For the second time in less than a year, the International Criminal Court (ICC) has referred an EU member to its oversight body, the Assembly of States Parties, for failing to cooperate with the court.
On January 26, ICC judges asked the court’s member countries to hold Italy to account for refusing to surrender Osama Elmasry Njeem, a Libyan suspect who had been in its custody. That follows the referral of Hungary last July for failure to arrest and surrender Israeli Prime Minister Benjamin Netanyahu, wanted by the ICC for war crimes and crimes against humanity in Gaza.
The ICC relies on its own members to enforce its rulings and secure justice for victims and survivors of atrocity crimes.
Italian authorities arrested Njeem, wanted by the ICC for serious crimes committed in Libya, in January 2025, but released him and sent him back to Libya. Victims and survivors denounced Italy’s move as a stark denial of justice.
In November, Njeem was arrested by Libyan authorities but little is known about the case, let alone whether Libya will comply with its own obligations to surrender him to The Hague. Human Rights Watch wrote to the Libyan attorney general in December requesting information on the charges against Njeem, Libya’s cooperation with the ICC, and information on other ICC suspects believed to be in Libya, but has received no reply.
The Njeem affair set off parliamentary debates, governmental inquiries and legal proceedings in Italy. But the ICC asked the Assembly to step in because it was not convinced Italy would cooperate in future cases.
The judges were silent as to why they did not also refer Italy’s noncooperation to the UN Security Council, given that the Council had requested the Libya investigation.
The recent noncooperation by Hungary and Italy, and the, at best, mixed signals by other EU member states’ officials as to whether they would arrest Netanyahu have undermined the EU’s credibility to advance equal access to justice for all victims, regardless of where serious international crimes are committed and by whom.
Hungary and Italy have let victims and survivors down. EU institutions and member states’ leaders should at the very least have tough conversations with Hungary and Italy, acknowledge their own obligations, and unambiguously reaffirm their own commitment to cooperate with the court across all situations.
