S.D.G. v Italy: Privatised ‘pushbacks’ and human rights abuses

The cooperation and collaboration between Italy and Libya on migration and border control has a long history. In the framework of the 2008 Treaty of Friendship, Partnership and Cooperation, Italy carried out several naval operations to intercept migrants and directly return them to Libya. After the European Court of Human Rights delivered its judgement in Hirsi Jamaa and Others v Italy, this modality of migration control was suspended. Thereafter, the Italian government adopted strategies that increasingly involved remote and ‘contactless’ measures, while continuing to exercise strategic control over the so-called LYCG as its proxy.

Italy’s adoption of a ‘closed port policy’ for vessels which conducted rescues and its progressive criminalisation of search and rescue NGOs, as well as the retreat of the EU’s search and rescue missions at sea, created a protection vacuum for migrant in distress in the central Mediterranean. In this vacuum, only two actors were allowed to remain: the so-called LYCG and private merchant vessels. Merchant ships were forcibly mobilised by Italy to return refugees and other migrants to Libya, furthering the EU’s agenda of containment and refoulement, both despite their fundamental legal obligations and because of the inherent protection and accountability gaps in international law.

In early November 2018, a group of 93 migrants fleeing Libya (including SDG, a South-Sudanese national) was forcefully returned to Libya after they were “rescued” at sea by a private merchant ship, the Nivin, flagged to Panama. A Spanish surveillance aircraft operating within the Italian-coordinated EUNAVFOR MED first sighted the migrants’ boat in the high seas and passed the information on to the Italian MRCC, which in turn relayed the information to the so-called LYCG, to conduct an interception and ‘pushback’ by proxy. However, as the LYCG were unable to perform this task, the Italian Coast Guard, communicating on behalf of the Libyan Coast Guard, directed the Nivin, which was transiting in the area, to intervene. The so-called LYCG then assumed coordination, taking over from the Italian MRCC, but communicating with the merchant ship from the Libyan Naval Coordination Centre (LNCC) held on board an Italian Navy ship docked in Tripoli harbour (and deployed in Libya as part of the Italian Navy’s Operation Nauras).

At 03h30 UTC, 08/11/2018, the Nivin reached the migrant boat. Crew members told “rescued” migrants that they would be taken to Italy, and on the basis of that promise, they accepted to board the Nivin. However, the shipmaster had received orders from the so-called LYCG to proceed towards Misrata to complete disembarkation. At 01h00 UTC, 09/11/2018, the Nivin arrived at the meeting position with the so-called LYCG. “Rescued” migrants were again deceived and told that they had arrived in Italy. Once they realised that the men on the other boat were speaking English with a Libyan accent, they refused to board the LYCG boat. To avoid resistance, migrants were told that the Nivin would navigate towards Misrata to unload the cargo of cars it was carrying, and then proceed to bring them away from Libya, to which they acquiesced on these terms.

At 06h00 UTC, 10/11/2018, the Nivin arrived in Misrata, where migrants were told by “Libyans in soldier uniforms” that “willing or not, you need to disembark.” Resisting their refoulement, they locked themselves in the hold of the ship for 10 days, but were eventually violently removed from the vessel by Libyan security forces, who proceeded to detain and subject them to multiple forms of ill-treatment, including torture.

SDG, as well as several other passengers, was shot during the group’s forced disembarkation. He did not receive treatment upon disembarkation and the bullet lodged in his leg was extracted only months later. He was subsequently transferred to an unidentified location in Misrata by the Libyan police, where he was kept for five days, during which Libyan armed guards interrogated and beat him. He was finally transferred to the Zliten Detention Centre, where he was again subjected to beatings and inhuman and degrading treatment. In early June 2019, SDG was finally brought to Misrata Hospital to have the bullet removed from his leg. While undergoing treatment, he seized the opportunity of less intense surveillance and escaped. SDG attempted to leave Libya twice—the first time unsuccessfully, as he was intercepted by the so-called LYCG, and the second time successfully, as he managed to reach Maltese territory.

This individual complaint was filed against Italy with the UN Human Rights Committee on behalf of SDG, who was intercepted in the high seas by a Panamanian merchant vessel, the Nivin, in November 2018. The interception operations were coordinated by the Italian Maritime Rescue Coordination Centre (MRCC) in cooperation with, or rather in lieu of, the so-called Libyan Coast Guard (LYCG).

We submitted that, although SDG was located outside of any territory effectively controlled by Italy, his rights were decisively impacted by the activities of Italian authorities in a ‘direct and foreseeable manner’. The case argues that Italy exercised power and ‘effective control’ over the enjoyment of SDG’s rights in a situation of distress at sea, triggering the chain of events that led to the violations of his rights under the International Covenant on Civil and Political Rights (ICCPR), including the right to life and the right to leave any country.

By challenging the use of private merchant vessels to conduct refoulement and by relinquishing its responsibility to offer a port of safety, the case is the first effort to seek accountability for merchant vessels’ systemic implication in the infrastructure of border violence.

The legal submission made use of evidence collected and analysed by Forensic Oceanography, part of the Forensic Architecture research agency based at Goldsmiths, University of London (with Charles Heller as lead investigator). The report published by Forensic Oceanography combined the analysis of multiple sources of evidence to offer a detailed reconstruction of the incident, demonstrating that ‘privatised pushbacks’ have increased since June 2018.

SDG v Italy is the first complaint brought to the UN Human Rights Committee regarding a privatised ‘pushback’ in the central Mediterranean, and the first to allege that the (in)actions of the Italian authorities via private vessels constitute an exercise of so-called ‘impact jurisdiction’, based on the extraterritorial impact of states’ administrative actions. Looking at the intersections between international human rights law and the law of the sea, the complaint challenges Italy’s removal of border-crossers from recognition and protection by law—as a form of punishment for defying containment regimes—and its attempt to evade responsibility by delegating such removal to a private third party.

The enlistment of merchant ships in search and rescue operations contributes to the EU and its Member States’ de-responsabilisation and externalisation policies by deflecting and diluting control and responsibility structures. The role of merchant ships has shifted from privatised rescue operations in the early 2010s, when they were mobilised by the Italian Coast Guard and instructed to disembark rescued migrants in safe European ports, to ‘privatised pushbacks’, in which they are instructed to interdict and disembark intercepted individuals in places of unsafety—in breach of their obligations under the 2004 International Maritime Organisation’s ‘Guidelines on the Treatment of Persons Rescued at Sea’ and the Convention for the Safety of Life at Sea (cf. failing to follow MRCC instructions could also constitute a breach of SOLAS and carry significant commercial implications).

While the complaint is narrated through the lens of international human rights law, it strategically accounts for commercial maritime law and the role of maritime actors, including the International Chamber of Shipping (ICS), whose 2015 guidelines on large scale rescue operations at sea recognise that, while “merchant ships are not best suited to conduct large scale operations that may involve the rescue of hundreds of people at a time, it is likely that [merchant] ships will continue to be called upon to assist by Rescue Coordination Centres (RCCs) for the foreseeable future”. We and others have advocated for the ICS to define a ‘place of safety’ in line with international law, as a response to European actors’ engaged in ‘privatised pushbacks’ since 2018.

Unlike the European Court of Human Rights—which has been the main legal forum for cases of ‘pushbacks’ at the EU’s borders (see also SS and Ors v Italy and Aegean ‘driftback’ cases)—the Human Rights Committee could have offered so-called ‘general remedies’ that prescribe systemic forms of relief beyond the specific reparative measures in the individual’s complaint. The complaint requested that Italy recognise the harms, undertake policy and legal reforms, and take accountability measures for systemic practices of ‘pushbacks’, as well as ensure transparency around its border enforcement activities (para. 105 of the complaint).

In contrast to the individualist justice of European human rights law, the case sought a measure of systemic justice from within the law by exposing and reversing the burden otherwise placed on individual claimants to prove the harm caused to them by violent bordering policies in order to justify “interference” with the state’s presumptive rights to control migration, even by violent means and with harmful impacts  (Spijkerboer).

19 December 2019: Complaint filed with the UN Human Rights Committee (while members of de:border were part of the Global Legal Action Network (GLAN))
11 February 2020: UN Human Rights Committee requested further information on the exhaustion of domestic remedies
9 July 2020: Response shared with the UN Human Rights Committee
3 September 2020: UN Human Rights Committee declared the complaint inadmissible due to non exhaustion of domestic remedies *

Since the complaint was declared inadmissible, ASGI submitted an access to records request to the Italian State Council with a view to filing an extra-contractual damages civil claim. In April 2024, however, the Italian State Council refused our request to access records related to the pushback. In light of this refusal, we are currently considering, together with ASGI, resubmitting the case to the UN Human Rights Committee.

* Given the spurious grounds for the Committee’s inadmissibility decision, and the implications thereof for  similar complaints, we are mapping similar cases and decisions on the effectiveness of domestic remedies at regional and international levels (see, strategic litigation mapping project).

Noemi Magugliani and Vicky Kapogianni, ‘When aerial surveillance becomes the sine qua non for interceptions at sea: Mapping the EU and its Member States’ complicity in border violence’ in Czech, Heschl, Lukas, Nowak and Oberleitner (eds), European Yearbook on Human Rights 2023 (Intersentia, 2023)

Valentina Azarova, Amanda Brown, Charles Heller, Niamh Keady-Tabbal, Noemi Magugliani, Itamar Mann, Violeta Moreno-Lax and Lorenzo Pezzani, ‘Documenting and litigating against the shifting practices of refoulement across the EU’s maritime frontier’, Asyl 3 (2021) 13-17

Jean-Pierre Gauci, ‘When Private Vessels Rescue Migrants and Refugees: A Mapping of Legal Considerations’, The British Institute of International and Comparative Law (2020) (Noemi Magugliani, co-lead, contributed to the research as part of the expert advisory group)

Noemi Magugliani, ‘SDG v Italy, Individual Communication to the UN Human Rights Committee’, at Externalisation of borders: Detention practices and denial of the right to asylum, Association for Juridical Studies on Immigration (ASGI), Lagos (2020)

Alessandra Ziniti, Migranti, un report accusa l’Italia: ‘Respingimento illegale dei 93 salvati dal mercantile Nivin e riportati in Libia con la forza’, Repubblica, 18 December 2019

Italy faces complaint at UN over ‘abusive’ Libya asylum returns, France24, 18 December 2019

Marina Della Croce, Migrants bring UN case against Italy for pushing them back to Libya, Il Manifesto, 20 December 2019

After the ‘migration crisis’: focus on search and rescue in the Mediterranean, OpenDemocracy, 2020

Silvia Dimitrova, ‘Rethinking “Jurisdiction” in International Human Rights Law in Rescue Operations at Sea in the Light of AS and Others v Italy and AS and Others v Malta: A New Right to be Rescued at Sea?’, Israel Law Review 56(1) (2023) 120–139

Charles Heller and Lorenzo Pezzani, ‘The Nivin and El Hiblu 1 cases: Migrant resistance against privatised pushbacks’ in Kretzschmar, DeBono, Kalweit, Kopp, Mainwaring and Stierl (eds), Free the El Hiblu 3 (2022)

Annick Pijnenburg and Kris van der Pas, ‘Strategic Litigation against European Migration Control Policies: The Legal Battleground of the Central Mediterranean Migration Route’, European Journal of Migration and Law 24 (2022) 401–429

Silvia Borelli, ‘Pushing Back Against Push-backs: A Right of Entry for Asylum Seekers Unlawfully Prevented from Reaching Italian Territory’, Diritti umani e diritto internazionale 14(1) (2020) 236-245

Boris Wijkström and Ousman Noor, ‘Can Italy be Held Accountable under Article 20 UNCAT for its Role in the “Pull-back” of Migrants in the Mediterranean?’, Asyl 3 (2020) 15