S.S. and Others v. Italy: The Danger of All or Nothing Framing

[Izza Drury is a Legal Fellow on the Border Justice Team at the European Center for Constitutional and Human Rights. She holds a JD from Harvard Law School and completed a post-graduate fellowship at the European Court of Human Rights.]

On 1 July 2025 Dr. Marialena Tsirli, Registrar of the European Court of Human Rights, published a keynote speech titled “Developing and Maintaining a Court that Matters.” An interesting title considering the chorus of commentators who were concurrently asserting that the Court could no longer provide meaningful recourse on migration issues.

These commentators, including Moreno-Lax, Mann, Riemer, Harb, and Spijkerboer, were all responding to the long-awaited decision in S.S. and others v. Italy. A case factually about a search and rescue operation that left several dead and others at risk of torture. Legally, the case is about accountability for these violent events, a determination that begins with an inquiry into jurisdiction. 

The applicants fled Libya in a rubber dinghy. Thirty-three nautical miles north of Tripoli the dinghy began to sink, and a distress call was made to the Maritime Rescue Coordination Center (MRCC) in Rome. The MRCC contacted the Libyan authorities who dispatched a vessel, the Ras Jadir, to the scene. Another rescue vessel, the Sea-Watch 3 (SW3), also arrived on the scene.

The subsequent events, which Forensic Architecture has extensively analyzed, led to the deaths of 20 people and the return of 47 individuals to Libya where, as was widely known, they faced torture, abuse, and inhuman treatment. Indeed, even during the so-called rescue efforts the crew of the Ras Jadir beat the individuals who climbed onboard seeking safety and “struck those in the water with ropes” (S.S. para., 11). After seven years of deliberation, the Court found that the standard for extraterritorial jurisdiction was not satisfied and dismissed the case. 

Lead counsel Violeta Moreno-Lax asserts that to reach this decision the Court winnowed down its jurisdictional jurisprudence so much that the decision “dent[ed] legal certainty, [and] the rule of law grounding the Convention regime.” She concluded that the case rendered the “regime devoid of relevance in migrant rights cases.” Itamar Mann, counsel on the case, echoed this point concluding that Court could not be considered “a defender of migrants rights at this time.”  Thomas Spijkerboer contextualized the case against broader rule-of-law concerns querying, “if the Court is sensitive to authoritarian pressure when it comes to migrants, why would it be more courageous when it comes to women’s reproductive rights?” Interestingly, the Court itself even acknowledged that its interpretation of the notion of jurisdiction “may seem unsatisfactory to the applicants” (S.S. para., 109).

A False Dichotomy

How did such an “unsatisfactory” addition to the Court’s case law on extraterritorial jurisdiction come about? 

This decision seems to arise in part due to the Court’s framing of the case, and migration issues more generally, in all or nothing terms. In S.S. and others v. Italy, “all” is conceived of as the non-controversially impossible idea that by picking up the phone in the MRCC in Rome the entirety of the Central Mediterranean and all the individuals who traverse it would instantly fall under Italian jurisdiction. And, notwithstanding the “moral disclaimer” related to the abhorrent treatment facing migrants in Libya that is included in the final paragraphs of the decision, “nothing” is thus the Court’s approach. It dismissed the entire case for lack of jurisdiction. 

I assert that this is a false, and rather dangerous, dichotomy. Five years earlier the UN Human Rights Committee faced a very similar jurisdictional question in A.S. and others v. Italy and engaged in alternative analytical inquiries.

An Analytical Alternative  

In A.S., the complainants were the relatives of asylum seekers who died in a shipwreck in the Mediterranean in the Maltese Search and Rescue (SAR) region (A.S. para., 1.1). The Italian authorities responded to the distress call and sometime later (how long is contested) informed the Maltese Rescue Center of the emergency (A.S. para., 7.7-7.8). The complainants argued that the Italian authorities were exercising de facto control over the Maltese SAR region and that Italy therefore bore responsibility for the failed rescue (A.S. para., 5.1). The Italian State for its part argued that the Committee should find the communication inadmissible for lack of jurisdiction as the events giving rise to the claim occurred outside its territory and SAR region (A.S. para., 4.1).  

Faced with a similar jurisdictional question as the Court in S.S., the Committee in A.S. reached different jurisdictional conclusions, (the complainants were under Italian jurisdiction and that Italy and Malta shared concurrent jurisdiction over the events (A.S. para., 7.8)), and engaged a different analytical approach.

In finding that the standard for extraterritorial jurisdiction had been met, the Committee emphasized a set of factual points including, (i) the Italian Rescue Center had been the sole and initial point of contact for the distressed ship (ii) as such, during the time between the call and the takeover of the rescue operation by the Maltese Authorities, the Italian Authorities held the exclusive knowledge of the developing emergency and thus exclusive ability to respond, (iii) that there were Italian assets in close proximity, and (iv) that the Italian Rescue Center remained involved throughout the rescue (A.S. para., 7.8). The Committee concluded that “the individuals on the vessel in distress were directly affected by the decision taken by the Italian authorities in a manner that was reasonably foreseeable in light of the relevant legal obligations of Italy, and that they were thus subject to the State party’s jurisdiction” (A.S. para., 7.8).  

Could the ECtHR have Engaged this Line of Inquiry? 

As Moreno-Lax observed in her commentary the Court framed its jurisdictional analysis very narrowly. By consequence, fewer facts were legally significant. 

The Court summarized the legal standard for extraterritorial jurisdiction as “whether, at the material time, there was any form of effective control by that State over the area in question and/or whether the authorities of the State in question exercised power or control over the applicants.” (S.S. para., 78). One way this legal standard has been satisfied in the Court’s case law is when a “specific circumstance of a procedural nature” (for example a murder investigation) could “justify the application of the Convention in relation to events which occurred outside the respondent State’s territory” (S.S. para., 78 quoting general principles in M.N. and others v. Belgium para., 107).

In S.S. the jurisdiction ratione personae analysis is framed only in terms of this procedural basis for extraterritorial jurisdiction. Thus, the Court’s factual inquiry is aimed at determining whether the phone call to the Rome MRCC amounted to a procedure that could justify the finding of extraterritorial jurisdiction. The Court unsurprisingly finds that “such a procedure” cannot be compared to “the proceedings” which created a jurisdictional link in other cases (S.S. para., 105).

This framing leaves the Court free to ignore the applicants’ arguments that the MRCC’s actions meant “it had been entirely foreseeable […] that their lives would be placed at risk by the Libyan crew during the rescue manoeuvres and they would be at risk of refoulement to Libya and of inhuman and degrading treatment.” (S.S. para., 60).  To put it another way, prior to the arrival of the Libyan Coast Guard the applicants were entirely dependent upon the Italian authorities, and the Italian authorities held complete control over the applicants owing to their exclusive knowledge of the crisis and their exclusive ability to select what rescue operation would be set in motion. 

The Human Rights Committee in A.S., conversely does consider these more “substantive” aspects of the relationship between the complainants and the Italian authorities. The Committee noted that a “special relationship of dependency” was created between the individuals onboard the vessel and the Italian authorities, such that the decisions made by the Italian authorities would have direct and foreseeable consequences on the individuals onboard (A.S. para., 7.8).  

Let me emphasize that I am not arguing that the Court was under an obligation to consider the HRC’s jurisprudence. Moreover, the Court’s case law of course gives rise to this procedural basis for extraterritorial jurisdiction. However, the Court’s case law also gives rise to, or at the very least does not preclude an inquiry like the HRC’s in A.S. The Court chose not to engage this line of inquiry. 

Consequences of the ECtHR’s Analytical Choice

What does it mean for the right to life and other absolute rights under the European Convention on Human Rights that the Court made this choice? I’ll echo other commentators to state that such a decision cheapens these rights and renders the Court’s alleged protection of migrants’ rights illusory at best, and at worst facilitates state impunity and the erosion of the rule of law. 

The Court’s approach here also leads to illogical and confusing precedents which it will have to grapple with in the future. For example, as Moreno-Lax noted, the Court’s analysis of the legal status of the Search and Rescue (SAR) region in which the events took place is troubling. At the time of the events the only basis to support the position that the events occurred in the Libyan SAR zone was a unilateral declaration made four months prior by Libya that it had established a SAR region (the Court does not specify between the two rival governments vying for power in July 2017 which made the statement, although it could be assumed it was the UN-backed Government of National Accord). The Court itself even stated that it wasn’t until seven months after the events at issue that the International Maritime Organization recorded the Libyan SAR region in its database (S.S. para., 25).  

The Court tries to sweep these facts under the rug by acknowledging that “the information in its possession does not enable it to establish whether Libya’s unilateral declaration with regard to its SAR region had already taken effect,” and concluding that “whether the events in issue took place within Libya’s SAR region is not, in itself, decisive” (S.S. para., 90). What to make of this precedent? Is it really of minimal relevance to an adjudication of extra-territorial jurisdiction what the legal status of the SAR zone is in which the events took place? Would it be more relevant if multiple sources stated that prior to the unilateral declaration search and rescue responsibility for the area in question fell to Italy?

The Court’s approach also raises the broader concern, highlighted by other commentators, that the erosion of migrants’ human rights is a harbinger for the erosion of other rights.  

This concern is currently being tested. In February 2025, the Grand Chamber heard oral argument in three push-backs cases (R.A. and Others v. Poland, H.M.M. and Others v. Latvia, and C.O.C.G. and Others v. Lithuania).  Judge Bårdsen asked for clarification from the parties as to legal reasoning that could resolve the tension between the government’s arguments seeking the application of a margin of appreciation to Article 3, an absolute right. In particular, he asked if the Court could find “any kind of guidance in the distinction between positive and negative obligations, notably whether the obligation to perform a concrete risk assessment … should properly be seen as a positive procedural obligation which would lend itself to a broader assessment as to the possibilities to carry out such assessment and allowing the member states to regulate the modalities of this procedure.” (Webcast of the hearing H.M.M. and Others v. Latvia, Minutes 1:30:30-1:33:10). What would it mean if the negative obligations accompanying the prohibition of torture, widely seen as a jus cogens norm, were to be qualified by a State’s margin of appreciation?

Tsirli’s intervention, “Developing and Maintaining a Court that Matters” focuses on three points, (1) legal soundness, (2) transparency and openness, and (3) the acceptance of decisions. While it is likely that Tsirli’s third point was written with the Member State’s acceptance of judgements in mind (the Court is facing escalating political pressure on issues of migration) I hope that she is equally keeping in mind the need for the decisions to be accepted as legally sound by applicants and practitioners. If not, who is the Court really serving?