In November 2017, a CNN investigation sent shock waves through
global media: African migrants were sold in “slave markets” in Libya, sparking global
outrage and renewed attention to the humanitarian crisis facing migrants in the
country. This revelation came at a time when the situation in Libyan detention
camps, where many migrants and asylum-seekers ended up, remained systematically
inhumane. Severe violations of human rights law, including jus cogens
norms such as the prohibition of torture and arbitrary killings, occurred daily
as officially documented in numerous reports (e.g., UN High Commissioner for
Human Rights report, A/HRC/37/46 or this report by
the UN Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment, (A/HRC/37/50)). Many of those who
were sold or arbitrarily killed had attempted to leave Libya to Italy by boat
and were pulled-back by the Libyan coast guards, in cooperation with Italian
authorities under their joint Memorandum of
Understanding (MoU)
of February 2017.
It is against this backdrop of
documented human rights that lead counsel Violeta
Moreno-Lax together with the de:border // migration justice collective (de:border) and the Association
for Juridical Studies on Immigration (ASGI),
with support from ARCI,
Yale Law School’s Lowenstein International Human Rights
Clinic, and the Rosa Parks Human Rights Clinic
of the University of Louvain presented the case of S.S.
and Others v. Italy to the European Court of Human Rights – a case that
many hoped would provide clarity on state responsibility for externalized and
“contactless” migration control, also labeled “pull-back by proxy” as it was
the Libyan authorities forcing the migrants back to their shores, while the
Italians provided technical support, training and financing (for a detailed
assessment on
protection at sea and the denial of asylum, see here Moreno-Lax).
Pull-backs by Proxy: The November 2017 Incident within
Externalization Policies
The case S.S. and Others v. Italy concerned a
maritime operation in November 2017, when approximately 150 people fled Libya
by boat seeking safety in Europe. When their vessel sent distress signals in
international waters of the Central Mediterranean Sea, Italy’s maritime
authorities coordinated the rescue operation but allowed Libyan forces to take
operational control. The survivors alleged this constituted a systematic
practice where Italy, with EU backing, effectively outsources migrant
interceptions to Libya to avoid direct responsibility while knowing that
migrants face torture, detention, and inhuman treatment upon return.
Of the 150 people who initially set out from Libya, 59
passengers were ultimately rescued and brought to safety in Italy, at least 20
people died before or during these events, and 47 passengers were pulled back
to Libya where they faced the documented risks of torture and inhuman
treatment. The applicants argued that Italy exercised jurisdiction both through
territorial control of the rescue zone and personal authority over the
operation, making it accountable for the resulting deaths and abuse. Specifically,
they contended that the facts fell within Italy’s jurisdiction within the
meaning of Article 1 of the Convention, both ratione loci and ratione
personae. They further alleged that Italy had, with the consent of the
European Union, established a practice of pull-backs or refoulement by-proxy, thereby placing
thousands of migrants at risk of inhuman and degrading treatment while
simultaneously circumventing its international and Convention obligations.
The Court’s Decision: A Narrow Interpretation of
Jurisdiction
Now, after seven long years of proceedings, the
European Court of Human Rights declared the application in S.S. and Others v. Italy last week inadmissible
(so far, the decision is only available in French). The judges anonymously found that
Italy had not exercised extraterritorial jurisdiction. The Court rejected
arguments that Italy’s financial and logistical support to Libya or coordination
of rescue operations established sufficient control under Article 1 ECHR. Regarding
jurisdiction ratione loci, the Court found that the area in which the
applicants had been intercepted, and the international waters of the Central
Mediterranean Sea more generally, had not de facto been under the
effective control of Italy (paras 81-83). Furthermore, the Court did not accept
the applicants’ argument that the financial and logistical support provided by
Italy to Libya in managing immigration amounted to the exercise of
extraterritorial jurisdiction by the respondent State. On jurisdiction ratione
personae, the Court observed that the captain and crew of the Libyan vessel
had acted “autonomously” (para. 102) and that there was nothing to suggest that
the officers of the Rome Maritime Rescue Coordination
Centre (MRCC) had control over the crew of that ship or had been in a position
to influence their conduct in any way. Moreover, the mere fact that the search
and rescue procedure had been initiated by the Rome MRCC could not, in the
Court’s view, trigger an extraterritorial jurisdictional link between the
applicants and the Italian state.
The S.S. and Others v.
Italy Case: Seven Years to Inadmissibility
The
inadmissibility of the case is little surprising given the current climate on
matters of migration in Europe but nevertheless constitutes a missed
opportunity to address states’ increasing tendency to externalize migration
control and to circumvent core obligations of the European Convention, such as Articles 2,
3 and 4 of the Convention and Article 4 of Protocol No. 4 that had been at the core of this proceeding. The crux
of the case centered on whether jurisdiction was established according to Article 1 ECHR.
This provision holds that the exercise of jurisdiction is a necessary condition
for a member state to be responsible for any acts or omissions. Only in very
exceptional cases can such acts outside the territories of the member states
trigger jurisdiction within the meaning of Article 1 ECHR
(see e.g.: ECtHR Catan
and Others v. the Republic of Moldova and Russia). One of these
exceptions is based on the power or control exercised over the person of the applicant (ratione personae) (see: ECtHR Banković and Others v.
Belgium and Others, Medvedyev and Others v.
France, Al-Skeini
and Others v. the United Kingdom, Hirsi
Jamaa and Others v. Italy). Hence, in order for the Strasbourg Court
to have found Italy responsible for violations of the ECHR, the applicants
would have needed to convince the court that they were under the continuous and
exclusive de jure and de facto control of the Italian
authorities.
Beyond Inadmissibility – the Broader Implications of
the Decision
Before sitting down to write this contribution, I went
back to my very first academic blog post on the submission of this case written in 2017 to see
what I had written then on the possible outcome. Even then I had noted that “it
will be a difficult task to establish such a link, but not an impossible task.”
Unfortunately, since then, the political climate has become a far tougher one
when it comes to protecting migrants’ rights and the glimpse of hope that I
expressed then, evaporated last week. Even then in 2017, it seemed a long but
necessary shot that the judges would deem the Article 1 threshold met to
protect migrants’ core rights, and there was hope that there might be another Hirsi moment that would stop states
from circumventing core obligations. In today’s political climate and given the
Court’s restrictive jurisprudence since 2015 (e.g., Khlaifia and Others v. Italy and especially in 2020
with N.D. and N.T. and Others v. Spain), it seemed even more
impossible that the Court would return to its previous more progressive
approaches. This is particularly worrisome as the decision comes at a critical time
when externalization trends are increasingly en vogue among
ECHR member states. A prominent example is the implementation of the EU’ New Pact on Migration and Asylum with its border
procedures, talks of return hubs outside the EU, or
the spreading notion of exporting the “Rwanda-model” beyond Denmark and
the UK. At the same time, migration has become a topic where states
incrementally push for more unilateral action and
less control by courts such as the ECtHR. More and more states loudly demand
less “interference” with their sovereign rights to control migration, which
became strikingly visible in the letter from last month in which
nine EU countries,
spearheaded by Italy and Denmark, called for a reinterpretation of the European
Convention on Human Rights to facilitate deportations of foreign nationals
convicted of crimes and demanded to be allowed to “take effective steps to counter
hostile states” that use the “instrumentalization” of migrants “against” them. The
public charge, the framing, the wording, and the substance constitute a clear challenge to the ECtHR’s authority and judicial
independence. They also reflect the broader political climate in which
migration control increasingly takes precedence over fundamental principles of human
rights protection. For example, the reference to “instrumentalization” is
particularly dicey as three important cases on the so-called
“instrumentalization” of migration against Poland, Lithuania, and Latvia are
pending at the Grand Chamber (C.O.C.G. and Others v. Lithuania, H.M.M. and Others v. Latvia and R.A. and Others v. Poland ) in which the
respondent states argue that the Court needs to lower its threshold for core standards
such as non-refoulement in such circumstances so that these states can
effectively protect their borders with Belarus. This letter and the
inadmissibility decision thus come at a crucial time where the ECtHR more than
ever needs to take a strong stand to not further undermine core and fundamental
principles of due process at the border.
At the
same time, this decision should be seen as a moment of reflection for those
engaging in strategic litigation before the ECtHR on migrants’ rights, as the
current Court’s jurisprudential trajectory in these matters, raises the urgent
question of whether advancing certain cases may inadvertently entrench state
practices by providing
judicial cover for restrictive migration control policies, as has been the
case in the aftermath of N.D.
and N.T. v. Spain.
The Implications: Insulating States from Accountability
Overall, this narrow interpretation of extraterritorial
jurisdiction effectively insulates states from accountability under the ECHR
when they delegate migration control enforcement to third parties, regardless
of the predictable consequences of such arrangements, that the judges
themselves acknowledge to exist (para. 110). For that reason, despite the
little chance of a progressive interpretation of Article 1, the inadmissible
ruling in S.S. and Others v. Italy leaves a bitter taste, particularly
given the well-documented human rights violations that migrants face in Libya
and the clear causal link between European policies of externalization and
these violations. It is likely that states feel now even more empowered to
circumvent their human rights obligations by operating through proxies, even
when they provide the funding, training, and coordination that makes such
operations possible. As European states continue to develop increasingly
sophisticated methods of externalizing migration control, the need for clear
legal standards on state responsibility becomes ever more urgent. The S.S. and Others v. Italy decision,
unfortunately, fails to provide such clarity. As highlighted above, the
implications of this decision extend far beyond the immediate case, potentially
affecting how courts and the ECtHR evaluate the responsibility for human rights
violations in an era of increasingly complex and externalized migration control
mechanisms.
A very thin silver lining, though it can equally be
read as an apology or a shuffling of responsibility, lies in the Court’s
concluding remarks (paras. 109-113), where the judges adopt an almost
apologetic tone, acknowledging that the applicants’ argument that bilateral
migration agreements with third countries can indeed expose highly vulnerable
individuals to serious risks of fundamental rights violations is valid. The
Court further emphasized that international law regimes still apply, notably,
rules on rescue at sea, refugee protection, and state responsibility. This is
particularly relevant given that since 2011, the International
Criminal Court has been investigating crimes in Libya, with increasing
attention since 2017 to grave human rights violations against migrants and refugees in detention. While this
acknowledgment may offer some rhetorical comfort, it does little to address the
practical reality that these
alternative legal avenues often prove inadequate, too lengthy or inaccessible for the very migrants
who find themselves caught in the web of externalized migration control.
