Judging a Ghost

For over a decade, European states have externalized migration control to non-European partners such as Libya – often beyond the reach of the European Court of Human Rights (ECtHR). S.S. and Others v. Italy challenged the legality of this practice: survivors of a 2017 shipwreck alleged Italy’s coordination with the Libyan Coast Guard made it complicit in their forced return to Libya. In May 2025, the Court declared the application inadmissible for lack of jurisdiction under Article 1.

However, the Grand Chamber’s inadmissibility decision effectively hinges on Libya’s spectral presence. Rather than condemning Italy for complicity in the joint “pullback” operation, the Court effectively interpreted Libya’s sovereignty as a shield against human rights liability. By framing Libya as an external actor whose conduct it could not adjudicate, the Court invoked the indispensable third-party rule’s prohibitive logic, creating a jurisdictional loophole that delineates the inside from the outside – Europe from non-Europe.

This post argues that S.S. and Others v. Italy is not just another case about the ECHR’s extraterritorial reach. Rather, the proceedings were haunted by a ghost: Libya – factually central, but legally absent as a non-party to the Convention. The Court’s refusal to engage with complicity thus reveals a deeper flaw in the Convention’s architecture, showing why a critique of its politics of jurisdiction is more necessary than ever.

The Complicity Rule and Its Paralysis

The decision has drawn criticisms on different levels: the factual record, the reasoning on extraterritorial state jurisdiction, and – on this blog – the law of the sea. Yet, none addresses the prohibition of aid and assistance, which lies at the decision’s heart.*

Though the Court acknowledged the customary prohibition on complicity captured in Article 16 ARSIWA as part of the relevant legal framework (§30), it then tellingly fell silent. Thus, analyzing the case through this lens proves especially insightful.

Article 16 ARSIWA obligates states not to aid or assist another state in committing an internationally wrongful act. The rule is “Janus-faced”: it functions as a secondary rule allocating responsibility, yet it contains its own primary obligation. Its derivative nature (§7 of the ILC Commentary on Chapter IV) makes it a kind of sui generis “meta-primary rule”.

However, this structure creates a fatal paradox. Adjudicating the prohibition on complicity is often constrained by the indispensable third-party rule (MPIL §§24 ff.), a procedural obstacle first articulated by the International Court of Justice in the Monetary Gold case. It holds that a Court cannot exercise jurisdiction if it requires ruling on the lawfulness of a third state’s conduct without that state’s consent. Because Article 16 ARSIWA is derivative, holding Italy accountable for complicity in Libya’s actions first requires the ECtHR to establish the wrongfulness of Libya’s conduct – which it may be barred from since Libya is not a party to the ECHR. This results in a jurisdictional trap: a rule designed to ensure accountability for complicity can be paralyzed by its own logic (see commentary 11 on Article 16).

The Path Not Taken

In the past, the ECtHR has skilfully navigated around the indispensable third-party rule to handle cases involving cooperation with non-Convention states (MPIL §26). Rather than applying the general complicity framework, the Court typically reframes the legal issue to focus on the primary obligations of the Convention state itself.

Two lines of jurisprudence illustrate this. First, the Soering v. United Kingdom doctrine established that a state violates Article 3 ECHR if it removes an individual to a country where they face a “real risk” of torture or ill-treatment. The violation arises not from the third state’s future act, but in the Convention state’s own sovereign act of removal, effectively functioning as a “preventive complicity rule”. Second, in CIA rendition cases (e.g. El-Masri v. North Macedonia, Al Nashiri v. Poland), the Court held states responsible for “acquiescence and connivance” in torture on their territory, framing this as a breach of their direct duty to prevent such acts. In both instances, the Court assesses the third state’s conduct as a matter of fact while avoiding any formal adjudication of its legality.

The Making of a Ghost

In S.S. and Others v. Italy, however, the Court chose not to follow this path. It acknowledged the “real risk” of abuse in Libya (§109) but “refused, in effect, to connect human rights responsibility with the design of foreseeable harm”.

To justify its departure from the established caselaw, the Court constructed a narrative that minimizes Italy’s role and responsibility. The judgment repeatedly depicts the Libyan Coast Guard as the primary and autonomous actor (§7, §9, §61) stating there was “nothing to suggest that the officers of the Rome MRCC had control over the crew of the Ras Jadir or were in a position to influence their conduct in any way” (§102). By constructing Libya as autonomous actor, the Court forecloses analyzing Italy’s direct responsibility.

The Court’s pivotal argument rests on a false dilemma. In §106, it argues that “the mere fact that the search and rescue procedure was initiated by the Rome MRCC cannot have resulted in bringing the applicants under the jurisdiction of the Italian State […] since States would then be required, on that basis alone, to secure the Convention rights to such persons, even where the latter have no connection to them and are not under their effective ‘control’ […].” The Court thus declined to extend the “real risk” doctrine on the grounds that no normative or factual connection exists absent Libya’s intervention. This reasoning is coherent on its own terms, as the Court’s doctrinal workarounds were designed precisely to ground human rights liability in the sovereignty of the Convention state. However, it reverses the logic of state complicity: here, the third state’s control is not a barrier to the assisting state’s responsibility but its logical precondition. The Court thus weaponizes the very feature that triggers the complicity rule – third-party control – to argue against its application.

Apology over Utopia

The Court’s rationale is anchored in the indispensable third-party rule, as revealed in §82 of the decision. It states that the Convention “does not govern the actions of States which are not Parties to it” – a clear reformulation of the Monetary Gold principle.** By linking this rule to the Convention’s identity as a “constitutional instrument of European public order”, it becomes a fundamental principle.

Behind this procedural framing lies a clash between two philosophies of international law. On the one hand, Article 16 ARSIWA protects “community interests” and thus departs from international law’s traditional bilateralism. On the other, the indispensable third-party rule is a classic Westphalian principle safeguarding state consent and sovereignty.

The Court effectively prioritizes state sovereignty over community interests. In Martti Koskenniemi‘s terms, the “apologetic” rule triumphs over the “utopian” one. This choice amounts to what Marie-Bénédicte Dembour calls a conceptual reversal: rather than human rights limiting state sovereignty, the absent non‑European third state’s sovereignty becomes the default rule limiting the scope of human rights.

[1] The latter part of the quote reads: “nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States” (§82). This can be read as a further rejection of the complicity rule with regard to the opposability element in Article 16 (b) ARSIWA.

The Politics of Jurisdiction

Consequently, the focus must shift to the adjudicative structures guiding the Convention’s politics of jurisdiction. H.L.A. Hart’s systematic perspective on legal orders is helpful here. For Hart, a mature legal system is defined by the union of primary rules of conduct (e.g. the prohibition of complicity) and secondary rules that confer powers to create, change, and adjudicate primary rules (Hart, p. 79ff.). In this framework, the indispensable third-party rule functions as a secondary rule of adjudication, since it concerns a Court’s authority.

Contrary to their name, secondary rules operate at a higher level than primary rules; they are rules about primary rules. The application and review of primary rules presuppose the existence of secondary rules that establish a Court’s jurisdiction (Hart, p. 91; see also the ILC’s Fragmentation Report, cf. §27). The conflict between the prohibition of complicity and the indispensable third-party rule is thus not just about applying two primary norms, but about adjudicative jurisdiction itself – an asymmetrical conflict of norms.

In defining its own limits, the Court draws a jurisdictional line between inside and outside. It creates a jurisdictional firewall when Convention states cooperate with non-Convention states, defining who belongs inside the European legal space and who remains outside. In this sense, S.S. and Others v. Italy is not just a ruling on extraterritorial human rights obligations, but a political act – the bare speaking of the law (juris-dictio) – that defines a legal community.

Conclusion: A Haunted Court

S.S. and Others v. Italy is a moment of institutional self-revelation. It exposes the ECHR as ill-suited to the realities of externalized migration control. The decision is not only based on narrow interpretations of extraterritorial jurisdiction, but above all on structural obstacles inherent in the ECHR’s institutional architecture. The spectral presence of Libya forces a shift from focusing on state jurisdiction towards the Convention’s politics of jurisdiction.

S.S. and Others v. Italy leaves no doubt that a discourse focusing exclusively on refining case law – while leaving the institutional architecture of the ECHR untouched – will not secure the rights of migrants at Europe’s borders. In this regard, the decision is an open warning to international human rights advocates not to descend into “managerialism”: a rather technical discourse on doctrinal loopholes that “solidifies the sense that questions of distribution and preference have already been decided elsewhere, so all that remain are technical questions”.

Given the ECHR’s history and its inherent limitations and biases – enshrined, for example, in Article 56’s colonial clause – the Convention’s structural shortcomings are hardly new. In this respect, it is haunted not only by indispensable third parties, but by those “ghosts of colonialism” that still shape its jurisdiction. Here, legal devices that police the Convention’s outside – the jurisprudence of exception‑making – exclude claimants; there, the indispensable third‑party rule is deployed to ward off human rights obligations.. S.S. and Others v. Italy once again illustrates that, in any case, their place is outside the Convention’s reach, so that European human rights can be established on the inside.

*It is worth noting that fundamental questions regarding the relationship between the general complicity rule and the ECHR remain unresolved. This is a prime example of legal fragmentation in international law: Is Article 16 ARSIWA directly applicable, incorporated through systemic integration, or displaced by the Convention’s own lex specialis rules? Is it even a question on the level of primary rules (substantive obligations) or secondary rules (state responsibility)? This remains unclear. S.S. and Others v. Italy has not changed this.

**The latter part of the quote reads: “nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States” (§82). This can be read as a further rejection of the complicity rule with regard to the opposability element in Article 16 (b) ARSIWA.