By: Andreina de Leo, Junior Research Associate, PILPG-NL
In May 2018, the Global Legal Action Network (GLAN) and the Italian Association for Juridical Studies on Immigration (ASGI), supported by the non-profit association ARCI and the Allard K. Lowenstein International Human Rights Clinic at Yale Law School, filed an application before the European Court of Human Rights (ECt.HR) concerning the responsibility of the state of Italy for its assistance to the Libyan Coast Guard (LYCG) in intercepting and returning migrants to Libya. This type of conduct is commonly referred to as a “pull-back”, and has resulted in several deaths, as well as in other human rights violations. On November 11, 2019, Amnesty International and Human Rights Watch submitted a joint third-party intervention to the Court. On the same day, the International Commission of Jurists (ICJ), the Advice on Individual Rights in Europe (AIRE) Centre, the European Council on Refugees and exiles (ECRE), and the Dutch Refugee Council (DCR) submitted their third party intervention. This post will analyze the arguments adduced by the interveners with regard to the Italian responsibility for the human rights violations resulting from the LYCG pull-backs, with a particular focus on the question of extraterritorial jurisdiction.
S.S. and Others v. Italy specifically concerned a Search and Rescue (SAR) operation performed on November 6, 2017, by the LYCG’s patrol vessel Ras Jadir and the NGO Sea Watch 3 in response to a distress call diffused by the Italian Maritime Rescue Coordination Centre (MRCC) coming from a sinking migrant dinghy, carrying around 150 passengers. According to the 17 survivors of the incident (who happen to be the applicants), LYCG’s arrival caused a strong water movement which led to the death of at least 20 people who had fallen from the boat. Furthermore, the LYCG obstructed the Sea Watch rescue operations by throwing objects, as well as hitting and threatening the migrants with ropes and weapons, without providing life jackets to those who were in the water. The Sea Watch was eventually able to rescue and bring to safety in Italy 59 passengers. Nonetheless, 47 migrants were ultimately returned to Libya, where several of them faced serious human rights violations, including being detained in inhumane conditions, beaten, and sold to a captor who tortured them.
As far as the role of Italy is concerned, before reaching the scene, the LYCG communicated with the MRCC in Rome, which informed it of the location of the boat in distress. Furthermore, the patrol vessel of the LYCG performing the operation was one of the four patrol boats that had been donated by Italy to the LYCG on May 15, 2017. Finally, an Italian navy helicopter was present during the incident. In this regard, the argument of the applicants, shared by the above-mentioned interveners, is that Italy should be responsible for human rights violations against migrants insofar as it effectively made it possible for the LYCG to conduct interception measures leading to said violations, including Article 3 of the European Convention on Human Rights (ECHR). In the context of this post, the merit of the violations will not be examined (for a description of human rights abuses against migrants in Libya, see the Office of the United Nations High Commissioner for Human Rights report here). On the contrary, the post will focus solely on the exercise of jurisdiction for the purpose of applying the ECHR, in accordance with its Article 1. For a Contracting Party, such as Italy, to be held responsible for a violation of the Convention, it is necessary to prove its jurisdiction over the conduct in question.
Settled case-law of the ECt.HR, and in particular its land-mark ruling Al-Skeini, recognizes that, even though the notion of jurisdiction is essentially territorial, “whenever the State, through its agents, exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section I of the Convention” The Court employed the notion of effective control giving rise to extraterritorial jurisdiction in the context of migrant’s interception on the high seas in Hirsi Jamaa and Others v. Italy. In this case, Italy was condemned for violating the Convention through its policy of returning migrants to Libya. Concerning the exercise of extraterritorial jurisdiction, the Court recalled that “the maritime environment is not an area outside the law and that maritime interdictions may well bring affected persons within the interdicting state’s jurisdiction”. In that case, indeed, migrants were found to be under the effective control of the Italian authorities insofar as they were transferred onto Italian military ships before being eventually handed over to the Libyan authorities. This feature draws an important difference between Hirsi and SS: as a matter of fact, while in the former, the Italian authorities were directly involved in the return of migrants to Libya, in the latter they are merely supporting the Libyan authorities through financial and practical means in conducting themselves the return. Such a difference makes it more difficult from a legal point of view to demonstrate that Italy does exercise effective control and that the ECt.HR consequently has jurisdiction over the operation.
In this regard, however, a particular judgment of the ECt.HR, in which the Court seems to distance itself from the traditional doctrine of effective control, appears to be especially relevant. In Ilascu and Others v. Moldova and Russia, the Court held that, even in the absence of effective control, a Contracting State still retains a positive obligation under Article 1 to take all the measures within its power, in accordance with international law, to secure to the applicants the rights guaranteed by the Convention. Furthermore, when assessing the exercise of extraterritorial jurisdiction by the Russian Federation – because the applicants in the case were arrested by Russian soldiers and consequently handed over into the charge of Transdniestrian Separatist authorities where they were subjected to ill-treatment – the Court found that there was a “continuous and uninterrupted link of responsibility on the part of the Russian Federation for the applicants’ fate since Transdniestria was “under the decisive influence of Russia” and “survived by virtue of the military, economic, financial and political support'' provided by it. In this context, to demonstrate the exercise of jurisdiction, the Court did not seem to attach importance to the fact that the Russian Federation did not directly participate in the events that are the subject of the complaint. On the contrary, it regarded as sufficient that Russia neither acted “to prevent” or “to put an end” to the violations to consider the applicants falling under Article 1 of the Convention. It follows that the duty to take preventive actions in respect of human rights violations originates first and foremost from the influence that a State exercises in a particular situation, which can also be demonstrated by means of financial support. As a consequence, the Court seems to imply that if a State has the power to prevent human rights violations and does not act on it, its conduct could trigger the applicability of Article 1 ECHR, thus engaging its responsibility, even in circumstances in which the violations occurred extraterritoriality and the Contracting State did not exercise effective control.
This conclusion is particularly important for the case under examination. Indeed, as a consequence of the Memorandum of Understanding (MoU) between Italy and Libya signed in 2017, the Italian government committed to providing technical and technologic support to the Libyan institutions in charge of the fight against illegal immigration, represented by the border guard and the coast guard of the Ministry of Defense and by the competent bodies and departments of the Ministry of Home Affairs. Such support consisted of technical and financial aid, as well as in the donation of a number of patrol vessels, including the one which undertook the operation in the examined case. Considering that the LYCG was barely functioning before 2016, it appears that it is only due to Italy’s technical and financial aid that it has attained the operational capability necessary to perform the interceptions leading to the occurrence of gross human rights violations at the expense of the migrants. As a consequence, the interveners argue that Italy should be said to have exercised decisive influence over the operation and that it should be consequently held responsible for the arising human rights violations. It is now left to the Court to bring clarity on whether or not such a cooperation-based policy of migration control complies with the Convention.