Human Rights Watch Letter to Libyan General Prosecutor al-Sur

Dear Mr. Al-Sur, 

After Greetings,

We write to you regarding the recent arrest of Osama Elmasry Njeem in Libya. We welcome your commitment to seek accountability for serious international crimes committed in Libya and this could mark an important step forward. As you are aware, however, Elmasry is also the subject of an arrest warrant issued by the International Criminal Court (ICC) on charges of crimes against humanity and war crimes, including murder, torture and rape committed in Mitiga Prison in Libya since at least February 15, 2015.[1] We would be grateful if you could provide further information about your office’s case against Elmasry and any steps taken with respect to the ICC arrest warrant. 

As you know, the Elmasry case before the ICC stems from a UN Security Council referral, which obliges Libya to cooperate with the court. Libya is also obliged to cooperate with the ICC as a result of the declaration it filed on May 2025 accepting the court’s jurisdiction pursuant to article 12(3) of the Rome Statute. This includes cooperating in the arrest and surrender of Elmasry to the ICC, at the court’s request.

The ICC is a court of last resort. Libyan authorities can challenge the admissibility of a case before the court pursuant to Rome Statute article 19(2) by making a showing to the court’s judges that there are ongoing national proceedings encompassing both the person and conduct that are the subject of the ICC case, and that state authorities are genuinely able and willing to conduct those proceedings.[2] ICC judges have the exclusive competence to decide if a case is admissible or not. The Rome Statute stipulates in article 19(3) that such a challenge must be brought “at the earliest opportunity.”

Libya is obligated to surrender Elmasry to the court. If Libya decides to challenge the admissibility of Elmasry’s case before the ICC, it can do so in tandem with surrendering Elmasry to the court. Or, once it has filed an admissibility challenge, Libya may decide to postpone a surrender request pending a determination by the court’s judges on that challenge in accordance with article 95 of the Rome Statute. However, as the court has previously noted, a postponement is only temporary and does not affect the validity of the ICC’s warrant.[3] During any period of postponement, Libya should refrain from any action that could hinder the execution of the surrender request.[4]

Alternatively, when the domestic proceedings against a person sought by the ICC relate to different crimes than those in the ICC’s arrest warrant, article 89(4) of the Rome Statute is clear that the relevant state, if seized of a surrender request by the court, should first grant the request and surrender the individual, and only then may it consult with the court. In this scenario, ICC judges have stated that postponement of the surrender request cannot be invoked by states.[5]

We would appreciate your response to the following questions: 

1. What charges have your office brought against Osama Elmasry?  
2. Following Elmasry’s arrest, have Libyan authorities engaged with the ICC? What steps have you taken to ensure Libya’s cooperation with the ICC? 
3. In which detention facility is Elmasry being detained? And which authority controls the prison? 
4. Could you list names of all individuals subject to ICC arrest warrants currently held in detention in Libya?
5. Did your office initiate arrest procedures for Saif Suleiman Sneidel, a member of the eastern-based Libyan Arab Armed Forces, as requested by ICC Deputy Prosecutor Khan in her address to the UN Security Council on November 25?

Many thanks for your consideration and we look forward to your reply. 

Sincerely,
Liz Evenson, International Justice Director 

Hanan Salah, Associate Middle East and North Africa Director

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[1] “Situation in Libya: ICC arrest warrant against Osama Elmasry Njeem for alleged crimes against humanity and war crimes,” ICC news release, January 22, 2025, https://www.icc-cpi.int/news/situation-libya-icc-arrest-warrant-against-osama-elmasry-njeem-alleged-crimes-against-humanity (accessed September 19, 2025).