SS and Others v Italy – or doubling down on Banković

I’m nonetheless in shock. The publication of S.S. and Others v Italy on 12 June 2025 was lengthy awaited.  After months of labor together with the candidates, seven years later, it is a disgruntling end result – not just for the candidates, however for the worldwide human rights group as a complete. As lead counsel, it’s troublesome to cover my disappointment at what I take into account a myopic ruling by the European Court docket of Human Rights, which is nonetheless certain to provide very consequential outcomes – presumably of the magnitude of Banković. That is the primary case delivered to the Court docket in regards to the Italian ‘pullback’ coverage, applied by means of cooperation with Libyan actors, within the context of the externalisation coverage carried out underneath the umbrella of a number of accords, together with a devoted Memorandum of Understanding (MoU) of 2017, and with EU backing.

The case issues the violent ‘refoulement by proxy’ on 6 November 2017 of a bunch of roughly 130 migrants from a sinking dinghy by the Libyan Coastguard, performing on the request of the Italian authorities and interfering with the rescue efforts of the NGO vessel Sea-Watch 3. Whereas Sea Watch was finally in a position to rescue and produce to security in Italy 59 passengers, a minimum of 20 individuals died earlier than or through the operation and 47 passengers have been in the end ‘pulled again’ to Libya to face sick therapy. The candidates within the case embody twelve survivors of the deadly incident, amongst whom the surviving mother and father of two youngsters who drowned. Whereas ten of the candidates have been rescued by Sea Watch and brought to Italy, two of them have been forcibly returned to Libya by the Libyan Coastguard, the place they endured ‘nightmarish’ situations (S.S., para. 28, citing UNHCR).

Ignoring Related Info

Vital elements of the sequence of those occasions has not been taken on board by the Court docket – regardless of the painstaking reconstruction ready by Forensic Oceanography utilizing testimonials, radar and radio communications, geolocation and satellite tv for pc knowledge, gathered by means of the SAROBMED challenge, drawing on present stories from UN our bodies, EU establishments and different actors, and through direct knowledge assortment, together with video materials recorded by Sea Watch.

There are particularly two necessary details to which the Court docket attaches no relevance, though their consideration might have modified the course of the choice. The primary is famous within the Court docket’s personal dedication of the occasions (S.S., paras 3-17). For the Court docket, the truth that the Rome Maritime Rescue Coordination Centre (MRCC), upon receipt of the misery name by the candidates, determined to speak the coordinates of the shipwreck to all vessels within the neighborhood, together with the Libyan Coastguard Ras Jadir, and that it particularly requested it to ‘take cost’ of the coordination of the search and rescue (SAR) operation (S.S., para. 6) carries no weight within the jurisdictional evaluation underneath Article 1 ECHR – the primary level of rivalry within the case.

By the Italian authorities’s personal admission, the Rome MRCC explicitly supposed, by means of its communication with its supposed counterpart: the Libyan Joint Rescue Coordination Centre (JRCC) – the existence of which was additionally in dispute – to actually ‘switch to the Libyan authorities the duty for the SAR operations’ (S.S., para. 53). What duty was being (or might really be) transferred, if none was stated to exist within the first place, stays unclear. Maybe the Court docket is suggesting that there exist some form of transferable duty that doesn’t entail any train of authority on the a part of the transferring State, which nonetheless causes the transferred actor to ‘instantly assume management’ (S.S., para. 100) – a management that doesn’t look like related vis-à-vis the transferring State with a view to figuring out its personal jurisdiction.

The second factual dispute the Court docket glosses over and that might have led to a special end result, regards the existence, first, and the suitability, second, of the supposed Libyan Search and Rescue Area (SRR) and its hooked up Joint Rescue and Coordination Centre (JRCC), as a physique able to successfully coordinating rescue operations worthy of the title.

Each components are associated. For legitimate recognition, the SAR Conference requires that SAR providers be operational inside the SRR being declared, in order ‘to provide immediate response to misery calls’ (SAR Conference, Annex, para. 2.1.8). The SRR is outlined as ‘[a]n space of outlined dimensions, related to a [maritime] rescue coordination centre [MRCC], inside which search and rescue providers are supplied’ (SAR Conference, Annex, para. 1.3.4). Its primary objective is to offer ‘efficient preparations for … search and rescue providers’ (SAR Conference, Preamble, para. 1). This requires a functioning MRCC, outfitted with ‘sufficient means for the receipt of misery communications’ and ‘sufficient means for communication with … rescue items and with MRCCs in adjoining areas’ (SAR Conference, Annex, para. 2.3.3.). In flip, rescue items hooked up to them have to be ‘suitably … outfitted’, staffed and managed, with applicable ‘amenities and gear’ for an efficient response (SAR Conference, Annex, paras. 2.4.1.1, 2.5.). All of this was, and nonetheless is, nonetheless, missing within the Libyan case.

The July 2017 Declaration, relied upon by the Italian Authorities, reveals as a lot. Sadly, the textual content, as reproduced within the judgment, doesn’t quote the Declaration appropriately or in full and limits itself to acknowledging – in a paragraph in any other case itemizing the allegations of the candidates – that the Libyan authorities (themselves) make ‘reference to monetary and logistical difficulties briefly impeding them to cowl all the SRR indicated’ (S.S., para. 66). The unique English model of the Declaration in actuality states that ‘on account of lack of assets and amenities on the present time [rather than “temporarily” as per the Court’s translation]’, the Libyan authorities ‘will delegate Malta [with whom they had reached a bilateral agreement mentioned in the text] to cowl Tripoli SAR area’. The shortage of capability – once more, as famous within the Declaration itself – is because of ‘the coastguard and air drive capabilities ha[ving] been destroyed through the navy operations in 2011’ – through the struggle that ousted Gaddafi, once more talked about en passant within the judgment (S.S., para. 18). This is the reason the Libyans, by means of the Declaration, explicitly request help to service their SRR ‘till the capabilities of the competent institutions have been rebuilt and the political state of affairs has improved’, which, by the 6 November 2017, had not occurred.

On the contrary, on the time of occasions, the ‘Italian MRCC … continued to coordinate rescue operations’ within the Libyan SRR, as reported by EUNAVFORMED (Six-Month-to-month Report 1 January – 31 October 2016, at 11; Six-Month-to-month Report 1 November 2016 – 31 Could 2017, at 8). In November 2017, the Libyan JRCC was nonetheless ‘removed from being absolutely operational’ (EUNAVFORMED, Six-Month-to-month Report 1 June – 30 November 2017, at 3), incapable of working at a ‘self-sustaining degree’ (EUNAVFORMED, Six-Month-to-month Report 1 November 2016 – 31 Could 2017, at 17; Six-Month-to-month Report 1 December 2017 – 31 Could 2018, at 10), or to ‘correctly finishing up the institutional duties as MRCC’ (EUNAVOFRMED, LYCG Monitoring Report, Annex C, at 4).

This is the reason Italy took it to itself to safe the mandatory features and, in August 2017, launched Operation NAURAS, as an extension into Libyan territorial waters of its navy mission Mare Sicuro – each of that are talked about by the Court docket, once more, as inconsequential allegations by the candidates and the TPIs (S.S., paras 62 and 72). NAURAS, nonetheless, included ‘a manufacturing facility vessel’ docked in Tripoli tasked particularly to ‘coordinate patrol and sea rescue operations’ (Ministero degli affari esteri, La Strategia Italiana Nel Mediterraneo, December 2017, at 24). This is the reason, on the time of occasions, the Italian manufacturing facility vessel ‘in Tripoli Harbour [was] performing as LNCC [i.e., Libyan Navy Communication Centre] and logistic help/assist hub’, completely ‘in touch with SAR property and ITCG [i.e. Italian Coast Guard] and MRCC Centres’, thus enjoying the position of a floating MRCC for Libya (Mare Clausum Report, at 10). Its perform was explicitly ‘the cooperation and coordination of the joint actions of the Libyan Coast Guard and Navy, with a view to finishing up their Command and Management (C2) duties’ (Italian Chamber of Deputies, Relazione analitica sulle missioni internazionali in corso e sullo stato degli interventi di cooperazione allo sviluppo a sostegno dei processi di tempo e di stabilizzazione, Doc. CCL-bis n. 1, 28 December 2017, at 101). It was, subsequently, through the Italian authorities, inside MRCC Rome and through the NAURAS naval deployment, that the Libyan Coastguard was in a position to function. As a lot was explicitly recognised by the Tribunale di Catania in the same case, the place it concluded that Libyan Coastguard interventions within the Central Mediterranean occurred ‘underneath the aegis of the Italian navy’, to the purpose that the telephone variety of the Libyan Coastguard, a minimum of till the spring of 2018, was the +39 variety of the NAURAS vessel docked in Tripoli. None of this – although submitted to the Court docket and ascertainable by means of copious proof within the public area – has been given any significance within the evaluation of the related details, nor within the jurisdictional evaluation.

Mischaracterising the Relevant Regulation

The Court docket additionally mischaracterises the relevant legislation. It repeats a number of instances that it isn’t competent to rule on the appliance of the maritime Conventions or the Regulation of the Sea (S.S., paras 89 and 113). It goes so far as to contemplate that the state of affairs at hand is just not ruled by the ECHR, however ‘by different guidelines of worldwide legislation’ by which, nonetheless, the Court docket ‘is just not certain’ (S.S., paras 112-113). This disregards the results of the principles of customary legislation at stake within the case and the truth that the purpose was not for the Court docket to undertake an authoritative interpretation of the SAR and SOLAS provisions. The refrain of third-party interveners, together with the candidates, was somewhat requesting the Court docket to hold out a coherent interpretation of the ECHR in mild of related provisions regulating the obligation to render help and rescue at sea (S.S., paras 68, 70, and 71). The expectation was that the Court docket would have proceeded like in Hirsi Jamaa and Ors v Italy and regarded that ‘the related provisions of the legislation of the ocean’ are of significance to the interpretation of the ECHR, usually, and Article 1, particularly (Hirsi, para. 77). 

Paradoxically – albeit in a distorted manner, that is what the Court docket seems to do nonetheless in the long run, when announcing the actions of the Rome MRCC ‘according to the process foreseen within the SAR Conference and the opposite related texts of worldwide legislation’ (S.S., para. 100), or when ‘noting’ that Italy’s conduct was ‘in accordance with the provisions of worldwide maritime legislation’ (S.S., para. 104). The Court docket makes these assertions whereas disregarding the element of the related guidelines.

All maritime interventions, underneath Article 98 UNCLOS and the SAR and SOLAS Conventions, ought to be directed on the preservation of human life at sea, maximising possibilities of rescue. And ‘rescue’ is outlined within the SAR Conference as an operation in three steps: ‘to retrieve individuals in misery’, to ‘present for his or her preliminary medical or different wants’, and ‘to ship them to a spot of security’, the place rescue is taken into account to terminate (SAR Conference, Annex, para 1.3.2). ‘Security’ on this context ought to be interpreted according to human rights and non-refoulement obligations (IMO Pointers, para 6.17) – situations that Libya doesn’t fulfil and the Libyan Coastguard can not present (S.S., para. 33 per Parliamentary Meeting of the Council of Europe; para. 35 per Council of Europe Commissioner for Human Rights; para. 70 per UNHCR; para. 73 per MSF; para. 74 per UNSMIL and UN Secretary Common). Even the UN Safety Council Decision of October 2017 permitting for motion on the excessive seas within the neighborhood of Libya for the prevention of human trafficking and migrant smuggling, exhort States to undertake motion aimed toward ‘the forestall[ion of] lack of life’ that does ‘not … undermine the human rights of people or forestall them from in search of safety’ (UNSC Res. 2380/2017, para. 9).

This is the reason, on receiving data ‘from any supply’ that individuals are in misery at sea (SOLAS Conference, Annex, Ch V, Reg 33(1)), the primary MRCC contacted should assume duty and ‘take pressing steps to make sure that the mandatory help is supplied’ (SAR Conference, Annex, para. 2.1.1). This is applicable till such time because the MRCC formally in command of the SRR inside which the incident happens assumes duty – supplied it may accomplish that according to the related provisions. Within the absence of a functioning MRCC that may take cost of rescue (as outlined within the SAR Conference), duty can’t be transferred. Subsequently, whereas the performing MRCC – Rome on this case – has a ‘proper to requisition ships [so that they] render help’ (SOLAS Conference, Annex, Ch V, Reg 33(2)), this have to be exercised according to ‘different guidelines of worldwide legislation’, together with human rights obligations (UNCLOS, Artwork 87(1)). The Libyan authorities have been unsuitable to offer ‘the mandatory help’ (SAR Conference, Annex, para. 2.1.1) – violent conduct on their half was routine, together with firing gunshots, intimidating rescue NGOs, and maltreating migrants. Confronted with the superior and available various of the Sea-Watch 3, the Rome MRCC ought to have shunned requisitioning the Ras Jadir and from asking the Libyan authorities to ‘take over’ the rescue operation.

The alternative ought to be thought of to have interaction Italy’s direct duty – or, a minimum of, to set off Italy’s complicity within the fee of Libya’s wrongful conduct vis-à-vis the candidates. The invocation of Article 16 ARSIWA, listed as a part of ‘the related authorized framework’, as submitted by the candidates and the TPIs (S.S., para. 30), is nonetheless taken no heed of.

Narrowing Down the Jurisdictional Evaluation

The correct evaluation of details and relevant legislation was basic to the right analysis of the jurisdictional threshold underneath Article 1 ECHR. The omissions described preclude this train.

I’m certain there will likely be many commentaries on this challenge. And I additionally intend to contribute to this debate in a full-length article. For now, suffice to notice a number of components that I take into account a departure from earlier caselaw and that slender down the circumstances by which extraterritorial jurisdiction could also be declared to have been exercised by the Court docket.

The primary is the way in which by which the Court docket, though counting on M.N. to recall its ‘basic ideas’ on the matter, manages to limit the circumstances by which it considers that the jurisdictional threshold has been reached in extraterritorial eventualities from 4 to 2 (S.S., para. 78 ff). Whereas in M.N. the Court docket describes the headings of efficient territorial management over an space (M.N., paras 101-103) and efficient management over a person (M.N., paras 105-106), it additionally accepts that an train of ‘public powers’ exterior a State’s territory might entail an train of jurisdiction (M.N., para. 104), as might also do the institution of ‘procedural management’ underneath sure circumstances (M.N., para. 107). In S.S., nonetheless, the Court docket dismisses the 2 latter variants of efficient management (S.S., para. 80), apparently decreasing the related circumstances to efficient management over an space (S.S., paras 91-99) and efficient management over individuals overseas (S.S., paras 100-108). These restrictions are completely consequential within the current case, the place the argumentation revolved largely round a proposal to contemplate a ‘purposeful’ understanding of jurisdiction, relying exactly on the 2 headings now eradicated by the Court docket (full argument right here and right here).

An extra restriction seems to be launched vis-à-vis non-citizens, in relation to whom what counts as efficient management over individuals overseas is circumscribed to cases of ‘bodily’ management (S.S., para 78, referring to M.N., para. 106) – which eliminates the likelihood for measures of ‘contactless management’ to set off Article 1 ECHR.

The Court docket introduces the additional caveat that establishing the ‘distinctive circumstances’ by which extraterritorial jurisdiction will likely be thought of is a matter of truth – thereby presumably decreasing the enter of de jure bases for the dedication of jurisdiction (S.S., para 80), be it stemming from customary worldwide legislation (together with the obligation to rescue) or deriving from Treaty obligations (e.g. UNCLOS, Artwork 98 and the SAR and SOLAS Conventions). As well as, the Court docket asserts that it must persuade itself of the exceptionality of the precise circumstances ‘past affordable doubt’ – a really stringent normal borrowed from prison legislation for the dedication of (particular person) prison legal responsibility (S.S., para. 96).

To conclude the revision of its ‘basic ideas’, the Court docket makes a set of further punctualizations: that the institution of efficient management ratione loci requires ‘additionally’ the institution of jurisdiction ratione personae (S.S., para. 81); that, whereas extraterritorial jurisdiction will be established exterior the ‘espace juridique’ of the Conference, this has by no means been the case hitherto (S.S., paras 82-83) – as if the Court docket needed to one way or the other recall the colonial clause in Article 56 ECHR that Al-Skeini forcefully rejected.

In opposition to this background, the appliance of those ideas – as introduced within the case – unsurprisingly result in the dismissal of the appliance. The transformation of what was supposed as an argument in favour of a ‘purposeful’ understanding is reworked by the Court docket into an inadequate case of ratione loci jurisdiction, the place the Court docket – ignoring the factual components recounted above – concludes to the inexistence of efficient management over the Libyan SRR – somewhat than over the SAR interventions of the Libyan Coastguard (S.S., para. 92). The Court docket particularly rejects that the Libyan Coastguard may very well be thought of in a ‘state of affairs of dependency’ (cf. HRC, A.S. and Others v. Italy, para. 7.8) whereby Italy would exert ‘decisive affect’ in the way in which Libya’s maritime constabulary features (S.S., para. 64)  – thought of a manifestation of ‘public powers’ by the candidates – have been exercised (S.S., para. 97). Pronouncements on the contrary by the IMO, declaring that Italy performed ‘a decisive position’ (S.S., para. 27), by MSF, documenting how between 2015 and 2018 ‘all SAR operations within the [Central] Mediterranean have been coordinated by the Italian MRCC’ (S.S., para. 73), or by UNHCR, to the impact that the Libyan ‘JRCC was sustained by Italy’ (S.S., para. 29), are paid no consideration. That the Italian authorities have educated, outfitted, and financed the Libyan Coastguard – together with by means of substantial EU assist famous by the Court docket (S.S., para. 37) – and that it has supplied it with technical, operational and political sustenance with out which it will not have been in a position to exist, not to mention to perform, is totally ignored.

When turning as to if there may be any ratione personae jurisdiction, what the Court docket does is to give attention to the truth that Rome had no management ‘over the crew of the Ras Jadir’, somewhat than establishing whether or not the Italian authorities the place exercising energy over the candidates (S.S., para. 102, confirming the defendant’s account in para. 55). But, the management the Conference requires is the one exerted by State Events over ‘everybody inside their jurisdiction’ (Artwork 1 ECHR). What issues is the management ‘over the particular person of the candidates’ (S.S., para. 90). And, a minimum of from the second of receipt of the misery name till the handover of duty to the Libyan authorities, Italy was in cost and took (freely and autonomously) the choice of transferring SAR coordination and thus management over the candidates’ destiny to the Ras Jadir (S.S., para. 59).

Having eradicated the relevance of de jure bases for the institution of jurisdiction, and rejecting the argument that launching SAR proceedings might quantity to an train of ‘procedural jurisdiction’ (M.N., para. 107), the Italian authorities are let off the hook. The Court docket’s remark that ‘[i]n order to set off a jurisdictional hyperlink, proceedings should relate to the alleged violation complained of earlier than the Court docket and have a direct influence on the query of whether or not the fabric complaints raised earlier than it fall inside the jurisdiction of the respondent State inside the which means of Article 1 of the Conference’ (S.S., para. 105, referring to H.F. and Others v. France, para. 195), somewhat than deny it, goes exactly to the guts of the candidates’ submission. This renders the Court docket’s rejection incongruent – much more so, if contemplating the argument {that a} discovering on the contrary would ‘dissuade States from intervening on the premise of their worldwide obligations to rescue individuals in misery at sea’ (S.S., para. 106). Claiming that States would then ‘discover themselves obliged, on this foundation alone, to ensure the rights protected by the Conference with regard to these individuals although that they had no [other] reference to them’ is a round argument (S.S., para. 106). If a related connection is established by the SAR proceedings, why ought to another further one be current earlier than a jurisdictional hyperlink will be decided to exist?

Conclusions and Implications

The Court docket is true that this constitutes a really ‘unsatisfactory’ interpretation of the ECHR (S.S., para. 109), which can devoid the regime of relevance in migrant rights circumstances going ahead. The P.S. part on the finish of the judgment provides insult to harm (S.S., paras 109-113). Upon ‘noting’ the quite a few stories by worldwide organisations and NGOs – a lot of which performing as TPIs within the case – and that the horrid state of affairs in Libya has not modified for the reason that Court docket’s findings in Hirsi, it’s ironic (or hypocritical) that the Court docket alerts States that ‘difficulties in managing migratory flows can not justify States resorting to practices that might be incompatible with their treaty obligations’ (S.S., para 111). If their obligations have been stated to not apply, what’s the level of this comment?

By denying the applicability of the Conference within the context of brutal pullback operations, the Court docket is producing a rift vis-à-vis the ICCPR and the jurisprudence of the UN Human Rights Committee in analogous conditions (Common Remark No. 36 and A.S. and Others v. Italy), opening up a safety hole. S.S. certainly opens up the very hole the Court docket urges State Events to keep away from: It permits exactly for:

‘the precise nature of the maritime context [to] result in the institution of a lawless space by which people will not be topic to any authorized regime able to granting them the enjoyment of the rights and ensures supplied for by the Conference’ (S.S., para. 111).

It nearly creates a ‘authorized void’ (S.S., para. 30), that’s selective and focused significantly at undesirable migrants.

In consequence, the ‘pullback’ coverage within the Central Mediterranean, emerged as a tactic deployed to attain not directly what Italy had been forbidden from doing immediately after the condemnation of its ‘pushback’ practices in Hirsi Jamaa and Ors v Italy, is allowed to proceed – a minimum of underneath the parameters of the ECHR as interpreted by the First Part of the Court docket. The course taken is casuistic, unprincipled and unreliable. It might embolden comparable and even worse practices – from extraterritorial focused killings by proxy to nuclear waste disposal – with full impunity.

Whether or not the Court docket will discover the ample quantity of exceptionality to ascertain the extraterritorial jurisdiction of the State involved within the subsequent political / divisive case is anyone’s guess. Exceptionality is within the eye of the beholder, which makes for a extremely unpredictable take a look at – thereby denting authorized certainty, the rule of legislation grounding of the Conference regime, and the Court docket’s credibility general. I augur that migrant rights circumstances should discover a new residence – the Strasbourg Court docket has demonstrated that some people are extra human than others with regards to the human rights regime of the ECHR.