In 2012, the European Court of Human Rights (the Court) condemned Italy for rescuing persons in distress and transshipping them to the so-called Libyan Coast Guard, whereas Libya cannot be defined as a place of safety (Hirsi Jamaa and others v Italy). Therefore, the European Union and states had to adapt and engage in deals such as the 2017 Memorandum of Understanding between Libya and Italy, in order to further outsource their duties to Libya and in short, ensure that persons do not cross the central Mediterranean.
On 6 November 2017, persons in distress at sea reached out to the Italian authorities, who coordinated their “rescue”, meaning their subsequent violent interception by the so-called Libyan Coast Guard, with a ship recently gifted by Italy within the MoU. The Italian authorities even intervened with a helicopter when the so-called Libyan Coast Guard started using violence against the people on the move. The NGO ship Sea-Watch 3, which was on-scene as well, was able to rescue 59 persons, while 47 persons were forcibly pulled back to Libya. At least 20 persons died.
Credits: Lisa Hoffmann / Sea-Watch
Consequently, in 2018, the Court had to position itself once again: does it violate the European Convention on Human Rights (the Convention) to indirectly coordinate an interception, and even intervene on-scene with a helicopter? Overall, does it violate the European Convention on Human Rights to ensure that interceptions to Libya take place with financial, material support and trainings – with the knowledge that since 2012, Libya is not a place of safety?
This time, in its decision on 12th June 2025, the Court responded that it could not rule on the question whether Italy violated the Convention, because of missing “jurisdiction”.
In the first section of the article, we will analyze the Court’s ruling in relation to the missing “jurisdiction” and explain why it is detached from the reality witnessed by people on the move and NGOs at sea on a daily basis. In the second section, we’ll look into the legal loophole perpetuated by the Court and its potential reason. Finally, we’ll briefly discuss the aftermath of this decision, as civil fleet.
1. A technical decision detached from the reality
The Court was asked to reply on accounts of violations of right to life, prohibition of torture, non-refoulement, right to an effective remedy.
However, the judges stopped at the mere analysis of procedural requirements: the application of Article 1. In other words, the Court cannot rule if the convention cannot be applied. And the convention can only be applied if the state (in this case, Italy) had “jurisdiction”. The answer would be quite obvious, would the case occur on the Italian physical territory. However, since the case took place on the high seas – an area which does not belong to anyone according to the UN Convention on the Law of the Sea – the Court applied only narrow conditions required under international law.
Specifically, that there needs to be a control “ratione loci” (control of the territory), or “ratione personae” (“state agent authority; control over the applicants”). The Court applied these requirements in a very strict manner towards ultimately deciding that no, Italy had no “jurisdiction” and therefore, that the Court was not entitled to rule at all.
However – this decision is detached from reality. For every person active in the central Mediterranean sea, it is clear that without the continuous financial, material, but also operational support coming from Italy, Malta and the European Union (among others), the so-called Libyan Coast Guard would not be able to conduct interceptions to Libya. In its ruling, the Court insisted that the so-called Libyan Coast Guard acted “autonomously” (§102) and even refused to “respond” to the Italian helicopter which was on-scene. Which, according to the Court, is proof that the Italian authorities did not have “control” over them and hence that Italy’s responsibility could not be engaged. That the so-called Libyan Coast Guard ignored calls on the radio is a fact likely showing once again their militia modus operandi. But how could the judges ignore other irrefutable facts, forcing the UN Fact Finding Mission on Libya to publicly state that “the European Union has aided and abetted” rights violations against people on the move? Doesn’t this lead to any kind of “control”?
Even more astonishing is that according to the Court, coordinating a rescue operation cannot systematically lead to any kind of jurisdiction. An interpretation of this kind would lead to a “chilling effect” on states, and “dissuade” them from rescuing persons in distress (§106). This reasoning is wrong. States are bound to human rights law and international maritime law.
The Court could have defended human rights and applied high standards towards protecting persons in distress in the Mediterranean. Instead, the Court imagined that states may be reluctant to engage in SAR because of their responsibilities related to human rights law. Firstly, European states are not engaging in SAR not because of “potential human rights responsibilities”, but because it means disembarking persons in a place of safety, which can only be Europe in this context. And secondly, persons have to be rescued in any case, and it is therefore the duty of states and their responsibility to comply with the law. As well as to be held accountable if they are involved in violations of the law, such as systematic interceptions to Libya. A reasoning like the Court’s pushes Italy to send out more inmarsat messages “on behalf of the (so-called) Libyan Coast Guard”, instead of actually engaging in search and rescue operations, with complete impunity.
Therefore, the Court omitted to consider the reality. The Court chose a very narrow formal perspective or reading of the law, which in the end, contradicts the reality as well as pure facts. Hence, the judges dismissed the case because of a lack of fulfillment of a procedural requirement: “jurisdiction”.
2. Pressures on the Court: judges closed their eyes to abuses
Beyond the mere requirement of “jurisdiction”, the judges adopted a very strict approach throughout the entire decision. In SS and others v Italy, the Court ignored compelling “Third-Party interventions” by the UNHCR, the Council of Europe Commissioner for Human Rights or prestigious organisations such as Amnesty International and Human Rights Watch, ECRE, AIRE Centre, ICJ, Dutch Refugee Council. The Court even refused to declare whether there was or was not a Libyan SAR zone at the time, in November 2017 (§89) – although it was a disputed fact between the applicants and Italy. Indeed, the judges considered this point to be outside of their scope, which is to rule on the European Convention of Human Rights only. On the other hand, matters related to the SAR zones are ruled by the Search and Rescue (SAR) Convention.
To better understand this ruling, I recommend a reading of the §§ 109 to 113, especially the following excerpts:
“[The Court] does not lose sight of the fact that they were faced with a tragic situation in which a number of people lost their lives, including the children of two among them, and that they also ran the risk of being sent back to Libya, a country they accuse of systematically failing to respect human rights. As to the latter point, the Court can only note that all the reports in its possession from international bodies and NGOs demonstrate that, at the material time, asylum-seekers, refugees and migrants in Libya were at risk of torture, slavery and discrimination, such that the situation in that country was no more favourable than it was found to have been in the Hirsi Jamaa and Others case [cited above].“
“the Court notes that the applicants’ allegations to the effect that the practice of entering into bilateral agreements on migration with third states has the effect of placing extremely vulnerable individuals at serious risk of infringements of their fundamental rights. “
“the Court has previously emphasised, notwithstanding the right of states to establish their own immigration policies, that problems with managing migratory flows cannot justify having recourse to practices which are incompatible with their obligations under the Convention (…). Furthermore, the special nature of the maritime environment cannot justify an area outside the law where individuals are covered by no legal system capable of affording them enjoyment of the rights and guarantees protected by the Convention which the states have undertaken to secure to everyone within their jurisdiction “
“ The Court reiterates, however, that the scope of its authority is limited to ensuring compliance with the Convention. (…) (The Court) therefore does not have the authority to ensure compliance with other international treaties or with international obligations deriving from sources other than the Convention.“
In summary, the Court acknowledges that it perpetrates a “legal loophole” for people in distress in the central Mediterranean sea, with Italy, Malta, and the European Union ensuring that the so-called Libyan Coast Guard intercepts people and brings them back to Libya – where they face what may amount to crimes against humanity. The Court issued a reminder that it is limited to the interpretation and application of the European Convention of Human Rights and therefore, suggests that other bodies may be better suited to rule on the matter.
But which ones? The central Mediterranean sea necessitates an overlapping structure with human rights law considerations (European and international conventions and their related interpretations by international courts or UN Committees), international maritime law (UNCLOS, SAR and SOLAS conventions), but simultaneously: that the high seas belong to no-one, belong to all. Only in situations of SAR related activities though, the SAR Convention foresees exemptions. With the creation of SAR zones, states have to engage and coordinate rescue operations. And therefore, must intervene on the high seas.
So, yes, the Court is right, there are necessarily multiple international conventions in question, that may or may not be violated. Nevertheless, by refusing to rule on such matters – and apply a procedural requirement in a strict manner, the Court shies away from its own duties. Should all international courts and UN committees (such as the Human Rights Committee, the Committee against Torture) react in a similar manner, then over 20 deaths may happen and no one would feel responsible.
Such an interpretation of the law and reluctance to rule on a highly politicized topic has to be understood in a wider political context. Like Italian domestic courts, the European Court of Human Rights is highly scrutinized and was recently attacked to by several states under the lead of Italy and Denmark. These parties accused the Court of going “too far” in interpreting the law in relation to migration and “border management”. Therefore, the Court’s decision to apply narrowed conditions of jurisdiction – even disregarding obvious facts – or to remind throughout its ruling that it is bound to the interpretation and application of the Convention only, may not come as a complete surprise.
3. The aftermath for the central Mediterranean sea
In a context with so many pending cases at domestic and international levels related to migration, S.S. and others is surely “one ruling” among others. But it was the proceeding that activists, NGOs and academics working on the central Mediterranean sea context had been waiting for. The Court was called upon to clarify whether European states, supported by the European Union, had finally found a legal loophole, a way to escape any accountability. Still, in a context of increased border externalization and MoUs with Libya, Tunisia and Egypt, despite over 32 000 deaths since 2014, and with questionable arguments, the Court acknowledged that it was the case.
And here we are, the civil fleet, with a ruling confirming what we have always been fearing. However, as disastrous as this decision may be, it has to be put into perspective: the Court could have put an end to the current European border regime. But it would have been temporary only: European Member states, the European Union will always adapt to scandals and rulings to further escape their duties. Furthermore, even if many questions remain open – especially on the impact of this decision on pending or potential future proceedings, all may not be lost. At domestic level for instance, an Italian court held Italy responsible for a pushback and ordered the release of a humanitarian visa. Moreover, Italian civil courts contradicted the Italian authorities in proceedings related to the detention of NGO ships: despite Italy’s attempts to legitimize them, they recalled that the so-called Libyan Coast Guard is not a legitimate rescue actor at sea.
The S.S. and others v Italy ruling will certainly be (mis)used and misquoted. However, it is our duty to underline that, in the end, even if the Court illustrated a legal vacuum for people on the move, it did not clarify whether Italy committed human rights violations or not. And the European Court of Human Rights made it quite clear that it does not want to be the court to rule on this matter in the future.
Bérénice Gaudin, Sea-Watch
Sea Watch website – https://sea-watch.org
