes Watch’s Ali Omar notes, “These political calculations overshadowed Italy’s legal obligation to cooperate with the ICC, resulting in the swift release of Njeem despite the existence of an arrest warrant.” The decision not only shielded a suspect but also undermined the credibility of the international justice system. 

Germany’s record stands in contrast to that of Italy but is not free from contradiction. With fewer direct interests in Libya and less exposure to political pressure, German authorities were able to arrest Khaled Mohamed Ali El-Hishri in July 2025. This was facilitated by shifts within Tripoli itself, including the collapse of Abdelghani Al-Kikli’s (Ghneiwa’s) armed alliances, which weakened the capacity of militias to exert influence. “Although the ICC wants both men, Njeem evaded arrest in Germany while El-Hishri was detained, underscoring, as mentioned, the interplay of multiple factors,” stresses Ali Omar.   

The contrast between Italy’s release of Njeem and Germany’s arrest of El-Hishri highlights how the presence or absence of political and security interests shapes the execution of ICC warrants. It also underscores the “pressing need for unified and binding standards across all member states to ensure the execution of arrest warrants, free from narrow political considerations.” 

The consequences of selective cooperation are devastating. Italy’s handover of Njeem back to Libyan authorities “caused serious harm to victims and affected communities, while sending a negative message to perpetrators that escaping justice remains possible.” Such failures deepen victims’ sense of abandonment, erode trust in international justice, and perpetuate cycles of impunity. 

This is compounded by the fact “the arrest warrants made public to date have largely targeted lower-level figures, without reaching senior officials or members of the second-tier leadership involved, reinforcing the perception that justice is incomplete.” Genuine cooperation with the ICC must “translate into an explicit and practical commitment to execute all arrest warrants, thereby assuring victims that their suffering is acknowledged and that justice is not selective.” 

 

The human impact: What cooperation means for victims 

For victims, the concept of cooperation is not abstract. It determines whether they see tangible steps towards justice, further delays, or eventual abandonment. 

The release of Njeem in Turin “sent an extremely troubling message to armed group leaders operating detention sites in Libya. It reinforced their belief that their military and political influence, combined with connections to the authorities, could shield them from international accountability, entrenching a culture of impunity. This not only strengthened perpetrators’ sense of immunity but also deepened the frustration of victims and their families, who once again saw international law lose its weight on the ground.” 

By contrast, El-Hishri’s arrest and subsequent surrender to the ICC represent a positive step that sent the opposite signal: “that ICC arrest warrants are not merely political instruments, and that perpetrators face genuine risks whenever they leave Libya. This helped to restore some hope to victims and demonstrated that serious commitment by States Parties can strengthen deterrence and show that impunity is not inevitable." 

Victims’ reactions vary. Communities in Tarhuna, affected by mass graves and enforced disappearances, saw the arrests as “the beginning of a response to their suffering, however modest.” But in eastern Libya, where only one arrest warrant, against Mahmoud al-Werfalli, has been issued in that region, disappointment persists. As Ali Omar underscores, “the disparity reinforces perceptions that international justice is uneven and incomplete, thereby discouraging survivors from engaging with justice processes.” 

 

Pre-Trial Chamber I Decision on Italy’s non-compliance with a request for cooperation 

On 17 October 2025, Pre-Trial Chamber I issued a decision, finding that Italy failed to comply with its Rome Statute obligations by failing to surrender Osama Elmasry Njeem to the Court following his arrest. Although Italian authorities arrested Mr. Njeem in Turin on 19 January 2025 pursuant to an ICC warrant, he was subsequently released and flown back to Libya without any consultation with the Court “upon identifying any perceived obstacles that could impede or prevent the execution of the cooperation request” (para. 32 of the decision). The Chamber emphasised that such conduct amounted to non-compliance under Article 87(7) of the Rome Statute, since Italy’s actions “prevented the Court from exercising an important power and fundamental function, namely securing the presence of the suspect before the Court” (para. 28). Italy advanced several justifications, including an adverse ruling by its Court of Appeal, a competing extradition request from Libya, alleged inconsistencies in the warrant, and national security concerns, but the Chamber found none of these valid. As the judges underlined, “matters of domestic law cannot be invoked by a State Party to justify non-compliance,” (para. 53) and Italy’s failure to consult the Court “violated its obligation under article 97 of the Statute” (para. 33). 

On that basis, the Chamber unanimously declared Italy in breach of its international obligations, stressing that “Italy did not act with due diligence and did not use all reasonable means at its disposal to comply with the request for cooperation” (para. 54). Consequently, the Chamber found that Italy failed to comply with its obligations under the Rome Statute, thereby preventing the Court from carrying out its functions and powers. At the same time, the Chamber, by majority, with Judge Flores Liera dissenting, deferred its decision on whether Italy’s non-compliance should be referred to the Assembly of States Parties or the United Nations Security Council. Instead, the Chamber invited Italy to provide, by Friday 31 October 2025, information on any domestic proceedings related to this case, as well as an explanation of how those proceedings might affect Italy’s future cooperation with the Court in carrying out requests for arrest and surrender of suspects. 

 

Why Njeem must be tried in The Hague, not Tripoli 

On 5 November 2025, the Libyan Attorney General announced the detention of Osama Almasri Njeem, following ten formal complaints of torture, including one case involving the death of a detainee under torture, and indicated an intention to try Njeem domestically. 

For Libya Crimes Watch, this announcement raises serious concerns. LCW stresses that Njeem should be surrendered to the ICC, as “he is unlikely to face prosecution in Libya for crimes against humanity and war crimes, offences not addressed under Libyan law and falling squarely within the ICC’s mandate.” The organisation also warns about the “effectiveness and enforceability of any domestic trial outcomes,” noting that national processes remain vulnerable to political pressure, militia influence, and structural deficiencies within the Libyan justice system. 

 

Shifting the cost of non-cooperation 

Non-cooperation carries devastating consequences for victims. Too often, they pay the price for political calculations. 

As Ali Omar puts it, “Placing the burden of states’ failure on victims is profoundly unjust. It only deepens their wounds and weakens their trust in the international justice system.” 

Instead, the cost must fall on perpetrators and decision-makers. In a powerful call for action, Ali Omar stresses the need for: 

  • Conditionality: Making diplomatic, economic, and security cooperation contingent on compliance with ICC requests. 

  • Targeted measures: “Political and diplomatic restrictions should be imposed on non-cooperative officials, including travel bans, asset freezes, and limits on their participation in international fora. This would send a message that obstructing justice carries direct and personal consequences.” 

  • Political isolation: “The international community can resort to additional pressure tools, such as political and diplomatic isolation of non-cooperative officials, and restrictions on bilateral cooperation or international support for authorities that refuse to comply.” 

  • United Nations follow-up: “The importance of the Security Council and the General Assembly taking more serious and transparent action when addressing cases of non-cooperation, in order to strengthen victims’ confidence that the international community stands with them and does not leave them at the mercy of impunity.” 

These are not punitive measures against populations, but targeted consequences for those obstructing justice. 

 

Looking ahead 

Ali Omar expresses “cautious optimism” regarding the likelihood of further arrests in the near future. 

“On the one hand, the Office of the Prosecutor (OTP) has shown seriousness in pursuing the Libya situation.” However, Ali Omar warns that “its stated intention to close investigations by the end of this year raises questions about whether the current momentum can be sustained and translated into concrete action, particularly in the execution of existing warrants. On the other hand, the ICC has yet to issue arrest warrants against top-tier leaders or even certain second-tier officials who played pivotal roles in the commission of grave violations.” 

Meanwhile, crimes that fall squarely within the ICC’s mandate continue to occur in Libya, particularly against migrants. This reality makes clear “that impunity has not only persisted but continues to fuel cycles of violence, the erosion of the rule of law, and violations of victims’ rights to truth, justice, and reparations.” 

For accountability to contribute to peace and stability in Libya, Libyan civil society stresses that arrest warrants must extend to higher-level leadership, and that victims’ rights to truth, justice, and reparations must be central to any future political settlement. 

For international justice to play a real role in advancing peace, stability, and human rights in Libya, accountability for those behind the gravest crimes must be treated as an overriding priority. This means “expanding ICC arrest warrants to cover higher-level leadership figures, rather than focusing only on lower-ranking individuals. It also requires stronger support for victims and their families, ensuring their meaningful participation in transitional justice processes and in any future political arrangements, placing their rights to truth, redress, and reparations at the centre of any comprehensive settlement.” 

If progress stalls, Libya Crimes Watch is clear: 

  • First, the ICC should make more assertive use of the tools already at its disposal to address non-cooperation. This means issuing repeated, direct referrals to both the UN Security Council and the General Assembly, while pressing for concrete, enforceable measures against those obstructing justice. 

  • Second, States Parties must live up to their political and legal obligations, not only by executing arrest warrants “but also by leveraging their diplomatic and political influence to raise the cost of non-cooperation. This includes imposing travel restrictions, freezing assets, and limiting avenues of international support or cooperation for authorities or individuals shielding fugitives from justice.” 

  • Third, stronger regional cooperation is essential, especially with neighbouring countries such as Tunisia and Egypt, which have served as safe havens for suspects. “This requires activating mutual legal assistance frameworks and strengthening information-sharing mechanisms to ensure accountability.” 

 

The credibility test 

Libya in 2025 lay bare the central dilemma of international justice: the ICC can issue arrest warrants, but only states can give them meaning. Every arrest and every release is more than a legal procedure, it is a message. To perpetrators, it signals whether power still shields them from justice. To victims, it signals whether their suffering is acknowledged or dismissed. 

As Ali Omar makes clear, “Accountability is not optional but the first and most essential step toward genuine stability in Libya.” Anything less sustains the cycle of abuse, impunity, and instability. 

“Accountability in Libya must not be a distant hope; states must fulfil their obligations to cooperate with the ICC, without reservations, to end the cycle of impunity. For without effective and prompt cooperation, the investigation will continue to stall, courtrooms will remain empty, and notably, victims will lose out. Nearly 15 years after the Security Council referral, victims in Libya deserve justice,” stated Yasmina Gourchane, the former New York Representative of the Coalition for the ICC. 

The Coalition for the ICC and Libya Crimes Watch therefore call on all States Parties to match their words with action: 

  • Enforce ICC arrest warrants without delay. 

  • Impose real and personal consequences for non-cooperation. 

  • Place victims and their rights at the centre of every step of the process. 

The credibility of the Court, and the future of justice in Libya and beyond, depends on these choices. States can either prove that international justice has teeth or allow impunity to prevail. For the victims still waiting, the difference is not symbolic. It is the difference between abandonment and hope. 

 

About LCW 

Libya Crimes Watch (LCW) is a non-governmental organisation founded in 2019 and registered in the United Kingdom. LCW specialises in observing, monitoring, and documenting human rights violations and international crimes committed against civilians. Through a dedicated field team operating across all regions of Libya, LCW strives to promote accountability.  

For further inquiries, please contact Ali Omar, Director of LCW, ali@lcw.ngo, and/or Nour Khalifa Communications and Outreach Officer, nour@lcw.ngo. 

 

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