Al-Masri case, government memoir: repatriation 'in the interest of the state'

The document accuses the Tribunal of showing bias. Institutional witnesses were dismissed as unreliable without solid reasons, such as those of the police chief. The memorandum reads: "the discrediting of witnesses deemed not in line with the accusatory thesis. Whether it is the Chief of Police, the Director of the Information and Security Department, or the Diplomatic Advisor to the Minister of Justice - authoritative figures, servants of the State for decades -, they are all branded as unreliable. This is a serious discrediting in itself, and even more so when - as emerges from reading the question - it occurs with apodictic and unsubstantiated statements'.

Statements by magistrates such as State Councillor Luigi Birritteri - who had pointed out the absence of an ICC delegation to the Dag-Department of Justice and described the arrest as 'irregular' - are not valued.

The same applies to the definition of 'mendacious' addressed to Nordio and the head of the cabinet Giusi Bartolozzi: a generic accusation, without indicating which statements would be false.

A central chapter of the memorandum concerns the legal framework. The defence insists on the special nature of Law 237 of 2012, which regulates relations with the International Criminal Court.

Unlike extradition, here there is no power of provisional arrest by the judicial police, which happened with the arrest of Al-Masri in Turin by police agencies on 18 January. The initiative is referred to the Minister of Justice and judicial competence to the Court of Appeal in Rome. For this reason, the petitioners argue, extradition regulations cannot be applied by analogy: personal freedom is at stake, and analogies in malam partem are not allowed.

Not only that. This is the first Cpi case in Italy: there was no 'established practice'. The Court - adds the memorandum - referred to a 'certain doctrine' without indicating its authors or precise sources, and this cannot suffice to found an indictment.

Finally, there is an accusation of inconsistency: in some passages, the court itself recognises the speciality of the law and the exclusive competence of the minister. But then it concludes that the discipline 'leaves open' the question of arrest by the judicial police. For the petitioners, this is a contradiction that belies the charge of omission of official acts levelled against Nordio.

The political heart of the memoir concerns the international context. Between 19 and 20 January, according to information from Aise, there was turmoil in Tripoli.

Aise General Caravelli says this: "To have received between 19 and 20 January 2025 information from his sources in Tripoli and from institutional contacts (...) regarding a certain agitation that was mounting following the detention" of Al-Masri. The court's summary continued, "he explained, therefore, that he had reported, during the meeting on 19 (January), that General Al-Masri was a senior member of the special deterrence force known as the Rada Force, which (...) operated in key areas of the capital, including the area where our Embassy and the Ambassador's residence were located; he was also in charge of Mitiga airport in Tripoli and ran the special detention prison located near the aforementioned airport. (...) he did not (have) received any news of specific threats of attacks or acts of reprisal against Italian citizens in Libya but there was a lot of agitation and indicators of possible demonstrations or possible retaliation against the approximately five hundred Italian citizens living in Tripoli or arriving in Tripoli or Libya in some way, as well as against Italian interests. (...) As for the nature of the retaliation - recalling the precedent of Cecilia Sala arrested in Iran - he speculated that the Rada Force, managing the activity of the judicial police, could have carried out "detentions" of our citizens upon entering the country and Libyan territory or searches in the offices of Eni'.

Two are the heaviest charges: aiding and abetting and embezzlement.

Aiding and abetting, according to the court, was implemented with the deportation decrees signed by Piantedosi. The plea retorts: the assessment of dangerousness is the responsibility of the minister and cannot be criminalised. Moreover, the reference to multiple expulsions of other Libyan citizens was not the subject of the charge, fuelling confusion.

The embezzlement concerns the State flight used for the transfer. The defence memorandum defines it as an established practice: dedicated flights for detainees or deportees, with armed agents and security conditions that do not allow travel on civil aircraft.

The common thread of the memoir is clear: all the decisions taken in those days - from the non-validation of the arrest to the expulsion, to the Cai flight - are political acts. Choices made at the highest level to protect Italian citizens and strategic state interests.

And here the constitutional clause comes into play: Article 9(3) of Constitutional Law 1/1989. A rule that excludes criminal liability when the act is performed in the interest of the State or for purposes of overriding public interest.

The conclusion of the memorandum is without nuance: the proceedings must not go ahead. The Council, write Nordio, Piantedosi and Mantovano, must propose to the Chamber the denial of the authorisation to proceed.