5 March 2026, by Dr Pablo Gavira Díaz and Dr Gurgen Petrossian
1. Introduction
On 1 December 2025, Khaled Mohamed Ali El Hishri was surrendered to the International Criminal Court (ICC or Court) after being arrested on 16 July 2025 by the authorities of the Federal Republic of Germany. These executed an arrest warrant issued on 10 July 2025 under seal by ICC Pre-Trial Chamber I, which found reasonable grounds to believe that Mr El Hishri is responsible for having committed directly himself, ordered or overseen crimes against humanity and war crimes, allegedly committed in Libya from February 2015 to early 2020. The transfer of Mr El Hishri also marked the first instance in which Germany surrendered a suspect in cooperation with the Court.
This comment seeks to situate the arrest and surrender of Mr El Hishri within the procedural framework of the ICC and the German legal system. In doing so, the analysis aims to elucidate the central role of international cooperation and assistance in the effective prosecution of international crimes.
2. Recent Developments Regarding the Situation in Libya at the International Criminal Court
The ICC has monitored the Libyan conflict since late February 2011, following the United Nations (UN) Security Council’s referral of the situation in Libya to the ICC Prosecutor. In May 2025, the Libyan government submitted a declaration to the Court accepting the ICC’s jurisdiction over alleged crimes committed in Libya from 2011 to the end of 2027, as noted by the Nuremberg Academy. By submitting to the jurisdiction of the Court, Libya effectively assumes the status of a de facto State Party and is therefore obliged to cooperate “fully” with the ICC in its investigations and prosecutions, including the execution of arrest warrants.
To date, eight persons sought by the Court in the Situation in Libya remain at large, including Osama Elmasry Njeem, the former head of the Libyan Judicial Police. In January 2025, Mr Njeem was arrested in Turin and released two days later by the Italian authorities. Italy invoked domestic legal and procedural grounds to justify Mr Njeem’s release, thus failing to comply with a request for cooperation with the Court.
3. The Arrest and Transfer of Suspects from States Parties of the International Criminal Court: Germany’s Legal Framework
Article 89 of the Rome Statute sets out the procedural framework governing the arrest and surrender of suspects by States Parties to the Court. Article 89(1) vests the ICC with the possibility to request any State Party where a suspect is located to arrest and surrender that person, providing supporting material under Article 91. Additionally, Article 89(1)’s second sentence encapsulates an obligation for States Parties to comply with such requests in accordance with the Rome Statute and their national law.
Germany, as a State Party, executes arrest and surrender requests of the ICC pursuant to the “Act on International Cooperation with the International Criminal Court” (Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof – IStGHG), which transposes Articles 59 and 89 of the Rome Statute into national law. The procedure established under the IStGHG largely mirrors extradition proceedings under a European arrest warrant framework, although it is formally characterised as “surrender” rather than extradition.
Section 2 of the IStGHG asserts that individuals who are present in Germany and in respect of whom the Court has requested surrender under the Rome Statute shall be surrendered. In the present case, the issuance of the arrest warrant against Mr El Hishri by the ICC on 10 July 2025, together with the transmission of the surrender request, triggered Germany’s legal obligation to arrest and surrender the suspect.
As mandated by Sections 9 and 13 of the IStGHG and on the basis of the ICC arrest warrant, German authorities provisionally arrested Mr El Hishri at Berlin Brandenburg Airport on 16 July 2025. His detention on German territory was carried out by operation of an order issued by the Königs Wusterhausen Local Court (Amtsgericht Königs Wusterhausen) – the nearest court to the airport – on the same date. Following his arrest and subsequent hearing before the Local Court, Mr El Hishri was placed in custody pending surrender at a correctional facility. On 21 July 2025, and as per Section 11 of the IStGHG, the Second Criminal Division of the Brandenburg Higher Regional Court (Oberlandesgericht Brandenburg, 2. Strafsenat) issued an order for provisional arrest pending surrender. Section 11(2)’s second part provides that such an order may be made “if there is strong reason to believe, based on certain facts, that said person has committed genocide (Article 6 of the Rome Statute) or a crime against humanity (Article 7 of the Rome Statute) and certain facts give reason to believe that there is a danger that if the person pursued is not arrested the Court’s clarification of the facts in relation to the offence of which that person is accused could be jeopardised.“ According to the ICC arrest warrant, Mr El Hishri is suspected of committing war crimes and crimes against humanity. Upon receipt of supporting material from the ICC as specified in Article 91 of the Rome Statute, the Brandenburg Higher Regional Court then ordered, in accordance with Section 10 of the IStGHG, the formal arrest pending surrender of Mr El Hishri.
Section 32 of the IStGHG offers the possibility of a “simplified surrender procedure” under which surrender may be effected without a formal decision on permissibility, provided that the person pursued consents and declares such consent before a judge. In cases falling under Sections 14 and 15 of the IStGHG, the competent local court is responsible for instructing the person pursued and recording the declaration of consent as laid down in Section 32(3) of the IStGHG. In the present case, Mr El Hishri declined to undergo the simplified surrender procedure before the Königs Wusterhausen Local Court, thereby triggering the formal permissibility procedure under Sections 19–22 of the IStGHG to determine whether surrender to the ICC was legally permissible.This review is limited to matters governed by the IStGHG and confines the German court to verifying the statutory conditions for surrender –such as the ICC’s jurisdiction under the Rome Statute and the requirements on supporting materials set out in Article 91 thereof– while precluding any examination of the merits or the evidence of the case.
Although Mr El Hishri contested the lawfulness of his detention, the Brandenburg Higher Regional Court, with reference to Article 59(4) of the Rome Statute and Section 16(2) of the IStGHG, held that the IStGHG constitutes a self-standing framework governing cooperation with the ICC, leaving no scope for the proportionality assessment applicable in conventional extradition proceedings.[†] Interim release of the person sought may be ordered only in urgent and exceptional circumstances.
Moreover, Mr El Hishri argued that the ICC arrest warrant failed to meet the statutory requirements set out in Article 58(3) of the Rome Statute. The Brandenburg Higher Regional Court rejected this submission, finding that the arrest warrant issued by the ICC contained all elements required by that provision. The German court further emphasised that, in conformity with Article 59(4) of the Rome Statute, it was not competent to assess whether the standard of “reasonable grounds to believe” under Article 58(1)(a) had been met. On that basis, it declined to grant the defence additional access to the case file for the purpose of contesting the allegations underlying the ICC arrest warrant.
Furthermore, Mr El Hishri disputed the permissibility of his surrender on several grounds. In this respect, he invoked diplomatic immunity, claiming to be accredited to a Libyan diplomatic mission and relying on Articles 29 and 31 of the Vienna Convention on Diplomatic Relations. The Brandenburg Higher Regional Court rejected this argument, finding that the Convention protects diplomats only in the context of bilateral relations between the sending State and the receiving State, a framework not applicable to the circumstances surrounding Mr El Hishri’s prospective surrender to the ICC. The Court therefore concluded that Article 98 of the Rome Statute was not applicable.
Additionally, the Brandenburg Higher Regional Court noted that in his first appearance before the Königs Wusterhausen Local Court on 16 July 2025, Mr El Hishri stated that he had travelled to Germany for private and personal reasons and not on a diplomatic mission. On this note, the Brandenburg Higher Regional Court reasoned that Article 27(2) of the Rome Statute, which renders official capacity irrelevant for the purposes of the ICC’s exercise of jurisdiction, excludes any reliance on diplomatic inviolability as a bar to the permissibility of surrender. The German court further considered this provision to be relevant in light of the UN Security Council’s referral in 2011 and Libya’s acceptance of ICC jurisdiction in 2025, which, in the court’s view, entailed acknowledgment of the “primacy of the [ICC]’s jurisdiction over rules on immunity.“
The suspect further raised objections concerning admissibility under Article 17 of the Rome Statute, the limits of the ICC’s jurisdiction, alleged selective prosecution, alleged political motivation, purported double standards in the protection of human rights and detention conditions at the ICC. The Brandenburg Higher Regional Court rejected these arguments, holding that they “do not constitute grounds preventing surrender and are not matters to be assessed” by the court in the context of judicial review in surrender proceedings under the IStGHG. Having dismissed these objections, the German court confirmed both the permissibility of surrender and the continuation of detention, thereby clearing the way for Mr El Hishri’s transfer to The Hague.
The suspect sought to challenge the decision of the Brandenburg Higher Regional Court to the German Federal Court of Justice. However, his application was dismissed “as inadmissible at his expense” on 8 October 2025. The court relied on Section 7(1)’s second sentence of the IStGHG, which asserts that relevant decisions of higher regional courts in surrender proceedings are not subject to appeal.[‡]
4. Implications of Successful International Cooperation and Assistance for the International Criminal Court
The transfer of Mr El Hishri on 1 December 2025 constitutes the first case in which German authorities have relied on the IStGHG to execute an arrest warrant issued by the ICC. The outcome of this case shows that, under German law, no residual discretion exists with respect to arrest and surrender requests once three conditions are satisfied: the establishment of the ICC’s jurisdiction; the submission of supporting material in accordance with Article 91 of the Rome Statute; and the lifting of immunity pursuant to Article 27(2) of the same Statute and a UN Security Council referral.
Compliance with requests for arrest and surrender is one of the most important obligations for States Parties, as it enables the Court to give effect to its mandate. Similarly, the Brandenburg Higher Regional Court describes cooperation as “an essential prerequisite for the effectiveness of the International Criminal Court as an institution.“ The ICC lacks an enforcement mechanism and it therefore relies on States Parties to undertake the initial steps that may allow prosecuting crimes. This duty, in the view of the German court, “must be understood broadly and extends to the investigation and prosecution of crimes within the Court’s jurisdiction, the enforcement of sentences and all related decisions.“ Hence, cooperation in the investigation and prosecution of crimes reinforces the perception of the ICC as an effective judicial institution rather than a political body, thereby enhancing victim confidence and trust in international accountability mechanisms.
In this regard, Professor Dr Christoph Safferling, Director of the Nuremberg Academy, welcomed the “successful arrest and effective surrender” of Mr El Hishri to The Hague. He further underscored Germany’s historically grounded “special responsibility” to fulfil its obligations under the Rome Statute, describing the surrender “as an expression of Germany’s continued commitment to international criminal law in challenging times”. He reaffirmed “the primacy of the rule of law over the rule of power” and characterised the operation “as an illustration of how international cooperation can give practical effect to the ideals of international criminal justice”. (pg/gp)
[†] Oberlandesgericht Brandenbug, Decision (Entscheidung) 2 OAus 31/25, 7 August 2025. On file with the authors. The authors have provided their own translation of the document, originally written in German.
[‡] Bundesgerichtshof, Beschluss v. 8. Oktober 2025 (2 ARs 397/25; 2 AR 277/25). Document on file with the authors. The authors have provided their own translation of the document, originally written in German.
