LFJL Statement on Non-Cooperation at the 24th Assembly of State Parties

This intervention was delivered by Cristina Orsini, Senior Programme Advisor at Lawyers for Justice in Libya (LFJL), during the Non-Cooperation Plenary Session of the 24th Assembly of State Parties to the International Criminal Court on 3 December 2025. The statement addresses the persistent challenge of non-cooperation with the ICC, with a particular focus on Libya, and highlights its concrete impact on accountability and victims.

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Without cooperation, the International Criminal Court (ICC) cannot deliver its mandate. This is why, as a civil society representative, I welcome that – for the first time – non-cooperation has a dedicated item on the ASP plenary agenda. This is an important step, but also a testament to a sobering reality: non-cooperation remains one of the ICC’s most entrenched challenges, including among State Parties.  

This past year provides many illustrations of this. Despite an arrest warrant issued against Benjamin Netanyahu, he was able to visit Hungary, triggering a finding of non-compliance and Hungary’s withdrawal from the Rome Statute. Several States, including Germany, France and Poland, have publicly expressed doubt that they would be ready to arrest him. Similarly, Vladimir Putin visited Tajikistan (and Mongolia last year), without being arrested despite a pending arrest warrant.

Non-cooperation in Libya as an illustration

As an NGO representative of LFJL, an international and Libyan NGO working for transformative justice in Libya, I am speaking to you today because the Libya situation sadly offers many illustrations of non-cooperation - and its very tangible impact.

Libya is not a party to the Rome Statute. However, United Nations Security Council (UNSC) Resolution 1970 (2011), which granted the Court jurisdiction in the Libya situation, requires Libyan authorities to cooperate with the Court. In May this year, the Libyan Government of National Unity also issued a declaration accepting ICC jurisdiction.

Yet, restrictions imposed by authorities and security risks for victims, witnesses and civil society have impeded effective investigations inside Libya. Libyan authorities also continue to consistently fail to arrest or transfer individuals subject to ICC arrest warrants to the Court.  

In 2014, this already triggered a finding of non-cooperation from Pre-Trial Chamber I in relation to Libya’s failure to arrest and surrender Saif Gaddafi, resulting in a referral to the UNSC, with very little consequences stemming from it.  

Another finding of non-compliance in relation to Libya was made by Pre-Trial Chamber I this October, this time against Italy, although the Chamber decided to wait to refer the case to the ASP or the UNSC under Article 87(7). This story is illustrative of wider worrying trends.

On 19 January 2025, Italy arrested Osama Elmasry Najeem (henceforth ‘Elmasry’), after the ICC had issued an arrest warrant against him on the previous day. A few days later, Italy – a founding member of the ICC - returned him to Libya as a free man. Italy cited domestic legal and procedural issues to justify its decision. On the contrary, it seems that a mix of political concerns and diplomatic pressures led to the subordination of international obligations and justice considerations to political expediency. Italy’s failure to surrender Almasri to the Court is a breach of its international obligations. In the process, Italy also did not consult with the Court, failing to respect the requests for consultations set out in Article 97 of the Rome Statute.

As noted by the partially dissenting opinion of one of the judges, the Chamber’s reluctance to refer Italy’s non-compliance to the ASP or the UNSC sends the wrong message: that non-cooperation by State Parties will be met with mild consequences, if any.  

Why non-cooperation matters

First, in a context in which the Court, its officials, and civil society working for international justice are increasingly under attack – including through sanctions by the United States – each instance of non-cooperation is a further blow to the Rome Statue system, especially when it comes from State Parties.  

Second, each instance of non-cooperation entrenches impunity and is a missed opportunity for justice. Had Elmasry been transferred to the ICC, his would have been the first trial to be opened in the Libya situation, after 15 years of investigations. Now, the first ICC case related to Libya started just two hours before this meeting, with the initial appearance before the Court of Khaled Mohamed Ali El Hishri, also known as ‘Al-Buti’. This followed his transfer by Germany on Monday. We welcome their efforts in this case. This was a historical moment for Libya and it would not be possible without successful cooperation.  

Third, and most importantly, non-cooperation has concrete consequences on the life, hopes, and well-being of real people. This is an aspect that deserves more attention. Let me give you a few examples. After the return of Elmasry by Italy to Libya, victims in Tripoli told LFJL about their fear of reprisals, as Almasri was now aware that they had provided critical information to the Office of the Prosecutor (OTP) to build their case against him. Similarly, six outstanding arrest warrants for crimes in Tarhuna offered victims a rare sense of hope, but with no arrests made and suspects again becoming influential in the city, many victims now feel abandonded.

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Recommendations

These concerns are not unique to Libya. Nor are they new. They rather illustrate that cooperation is essential for the Court to fulfil its mandate and there is an urgent need to effectively address non-cooperation. It is in your power – in the power of State Parties – to do so. How?  

1. Fully respect all aspects of your cooperation obligations under Part 9 of the Rome Statute, equally across all situations and all suspects.  

2. Call on Non-State Parties to cooperate with the Court, in particular when situations have been referred to the Court by the UNSC. This is, of course, only possible if State Parties do not give in to double standards and consistently cooperate with the Court themselves.  

3. Make clear that non-cooperation also includes instances where civil society organisations, activists and others supporting the Court's work are subjected to threats and reprisals.  

4. Ensure that there are real consequences and political costs for non-cooperation. This should involve evaluating the effectiveness of current non-cooperation findings and referrals, and considering further or alternative measures.  

5. Continue to support the Rome Statute system. This implies supporting civil society organisations working for justice, including financially, politically, and ensuring that they can do their work unhindered from threats and reprisals. It also implies publicly defending the ICC from ongoing threats. Lastly, it means providing the Court with adequate resources to implement all aspects of its mandate, including victim and witness protection measures, as victims and witnesses are – ultimately - the ones who are most impacted by non-cooperation.  

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