S.S. and Ors v Italy: Extraterritorial policies of ‘contactless control’

In 2012, the Grand Chamber of the European Court of Human Rights found in its Hirsi judgment that Italy’s ‘pushback’ campaign—orchestrated through multiple accords, including the 2008 Berlusconi-Gaddafi Treaty of Friendship—breached international law, and specifically the prohibition of torture and inhuman or degrading treatment and the prohibition of collective expulsion. Despite their unlawfulness, these accords have been reactivated through a 2017 Memorandum of Understanding between Italy and Libya, which has led to Italy training, equipping, and financing—as well as providing far-reaching technical, strategic, and political support to—the so-called Libyan Coast Guard (LYCG).

In the last decade, and in an attempt to stem migrant crossings of the Mediterranean into Europe, Italy and the EU have enacted an undeclared operation, which has been termed ‘Mare Clausum’. The operation has consisted of two complementary actions: first, rescue NGOs have been criminalised in the attempt to limit their humanitarian activities; second, the LYCG has been progressively enabled by Italy and the EU to intercept and pull back migrants to Libya.

The bordering methods that have proliferated along European (as well as other) borders have systemic implications for the rights of migrants, including their right to life and the prohibition of torture. ‘Pullbacks’ are one feature of a growing set of violent practices, which impinges on migrant rights, while relying on the extraterritorialisation of border controls as techniques of avoidance of legal responsibility. The increasing number of deaths of migrants in the Mediterranean in recent years is a direct result of bordering policies.

On 6 November 2017, a boat carrying between 130 and 150 people departed from Tripoli. As the boat reached international waters, the sea became rougher and the boat began taking in water. Some of the people on board recalled that they contacted the Italian Coast Guard for help via satellite phone. The Italian Coast Guard sent a distress Inmarsat signal to all boats transiting in the area, including the rescue NGO Sea Watch and the patrol vessel Ras Jadir of the Libyan Coast Guard. Sea Watch and the Ras Jadir simultaneously directed themselves towards the migrants’ boat in distress.

Even if the Ras Jadir made it first on scene, it did not initiate rescue operations immediately. Migrants recall that not only did the Ras Jadir not help them, but also that its arrival on scene “created a big wave, which made people sink and others drift away,” including the child of one of the applicants. The LYCG crew then “beat people with ropes who were in the water.” By contrast, the Sea Watch crew started rescue procedures right away, assuming on-scene command (OSC). The LYCG objected to Sea Watch’s involvement even though the Ras Jadir was initially unresponsive to radio communication and lacked the necessary equipment to perform rescue, including rigid-hulled inflatable boats (RHIBs).

Without clarity as to who was responsible for the SAR operation, a confrontational rescue operation ensued. While Sea Watch was eventually able to rescue and bring to safety in Italy 59 passengers, at least 20 people died before or during these events and 47 passengers were ultimately pulled back to Libya, where several faced grave human rights violations—including being arbitrarily detained, beaten, and sold to another captor who tortured them for ransom.

The facts of the case have been reconstructed in detail by the research hub Forensic Oceanography, through evidence collected by the Search and Rescue Observatory for the Mediterranean (SAROBMED), on the basis of materials provided by the search and rescue group Sea Watch. The evidence includes video footage and audio recordings of the event, survivors’ testimonies, interviews with key actors, and corroborative documentation gathered from a variety of official sources.

The case exposes how the intervention of the Libyan Coast Guard follows the terms of the Memorandum of Understanding (MoU) concluded in February 2017 between Italy and the Libyan Government of National Accord. As a consequence of this, as well as of the underlying 2008 Treaty of Friendship signed by the Gaddafi and Berlusconi governments, Italy has been enabling and coordinating the Libyan response at sea through targeted funding, equipment, training, and direct involvement in the coordination and communication structures of the so-called Libyan Coast Guard, to the point that, according to the Italian judiciary, Libyan interventions happen “under the aegis of the Italian navy”. The application asserts that such deep cooperation establishes Italy’s legal responsibility for the wrongdoing of Italian and Libyan actors, on the basis of the deployment by Italy of “contactless control” techniques that amount to “functional jurisdiction” that does jurisdiction and obligations under European human rights law (Moreno-Lax).

When jurisdiction is understood in a ‘functional’ sense—as an expression of public powers that may combine elements of legislative, executive, and/or judicial action—“there is no longer a need for unjustified distinctions between territorial and extraterritorial, or between personal and spatial manifestations” (Moreno-Lax). This case is a paradigmatic example of a ‘functional’ approach to jurisdiction through an examination of policy and operational control throughout the whole operation, including in terms of its reasonably foreseeable impacts and the specific knowledge held about its likely consequences. Therefore, Italy’s actions—including those it orchestrated in Libya—should be taken as a whole, including decisions adopted in Italy with extraterritorial effects abroad.

The comprehensive support provided to the LYCG, we argue, creates a system of “contactless, yet effective, control of the SAR and interdiction functions of Libya that amounts to an exercise of functional jurisdiction” (Moreno-Lax). The case argues that Italy’s actions (and inactions) led to the violations of the applicants’ rights under the European Convention on Human Rights, including their right to life, to be free from torture and cruel, inhuman or degrading treatment and punishment, and from collective expulsion.

The case pursues a systemic critique of the ‘extraterritorialisation’ of border controls—through the evasion of responsibility under European human rights law following the Hirsi decision—as a mechanism of legal irresponsibility. To this end, it argues, from with/in the law, that it is not only effective control over persons or territory that matters for the activation of the European Convention of Human Rights’ obligations, but rather that “control over (general) policy areas or (individual) tactical operations, performed or producing effects abroad, matters as well” (Moreno-Lax). Control should be deemed ‘effective’ when it is determinative of the material course of events based on the exercise of jurisdiction, and not solely on the basis of the intensity or directness of the physical force exercised; even when the relevant activity takes place from a distance.

The broader counternarratives mobilised around the case since its filing in 2018 have sought to capture, expose, and contest the politico-legal infrastructures of the EU’s “orchestration” (Müller & Slominski) of migration control through containment and refoulement to Libya—including the EU’s efforts to invisibilise the violence of its cooperative framework with Libya as forms of “containment development” (Walia) and “clientelism” (Spijkerboer).

While it has been pending before the Court, the case has contributed to collective advocacy efforts at the international and European levels that have resulted in recognition of some of the harms caused by the EU’s border control regime by various UN and international bodies. For instance, the UN Fact-Finding Mission on Libya, to which we made a submission in 2021, found in its 2023 report that:

“crimes against humanity were committed against migrants in places of detention under the actual or nominal control of Libya’s Directorate for Combating Illegal Migration, the Libyan Coast Guard and the Stability Support Apparatus [which have] received technical, logistical and monetary support from the European Union and its member States for, inter alia, the interception and return of migrants.”

It also found that “the European Union and its member States, directly or indirectly, provided monetary and technical support and equipment, such as boats, to the Libyan Coast Guard and the Directorate for Combating Illegal Migration that was used in the context of interception and detention of migrants.”

The International Criminal Court’s Prosecutor has been called to examine European actors allegedly complicit in migration-related crime in the context of its investigation of Libyan actors, and the UN has imposed sanctions for ‘trafficking’ on Libyans closely associated with the country’s EU-funded Coast Guard.

3 May 2018: Application lodged with the European Court of Human Rights (while members of de:border were part of the Global Legal Action Network (GLAN)) 
26 June 2019: Application communicated by the European Court of Human Rights
15 January 2020: Received Government observations
5 March 2020: Submitted reply to Government observations
4 June 2020: Received Government reply to our observations
13 September 2020: Submitted new evidence to the European Court of Human Rights
18 June 2021: Received request from the European Court of Human Rights to inform it as to the whereabouts of the applicants and whether they wish to maintain their application
27 August 2021: Submitted information on applicants’ contact details, whereabouts, and intention to maintain the application to the European Court of Human Rights

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

Violeta Moreno-Lax, ‘A New Common European Approach to Search and Rescue? Entrenching Proactive Containment’, Odysseus Network (2021) 190-219

Violeta Moreno-Lax, ‘Protection at Sea and the Denial of Asylum’, in Costello, Foster, and McAdam (eds), The Oxford Handbook of International Refugee Law (OUP, 2021)

Violeta Moreno-Lax, ‘The Architecture of Functional Jurisdiction’, German Law Journal 21(3) (2020) 385–416

Violeta Moreno-Lax, Daniel Ghezelbash and Natalie Klein, ‘Between Life, Security and Rights: Framing the Interdiction of “Boat Migrants” in the Central Mediterranean and Australia’, Leiden Journal of International Law 32(4) (2019) 715-740

Violeta Moreno-Lax and Martin Lemberg-Pedersen, ‘Border-induced Displacement: The Ethical and Legal Implications of Distance-creation through Externalization’, Questions of International law 56 (2019) 5-33

Violeta Moreno-Lax, ‘The EU Humanitarian Border and the Securitization of Human Rights: The “Rescue-through-Interdiction / Rescue-without-Protection” Paradigm’, Journal of Common Market Studies 56(1) (2018) 119-140

Charles Heller, Lorenzo Pezzani, Itamar Mann, Violeta Moreno-Lax and Eyal Weizman, ‘It’s an Act of Murder’: How Europe Outsources Suffering as Migrants Drown, New York Times, 26 December 2018

Nigerian migrants sue Italy for aiding Libyan coast guard, Reuters, 8 May 2018

Nicole Winfield, Migrants accuse Italy of responsibility for Libyan abuses, Associated Press, 8 May 2018

Harriet Agerholm, Italy sued over migrant ‘push back’ deal with Libya after 20 migrants drown in Mediterranean, The Independent, 8 May 2018

Ylenia Gostoli, Lawyers pin blame for deaths of 20 migrants at sea on Italy, Al-Jazeera, 8 May 2018

Stephanie Kirchgaessner and Lorenzo Tondo, Italy’s deal with Libya to ‘pull back’ migrants faces legal challenge, The Guardian, 8 May 2018

Alessandra Ziniti, Migranti, Ong denunciano l’Italia a Corte dei diritti umani: ‘Accordi con Libia mascherano respingimenti’, La Repubblica, 8 May 2018

17 Nigerian migrants sue Italy for returning them to Libya, Vanguard Nigeria, 8 May 2018

On the frontline of the Mediterranean refugee crisis, Movie by Journeyman TV for Schweizer Radio und Fernsehen, 4 May 2018

Finn Ireland, ‘Challenging the boundaries of accountability: strategic litigation and jurisdiction in European migration control policies’, Australian Journal of Human Rights (2023)

Fadia Dakka and Daria Davitti, ‘International Human Rights Law and Time-Space at Sea: A Rhythmanalysis of Prosecuting Search and Rescue’ in McNeilly and Warwick (eds), The Times and Temporality of International Human Rights Law (Bloomsbury 2022)

Mariagiulia Giuffré, ‘A functional-impact model of jurisdiction: Extraterritoriality before of the European Court of Human Rights’, QIL (2021)

Anna Fazzini, ‘Il caso S.S. and Others v. Italy nel quadro dell’esternalizzazione delle frontiere in Libia: osservazioni sui possibili scenari al vaglio della Corte di Strasburgo’, Diritto, Immigrazione e Cittadinanza (2020)