SS and Others v Italy – or doubling down on Banković

I am still in shock. The publication of S.S. and Others v Italy on 12 June 2025 was long awaited.  After months of work along with the applicants, seven years later, this is a disgruntling result – not only for the applicants, but for the international human rights community as a whole. As lead counsel, it is difficult to hide my disappointment at what I consider a myopic ruling by the European Court of Human Rights, which is however bound to produce very consequential outcomes – possibly of the magnitude of Banković. This is the first case brought to the Court concerning the Italian ‘pullback’ policy, implemented through cooperation with Libyan actors, in the context of the externalisation policy carried out under the umbrella of several accords, including a dedicated Memorandum of Understanding (MoU) of 2017, and with EU backing.

The case concerns the violent ‘refoulement by proxy’ on 6 November 2017 of a group of approximately 130 migrants from a sinking dinghy by the Libyan Coastguard, acting at the request of the Italian authorities and interfering with the rescue efforts of the NGO vessel Sea-Watch 3. While Sea Watch was eventually able to rescue and bring to safety in Italy 59 passengers, at least 20 people died before or during the operation and 47 passengers were ultimately ‘pulled back’ to Libya to face ill treatment. The applicants in the case include twelve survivors of the fatal incident, amongst whom the surviving parents of two children who drowned. While ten of the applicants were rescued by Sea Watch and taken to Italy, two of them were forcibly returned to Libya by the Libyan Coastguard, where they endured ‘nightmarish’ conditions (S.S., para. 28, citing UNHCR).

Ignoring Relevant Facts

Important parts of the sequence of these events has not been taken on board by the Court – despite the painstaking reconstruction prepared by Forensic Oceanography using testimonials, radar and radio communications, geolocation and satellite data, gathered through the SAROBMED project, drawing on existing reports from UN bodies, EU institutions and other actors, and via direct data collection, including video material recorded by Sea Watch.

There are in particular two important facts to which the Court attaches no relevance, although their consideration could have changed the course of the decision. The first is noted in the Court’s own determination of the events (S.S., paras 3-17). For the Court, the fact that the Rome Maritime Rescue Coordination Centre (MRCC), upon receipt of the distress call by the applicants, decided to communicate the coordinates of the shipwreck to all vessels in the vicinity, including the Libyan Coastguard Ras Jadir, and that it specifically requested it to ‘take charge’ of the coordination of the search and rescue (SAR) operation (S.S., para. 6) carries no weight in the jurisdictional assessment under Article 1 ECHR – the main point of contention in the case.

By the Italian government’s own admission, the Rome MRCC explicitly intended, through its communication with its supposed counterpart: the Libyan Joint Rescue Coordination Centre (JRCC) – the existence of which was also in dispute – to literally ‘transfer to the Libyan authorities the responsibility for the SAR operations’ (S.S., para. 53). What responsibility was being (or could actually be) transferred, if none was said to exist in the first place, remains unclear. Perhaps the Court is suggesting that there exist some kind of transferable responsibility that does not entail any exercise of authority on the part of the transferring State, which nonetheless causes the transferred actor to ‘immediately assume control’ (S.S., para. 100) – a control that does not appear to be relevant vis-à-vis the transferring State with a view to determining its own jurisdiction.

The second factual dispute the Court glosses over and that could have led to a different result, regards the existence, first, and the suitability, second, of the supposed Libyan Search and Rescue Region (SRR) and its attached Joint Rescue and Coordination Centre (JRCC), as a body capable of effectively coordinating rescue operations worthy of the name.

Both elements are related. For valid recognition, the SAR Convention requires that SAR services be operational within the SRR being declared, so as ‘to give prompt response to distress calls’ (SAR Convention, Annex, para. 2.1.8). The SRR is defined as ‘[a]n area of defined dimensions, associated with a [maritime] rescue coordination centre [MRCC], within which search and rescue services are provided’ (SAR Convention, Annex, para. 1.3.4). Its basic purpose is to provide ‘effective arrangements for … search and rescue services’ (SAR Convention, Preamble, para. 1). This requires a functioning MRCC, equipped with ‘adequate means for the receipt of distress communications’ and ‘adequate means for communication with … rescue units and with MRCCs in adjacent areas’ (SAR Convention, Annex, para. 2.3.3.). In turn, rescue units attached to them must be ‘suitably … equipped’, staffed and managed, with appropriate ‘facilities and equipment’ for an effective response (SAR Convention, Annex, paras. 2.4.1.1, 2.5.). All of this was, and still is, however, lacking in the Libyan case.

The July 2017 Declaration, relied upon by the Italian Government, reveals as much. Unfortunately, the text, as reproduced in the judgment, does not quote the Declaration correctly or in full and limits itself to acknowledging – in a paragraph otherwise listing the allegations of the applicants – that the Libyan authorities (themselves) make ‘reference to financial and logistical difficulties temporarily impeding them to cover the entire SRR indicated’ (S.S., para. 66). The original English version of the Declaration in reality states that ‘due to lack of resources and facilities at the current 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 cover Tripoli SAR region’. The lack of capacity – again, as noted in the Declaration itself – is due to ‘the coastguard and air force capabilities ha[ving] been destroyed during the military operations in 2011’ – during the war that ousted Gaddafi, again mentioned en passant in the judgment (S.S., para. 18). This is why the Libyans, through the Declaration, explicitly request assistance to service their SRR ‘until the capabilities of the competent establishments have been rebuilt and the political situation has improved’, which, by the 6 November 2017, had not occurred.

To the contrary, at the time of events, the ‘Italian MRCC … continued to coordinate rescue operations’ in the Libyan SRR, as reported by EUNAVFORMED (Six-Monthly Report 1 January – 31 October 2016, at 11; Six-Monthly Report 1 November 2016 – 31 May 2017, at 8). In November 2017, the Libyan JRCC was still ‘far from being fully operational’ (EUNAVFORMED, Six-Monthly Report 1 June – 30 November 2017, at 3), incapable of operating at a ‘self-sustaining level’ (EUNAVFORMED, Six-Monthly Report 1 November 2016 – 31 May 2017, at 17; Six-Monthly Report 1 December 2017 – 31 May 2018, at 10), or to ‘properly carrying out the institutional tasks as MRCC’ (EUNAVOFRMED, LYCG Monitoring Report, Annex C, at 4).

This is why Italy took it to itself to secure the necessary functions and, in August 2017, launched Operation NAURAS, as an extension into Libyan territorial waters of its military mission Mare Sicuro – both of which are mentioned by the Court, again, as inconsequential allegations by the applicants and the TPIs (S.S., paras 62 and 72). NAURAS, however, included ‘a factory vessel’ docked in Tripoli tasked specifically to ‘coordinate patrol and sea rescue operations’ (Ministero degli affari esteri, La Strategia Italiana Nel Mediterraneo, December 2017, at 24). This is why, at the time of events, the Italian factory vessel ‘in Tripoli Harbour [was] acting as LNCC [i.e., Libyan Navy Communication Centre] and logistic assistance/support hub’, permanently ‘in contact with SAR assets and ITCG [i.e. Italian Coast Guard] and MRCC Centres’, thus playing the role of a floating MRCC for Libya (Mare Clausum Report, at 10). Its function was explicitly ‘the cooperation and coordination of the joint activities of the Libyan Coast Guard and Navy, with a view to carrying out their Command and Control (C2) tasks’ (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 pace e di stabilizzazione, Doc. CCL-bis n. 1, 28 December 2017, at 101). It was, therefore, via the Italian authorities, within MRCC Rome and via the NAURAS naval deployment, that the Libyan Coastguard was able to operate. As much was explicitly recognised by the Tribunale di Catania in a similar case, where it concluded that Libyan Coastguard interventions in the Central Mediterranean happened ‘under the aegis of the Italian navy’, to the point that the phone number of the Libyan Coastguard, at least until the spring of 2018, was the +39 number of the NAURAS vessel docked in Tripoli. None of this – though submitted to the Court and ascertainable through copious evidence in the public domain – has been given any significance in the assessment of the relevant facts, nor in the jurisdictional assessment.

Mischaracterising the Applicable Law

The Court also mischaracterises the applicable law. It repeats several times that it is not competent to rule on the application of the maritime Conventions or the Law of the Sea (S.S., paras 89 and 113). It goes as far as to consider that the situation at hand is not governed by the ECHR, but ‘by other rules of international law’ by which, however, the Court ‘is not bound’ (S.S., paras 112-113). This disregards the effects of the rules of customary law at stake in the case and the fact that the point was not for the Court to undertake an authoritative interpretation of the SAR and SOLAS provisions. The chorus of third-party interveners, along with the applicants, was rather requesting the Court to carry out a coherent interpretation of the ECHR in light of relevant provisions regulating the duty to render assistance and rescue at sea (S.S., paras 68, 70, and 71). The expectation was that the Court would have proceeded like in Hirsi Jamaa and Ors v Italy and considered that ‘the relevant provisions of the law of the sea’ are of significance to the interpretation of the ECHR, in general, and Article 1, in particular (Hirsi, para. 77). 

Paradoxically – albeit in a distorted way, this is what the Court appears to do nonetheless in the end, when pronouncing the actions of the Rome MRCC ‘in line with the procedure foreseen in the SAR Convention and the other relevant texts of international law’ (S.S., para. 100), or when ‘noting’ that Italy’s conduct was ‘in accordance with the provisions of international maritime law’ (S.S., para. 104). The Court makes these assertions while disregarding the detail of the relevant rules.

All maritime interventions, under Article 98 UNCLOS and the SAR and SOLAS Conventions, should be directed at the preservation of human life at sea, maximising chances of rescue. And ‘rescue’ is defined in the SAR Convention as an operation in three steps: ‘to retrieve persons in distress’, to ‘provide for their initial medical or other needs’, and ‘to deliver them to a place of safety’, where rescue is considered to terminate (SAR Convention, Annex, para 1.3.2). ‘Safety’ in this context should be interpreted in line with human rights and non-refoulement obligations (IMO Guidelines, para 6.17) – conditions that Libya does not fulfil and the Libyan Coastguard cannot provide (S.S., para. 33 per Parliamentary Assembly 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 General). Even the UN Security Council Resolution of October 2017 allowing for action on the high seas in the vicinity of Libya for the prevention of human trafficking and migrant smuggling, exhort States to undertake action aimed at ‘the prevent[ion of] loss of life’ that does ‘not … undermine the human rights of individuals or prevent them from seeking protection’ (UNSC Res. 2380/2017, para. 9).

This is why, on receiving information ‘from any source’ that persons are in distress at sea (SOLAS Convention, Annex, Ch V, Reg 33(1)), the first MRCC contacted must assume responsibility and ‘take urgent steps to ensure that the necessary assistance is provided’ (SAR Convention, Annex, para. 2.1.1). This applies until such time as the MRCC formally in charge of the SRR within which the incident occurs assumes responsibility – provided it can do so in line with the relevant provisions. In the absence of a functioning MRCC that can take charge of rescue (as defined in the SAR Convention), responsibility cannot be transferred. Therefore, while the acting MRCC – Rome in this case – has a ‘right to requisition ships [so that they] render assistance’ (SOLAS Convention, Annex, Ch V, Reg 33(2)), this must be exercised in line with ‘other rules of international law’, including human rights obligations (UNCLOS, Art 87(1)). The Libyan authorities were unsuitable to provide ‘the necessary assistance’ (SAR Convention, Annex, para. 2.1.1) – violent conduct on their part was routine, including firing gunshots, intimidating rescue NGOs, and maltreating migrants. Confronted with the superior and readily available alternative of the Sea-Watch 3, the Rome MRCC should have refrained from requisitioning the Ras Jadir and from asking the Libyan authorities to ‘take over’ the rescue operation.

The opposite should be considered to engage Italy’s direct responsibility – or, at least, to trigger Italy’s complicity in the commission of Libya’s wrongful conduct vis-à-vis the applicants. The invocation of Article 16 ARSIWA, listed as part of ‘the relevant legal framework’, as submitted by the applicants and the TPIs (S.S., para. 30), is however taken no heed of.

Narrowing Down the Jurisdictional Assessment

The accurate assessment of facts and applicable law was fundamental to the proper evaluation of the jurisdictional threshold under Article 1 ECHR. The omissions described preclude this exercise.

I am sure there will be many commentaries on this issue. And I also intend to contribute to this debate in a full-length article. For now, suffice to note a few elements that I consider a departure from previous caselaw and that narrow down the circumstances in which extraterritorial jurisdiction may be declared to have been exercised by the Court.

The first is the way in which the Court, although relying on M.N. to recall its ‘general principles’ on the matter, manages to restrict the cases in which it considers that the jurisdictional threshold has been reached in extraterritorial scenarios from four to two (S.S., para. 78 ff). While in M.N. the Court describes the headings of effective territorial control over an area (M.N., paras 101-103) and effective control over an individual (M.N., paras 105-106), it also accepts that an exercise of ‘public powers’ outside a State’s territory may entail an exercise of jurisdiction (M.N., para. 104), as may also do the establishment of ‘procedural control’ under certain circumstances (M.N., para. 107). In S.S., however, the Court dismisses the two latter variants of effective control (S.S., para. 80), apparently reducing the relevant circumstances to effective control over an area (S.S., paras 91-99) and effective control over persons abroad (S.S., paras 100-108). These restrictions are absolutely consequential in the present case, where the argumentation revolved in large part around a proposal to consider a ‘functional’ understanding of jurisdiction, relying precisely on the two headings now eliminated by the Court (full argument here and here).

A further restriction appears to be introduced vis-à-vis non-citizens, in relation to whom what counts as effective control over persons abroad is circumscribed to instances of ‘physical’ control (S.S., para 78, referring to M.N., para. 106) – which eliminates the possibility for measures of ‘contactless control’ to trigger Article 1 ECHR.

The Court introduces the further caveat that establishing the ‘exceptional circumstances’ in which extraterritorial jurisdiction will be considered is a matter of fact – thereby presumably reducing the input of de jure bases for the determination of jurisdiction (S.S., para 80), be it stemming from customary international law (including the duty to rescue) or deriving from Treaty obligations (e.g. UNCLOS, Art 98 and the SAR and SOLAS Conventions). In addition, the Court asserts that it needs to convince itself of the exceptionality of the specific circumstances ‘beyond reasonable doubt’ – a very stringent standard borrowed from criminal law for the determination of (individual) criminal liability (S.S., para. 96).

To conclude the revision of its ‘general principles’, the Court makes a suite of additional punctualizations: that the establishment of effective control ratione loci requires ‘also’ the establishment of jurisdiction ratione personae (S.S., para. 81); that, while extraterritorial jurisdiction can be established outside the ‘espace juridique’ of the Convention, this has never been the case hitherto (S.S., paras 82-83) – as if the Court wanted to somehow recall the colonial clause in Article 56 ECHR that Al-Skeini forcefully rejected.

Against this background, the application of these principles – as presented in the case – unsurprisingly lead to the dismissal of the application. The transformation of what was intended as an argument in favour of a ‘functional’ understanding is transformed by the Court into an insufficient case of ratione loci jurisdiction, where the Court – ignoring the factual elements recounted above – concludes to the inexistence of effective control over the Libyan SRR – rather than over the SAR interventions of the Libyan Coastguard (S.S., para. 92). The Court specifically rejects that the Libyan Coastguard could be considered in a ‘situation of dependency’ (cf. HRC, A.S. and Others v. Italy, para. 7.8) whereby Italy would exert ‘decisive influence’ in the way Libya’s maritime constabulary functions (S.S., para. 64)  – considered a manifestation of ‘public powers’ by the applicants – were exercised (S.S., para. 97). Pronouncements to the contrary by the IMO, declaring that Italy played ‘a decisive role’ (S.S., para. 27), by MSF, documenting how between 2015 and 2018 ‘all SAR operations in the [Central] Mediterranean were coordinated by the Italian MRCC’ (S.S., para. 73), or by UNHCR, to the effect that the Libyan ‘JRCC was sustained by Italy’ (S.S., para. 29), are paid no attention. That the Italian authorities have trained, equipped, and financed the Libyan Coastguard – including through substantial EU support noted by the Court (S.S., para. 37) – and that it has provided it with technical, operational and political sustenance without which it would not have been able to exist, let alone to function, is completely ignored.

When turning to whether there is any ratione personae jurisdiction, what the Court does is to focus on the fact that Rome had no control ‘over the crew of the Ras Jadir’, rather than establishing whether the Italian authorities where exercising power over the applicants (S.S., para. 102, confirming the defendant’s account in para. 55). Yet, the control the Convention requires is the one exerted by State Parties over ‘everyone within their jurisdiction’ (Art 1 ECHR). What matters is the control ‘over the person of the applicants’ (S.S., para. 90). And, at least from the moment of receipt of the distress call until the handover of responsibility to the Libyan authorities, Italy was in charge and took (freely and autonomously) the decision of transferring SAR coordination and thus control over the applicants’ fate to the Ras Jadir (S.S., para. 59).

Having eliminated the relevance of de jure bases for the establishment of jurisdiction, and rejecting the argument that launching SAR proceedings may amount to an exercise of ‘procedural jurisdiction’ (M.N., para. 107), the Italian authorities are let off the hook. The Court’s observation that ‘[i]n order to trigger a jurisdictional link, proceedings must relate to the alleged violation complained of before the Court and have a direct impact on the question of whether the material complaints raised before it fall within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention’ (S.S., para. 105, referring to H.F. and Others v. France, para. 195), rather than deny it, goes precisely to the heart of the applicants’ submission. This renders the Court’s rejection incongruent – even more so, if considering the argument that a finding to the contrary would ‘dissuade States from intervening on the basis of their international obligations to rescue persons in distress at sea’ (S.S., para. 106). Claiming that States would then ‘find themselves obliged, on this basis alone, to guarantee the rights protected by the Convention with regard to those persons even though they had no [other] connection with them’ is a circular argument (S.S., para. 106). If a relevant connection is established by the SAR proceedings, why should some other additional one be present before a jurisdictional link can be determined to exist?

Conclusions and Implications

The Court is right that this constitutes a very ‘unsatisfactory’ interpretation of the ECHR (S.S., para. 109), which may devoid the regime of relevance in migrant rights cases going forward. The P.S. section at the end of the judgment adds insult to injury (S.S., paras 109-113). Upon ‘noting’ the numerous reports by international organisations and NGOs – many of which acting as TPIs in the case – and that the horrid situation in Libya has not changed since the Court’s findings in Hirsi, it is ironic (or hypocritical) that the Court alerts States that ‘difficulties in managing migratory flows cannot justify States resorting to practices that would be incompatible with their treaty obligations’ (S.S., para 111). If their obligations have been said not to apply, what is the point of this remark?

By denying the applicability of the Convention in the context of brutal pullback operations, the Court is generating a rift vis-à-vis the ICCPR and the jurisprudence of the UN Human Rights Committee in analogous situations (General Comment No. 36 and A.S. and Others v. Italy), opening up a protection gap. S.S. indeed opens up the very gap the Court urges State Parties to avoid: It allows precisely for:

‘the specific nature of the maritime context [to] lead to the establishment of a lawless area in which individuals are not subject to any legal regime capable of granting them the enjoyment of the rights and guarantees provided for by the Convention’ (S.S., para. 111).

It virtually creates a ‘legal void’ (S.S., para. 30), that is selective and targeted particularly at unwanted migrants.

As a result, the ‘pullback’ policy in the Central Mediterranean, emerged as a tactic deployed to achieve indirectly what Italy had been forbidden from doing directly after the condemnation of its ‘pushback’ practices in Hirsi Jamaa and Ors v Italy, is allowed to continue – at least under the parameters of the ECHR as interpreted by the First Section of the Court. The course taken is casuistic, unprincipled and unreliable. It may embolden similar or even worse practices – from extraterritorial targeted killings by proxy to nuclear waste disposal – with full impunity.

Whether the Court will find the sufficient amount of exceptionality to establish the extraterritorial jurisdiction of the State concerned in the next political / divisive case is anybody’s guess. Exceptionality is in the eye of the beholder, which makes for a highly unpredictable test – thereby denting legal certainty, the rule of law grounding of the Convention regime, and the Court’s credibility overall. I augur that migrant rights cases will have to find a new home – the Strasbourg Court has demonstrated that some humans are more human than others when it comes to the human rights regime of the ECHR.