The biggest concern for advocates of international law and justice this week was supposed to be the Trump administration’s incoming sanctions against the International Criminal Court (ICC). But then came the bombshell news that Italian authorities had arrested an ICC suspect only to release him and send him back to Libya on board an Italian secret services aircraft. With this appalling decision, Italy has just scuppered the best chance to address atrocities committed against migrants and refugees on the Mediterranean. How could this happen?

Here is what we know so far.

Libyan national and militia Osama Elmasry Njeem attended a Juventus-Milan football match in Italy last Sunday after arriving in the country by car, via France. The day before the game, the ICC issued a sealed arrest warrant for Njeem on charges of crimes against humanity and war crimes, including murder, torture, rape and sexual violence. The charges stem from Njeem’s alleged crimes committed in Libya since 2015 in the notorious Mitiga Prison, which Njeem is reportedly in charge of as part of Libya’s “Judicial Police”. According to the ICC, the crimes were committed against detainees for “religious reasons”, “immoral behaviour” as well as their support for other armed groups. Many of those imprisoned at Mitiga are migrants and refugees.

In line with Italy’s legal obligations as a member-state of the ICC, Italian anti-terrorist authorities arrested Njeem in his hotel room after the match. They asked ICC officials not to make any public pronouncements over the arrest, so the Court stayed quiet. But an Italian court decided to release Njeem, citing “procedural irregularities”. Authorities swiftly organized his transportation back to the Libyan capital of Tripoli. Media were alerted to his release twenty minutes after his flight left a Turin airport. How any irregularity could possibly require Italy to send home someone wanted on charges of war crimes and crimes against humanity has not been revealed.

Njeem arrived back in Libya where a crowd of men greeting him and celebrated his escape from justice. According to a statement by the ICC, Njeem was released “without prior notice or consultation with the Court,” and Italy has yet to explain its actions. One Italian Member of European Parliament has demanded answers: “The government must provide explanations, and they should do so especially for prisoners held in Libyan concentration camps.”

One explanation has since been provided by Italy’s Interior Minister, Matteo Piantedosi, who claims that Njeem was returned to Libya because he “presented a profile of social dangerousness”. This beggars belief. For one, Piantedosi’s explanation suggests that the Italian authorities initially lied when they said he was released on a because of a legal technicality, and that there was high-level political interference with the country’s judiciary. It also begs the question: how and why did they let such a dangerous person into the country in the first place?

Second, the ‘explanation’ does nothing to clarify why someone who posed a danger could not be surrendered to the ICC in line with Italy’s legal obligations, or why returning Njeem to where he has allegedly raped and killed makes him less of a danger. After all, all persons wanted by the ICC are, by definition, dangerous and that fact is not a reason for a violate its obligations to the Court.

Finally, the Minister’s explanation also fails to clarify why Italian authorities whisked Njeem back to Libya on a secret services jet, presumably at the Italian taxpayer’s expense.

Of course, states do not always uphold their obligations under the Rome – dyes, Italian Rome –  Statute of the International Criminal Court. But this is an unprecedented situation. A member-state of the ICC enforced an arrest warrant against an alleged perpetrator of war crimes and crimes against humanity, only to release him and pay for his return to a life of impunity. As Amnesty International stated: “This is a stunning blow to victims, survivors and international justice and a missed opportunity to break the cycle of impunity in Libya.”

What could explain Italy’s behaviour? Could Italy have used its secret services to protect Njeem and whisk him back to Libya – where he can continue to commit crimes against migrants – to protect itself? 

Italy has a long history of human rights abuses against migrants on the Mediterranean, including pushing them back into Libya, paying Libyan authorities like the Coast Guard to track and detain migrants, and funding former Libyan dictator Muammar Gaddafi with billions of dollars to control migrants and deter them through a campaign of brutal violence. In brief, Italy – as well as other European states and the European Union itself – have outsourced migration control to well-known perpetrators of mass atrocities. Some international lawyers have consequently claimed that European states like Italy are responsible for crimes against humanity committed against the migrants, and that the ICC should investigate their abuses.

Given this and the secrecy around Njeem’s release, Italy’s behaviour leaves the distinct impression that it was worried that Njeem or his bosses in Libya would reveal Italian complicity in atrocities committed against migrants, including refugees and asylum seekers, on the Mediterranean.

The ICC chief Prosecutor, Karim Khan, also owes some answers. For over a decade, the ICC’s Office of the Prosecutor promised to prosecute crimes against migrants. Despite numerous proclamations, visits to Libya, and claims of collaborative work with European partners to deal with abuses committed against migrants in Libya and on the country’s coastal waters, these promises have come to naught. And the Prosecutor has still not shown any willingness to investigate the complicity of Western states in those very abuses. This reluctance has made the Court out to be an impotent actor when it comes to addressing the systematic and widespread crimes committed migrants. That must change, and quickly.

The ICC faces a precarious present and future. American sanctions, which will likely target both ICC staff as well as the Court as a whole, pose the gravest threat that the institution has ever faced. With a belligerent bully in the White House, the Court’s best hope at surviving the next four years lies with the support of its member states. But with friends like Italy, who needs enemies?