Disneyland Strasbourg: S.S. and Others v Italy

By Thomas Spijkerboer

The Court’s inadmissibility decision of 12 June 2025 in S.S. and other v Italy is the end of a story that began 3.140 days before. 

Early in the morning of 6 November 2017, the Italian Maritime Rescue Coordination Centre (MRCC) in Rome received a distress call from a dingey in international waters, at 33 nautical miles from the Libyan coast. MRCC Rome immediately asked all vessels in the vicinity to intervene. In addition, MRCC Rome asked the Libyan Joint Rescue Coordination Centre (JRCC) in Tripoli to take charge of the coordination of the rescue operation. This resulted in a competition between a Libyan rescue boat (the Ras Jadir) and an NGO rescue boat (the Sea Watch 3), which developed under the watchful presence of a French navy vessel, an Italian marine helicopter, and a EUNAVFOR Med airplane.

The Libyan rescuers acted as was well known they would, as evidenced by numerous human rights publications (for an overview of the situation at the time see for example the master thesis of Maarten Kos): they manoeuvred in such a way that people on the dingey fell overboard; they did not provide the people whose lives had thus been endangered with life vests or similar equipment; they maltreated people who were in the water; those who climbed on board the Ras Jadir were beaten; they tried to prevent people from reaching the Sea Watch 3; some drowned; those who had to remain on the Ras Jadir were brought to Libya, where they were exposed to inhuman treatment in the infamous camps. Those who succeeded in reaching the Sae Watch 3 were brought to Italy. Forensic Architecture has published a detailed report and video about these events. 

Jurisdiction?

All this was known to Italy. Not only can Italy be presumed to have been aware of the overwhelming human rights reports. Italy had also trains, funds and equips the Libyan rescuers, and Italian ‘advisers’ were (and for all I know still are) continually present in JRCC headquarters. The argument that Italy exercised jurisdiction over the situation, and was responsible for the deaths and inhuman treatment, can be made (and was made by the applicants and the interveners) at two levels. At a general level, the argument holds that the Italian funding, training, equipment and technical assistance had the foreseeable and direct consequence that particularly Sub-Saharan nationals would be subjected to a real risk of death and inhuman treatment. It can be argued that there is a foreseeable causal link between these acts of the Italian state and the human rights violations outside Italian territory which, for the purpose of the right to life and the right not to be subjected to inhuman treatment, constitutes jurisdiction. At an individual level, it can be argued that the Italian MRCC, by not limiting itself to ask all vessels in the vicinity to provide assistance, but by also asking the Libyan JRCC to coordinate the rescue operation, could foresee the real risk of death and inhuman treatment which was thereby created. This could have been prevented if Italy had retained control of the rescue operation, which would have allowed MRCC Rome to designate not the Ras Jadir but the Sea Watch 3 to act as the On Scene Commander (OSC). This would foreseeably have saved lives and would have prevented inhuman treatment on the Ras Jadir and in Libya – again this would constitute jurisdiction. Such argumentation has been adopted by the Inter-American Court of Human Rights (Advisory Opinion OC 23/17) and the UN Human Rights Committee (Communication 3042/2017) in order to find jurisdiction in the sense of Article 1 ACHR and Article 1 of the Optional Protocol to the ICCPR. 

It can come as no surprise that the Court does not accept this argumentation in S.S. and others v Italy. After all, during the last decade the Court has made quite an effort to give European states room for manoeuvre in border control, even when this means the Court accepts sub-standard detention conditions (Khlaifia and others v Italy), driving masses of people away from the border (N.D. and N.T. and its follow-up case law), allowing an authoritarian regime to detain people without legal basis (Ilias and Ahmed v Hungary), leaving people who prima facie qualify as refugees little other option than to buy the services of smugglers (M.N. and others v Belgium), and – as in this case – death. In its inadmissibility finding in S.S. and others v Italy, the Court does not need to depart from established case law, as it had to in order to reach these earlier judgments and decisions. Christopher Roberts recently showed that, from the beginning, the European Convention was not imagined as a document for all humanity (p. 28 et seq). The Court underlines this: “the Convention is a constitutional instrument of European public order: it does not govern the actions of States which are not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States” (para. 82). 

The Court sticks to its earlier case law. Italy did not have effective control over the maritime zone where the events took place. It also did not have authority and control over the victims on the scene. This is underlined by the fact that the Ras Jadir ignored requests from the Italian marine helicopter to act more carefully. The situation does not resemble the authority of the Turkish army over Northern Cyprus, the authority of Turkish agents over Abdullah Öçalan during his arrest in Nairobi, or of the Italian navy over Hirsi Jamaa. The Court could have accepted Italian jurisdiction by developing the concept in accordance with the approaches of its Inter-American counterpart or the Human Rights Committee, but that would have required an innovation compared to existing case law. The Court’s more limited notion of jurisdiction leads to a clear conclusion: because Italy did not exercise jurisdiction, the Court is not competent to rule on the substance of the case. 

Disneyland

The Court could have finished its decision with paragraph 108, where it draws its conclusion. Instead, after having reached the conclusion that Italy did not exercise jurisdiction, it adds a final section entitled “Final considerations and general reminders”. Unlike the (predictable) earlier parts of the decision, this section of the decision is rather surprising. The Court tries to respond to the disappointment it expects from the applicants. It is important to keep in mind that the Court has concluded, after 108 densely argued paragraphs, that it is not competent to rule because the state against which the application was made did not exercise jurisdiction in the sense of Article 1 ECHR. One may (or may not) find this ruling problematic. However, for those who have followed the Court’s case law over the past decade this cannot come as a surprise. The few cases where the Court has found a violation (e.g. M.A. and Z.R. v Cyprus and Almukhlas & Al-Maliki C. Grèce) concerned excesses of the kind covered by the perversity test characteristic of British administrative judicial scrutiny. The Court does not actually enforce the human rights of migrants, but rather gives the Convention the function of a hardship clause. The applicability of a hardship clause is by its nature unpredictable and its application never hinders the functioning of policy itself. 

Why would a Court that has issued judgments such as N.D. and N.T. v Spain care to add a section like this? A sociological hypothesis could propose that this section was included to prevent a dissenting opinion of a Strasbourg judge who could be convinced to join the majority by adding this moral disclaimer. While this is certainly possible, I think we have to take the content of this section more seriously than that.  

Jean Baudrillard’s concept of simulacrum (Simulacres et simulation, 1981) holds that a simulacrum is something that seems real but that does not have an original; it offers all the signs of the real but short-circuits all its potential versions. A simulacrum simulates something that is not there, making it impossible to distinguish what is real and what is not. Baudrillard is famous for arguing that the effect of Disneyland (a simulacrum, in his terminology) is to suggest that outside the theme park the adults are in power. Disneyland obscures the fact that all the United States is at least as infantile as Disneyland – an observation that has not become less convincing in the 44 years since it was made. Taking our cue from Baudrillard, we might say that the decision in S.S. and others v Italy has been issued not by an actual Court (which, remember, decided it was not competent to rule on the content of the case), but by the entity that runs a new theme park: Disneyland Strasbourg. Because it appears on the website of the Strasbourg Court and because it is followed by the final decision and the names of the judges, this decision seems real while we have no way of knowing whether it actually is real. In para. 109-113, the Court seems to be saying something, but this only underlines that it is keeping its mouth firmly shut. The Court here produces a simulacrum of a human rights ruling: it offers the signs of human rights but in the same gesture short-circuits the application of the Convention. 

Para. 111 is a stark example of such Disneyfied human rights law. The Court considers that the migration context and the maritime setting cannot justify practices that are incompatible with the Convention and cannot justify an area outside the law. But the Court has done just that by deciding that the deaths and inhuman treatment occurred outside the scope of European human rights law. It holds that Italy cannot be held responsible for the foreseeable consequences of its general policies, and it can also not be held responsible for the concrete application of these policies in this particular case. How can the Court expect the reader to take it seriously when it states that there is no legal vacuum? When we enter Disneyland and see Mickey Mouse waving at us, it is immaterial that we know that there is a human being inside. Mickey Mouse is a cartoon character, and he will not get more real than that – the puppet is all there is, and that there may be a human being inside is besides the point. Apparently, the Court expects us, the public, to believe that we take its claim that violations of the Convention are not to be accepted at face value. We are supposed not to notice that the Court has accepted precisely that by not pronouncing itself. Just as Mickey Mouse is all there is, human rights are all there is in S.S. and others v Italy. Like Mickey Mouse they are hyperreal. If we are to believe the Court (and of course we do, welcome to Disneyland Strasbourg!) the statement that there is no legal vacuum is all there is. The creation of a legal vacuum and its denial can exist together and are equally valid. This hyperreality is supposed to be sufficient for the applicants who lost their children and those who were tortured in Libyan camps. 

For people who care about human rights, this creates a dilemma which Baudrillard has touched upon. Some commentators will conclude that, all in all, the Court took the right decision because finding Italian jurisdiction would be judicial overstretch. It indeed may be that, in giving decisions such as this one, the Court is doing the ungrateful but necessary job of not overstepping the boundaries of the possible. This is a serious position which needs reflection. A Court which antagonises states more than they are willing to accept may end up with empty hands when states withdraw from the Convention. Brexit may have had mainly negative effects for the United Kingdom, but it has strengthened to position of member states vis-à-vis international organisations by showing that, irrational or not, states may withdraw. Others however will conclude that the Court refuses to uphold the European Convention of Human Rights, and is caving in to increasing pressure of increasingly right-wing governments. This is a political and academic debate that cannot be resolved through principles alone, because the principled position may result in the demise of the principle. 

But the Baudrillardian dilemma is elsewhere. Both these positions suggest, they both assume that European states want to be bound by human rights standards, and that the Court is actually willing to hold European states accountable. However, it is less and less obvious that this is what we are seeing. As Jens Theilen has recently shown, the Court is willing to intervene in case of isolated excesses, but at the same time legitimates the foundations of the current border regime. S.S. and others v Italy is a decision where the Court’s standing case law already allows it to give states room for manoeuvre, so no innovation is needed. What might be the case is that the Court is, step by little step, returning to the situation before Abdulaziz, when migration was an area not covered by international law because it was part of the domaine réservée (cf. J.L. Brierly). If we now start debating whether the Court did well in finding no jurisdiction we might be missing the bigger issue. Maybe European states, with support of the Court (and whether that support is wholehearted or not is immaterial), do not want to be bound to human rights norms when it comes to migrants.  

Para. 106 is indicative for this. The Court here uses as an argument against jurisdiction that if the activities of the Italian MRCC (calling on ships in the vicinity to come to assistance; and asking the Libyan JRCC to take responsibility for the rescue operation) were to attract jurisdiction, this “would (…) amount to dissuading States from acting on the basis of their international obligations with regard to the rescue of persons in distress at sea.” However, it is plain for all to see that this is precisely what has already happened. Since the Court in its Hirsi Jamaa (2011) judgment held that Italy exercises jurisdiction if Italian navy vessels intercept people on the high seas, Italy goes to all ends not to intercept or rescue people. The facts of this case, as well as those of Human Rights Committee Communication 3042/2017, make this abundantly clear. Again, the Court sets up a hyperreal argument by juxtaposing a thing and its opposite. The decision it gives here allows and thereby encourages Italy to shape its obligations with regard to maritime search and rescue in such a way that it does not have to rescue people in distress at sea. 

We might therefore conclude that this shows the Court has double standards, and that the Court refuses to uphold human rights standards for migrants which it is willing to uphold for Europeans. Marie-Bénédicte Dembour’s When Humans Become Migrants is the most sustained analysis in that sense. But Baudrillard’s Disneyland concept may require us to think further. It is a cliché, but not for that reason incorrect, to consider migrants as the proverbial canaries in the coalmine – if their rights are denied, no one can be sure of their rights. Recent developments in the case law of the US Supreme Court shows that this is not illusory. Objections against Strasbourg’s migration case law à la Dembour suggest that human rights are more real for Europeans than for migrants. But this cannot be taken for granted. 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? Etcetera? In this decision, the Court creates a legal vacuum and denies that there is a legal vacuum; it encourages Italy not to rescue people and does not want to interpret the Convention such that it would dissuade rescue. In Baudrillard’s analysis, one way in which Disneyland undoes reality is by combining different phenomena. Mickey Mouse, a Western movie, and a roller-coaster are jumbled together and have equal validity. The Court erodes human rights from within by making us believe that denying human rights protection and human rights protection can co-exist and possibly even are the same thing. 

The Court illustrates this in para. 113, where it states that it is only competent to supervise the ECHR. Other instruments may give a more extensive protection than the Convention (in the Court’s limited interpretation, that is), but it is not bound by the interpretation of other organs of provisions similar to Article 1 ECHR. It is obviously correct that the European Court of Human Rights is not bound by interpretations of other institutions. But the suggestion that other parts of international law might fill the gap which the Court has just created is moot. Of course the applicants might try to seek justice in the African human rights system. Apart from other reservations one may have about this, that would mean going after the agent and leaving the principal alone. The applicants cannot hold Italy responsible via the Human Rights Committee because the procedures in Strasbourg and at the HRC exclude each other. What does the Court mean? An inter-state complaint about the application of the SAR Convention or SOLAS? But why would the International Court of Justice not follow the European Court in its wisdom that, if Italy were to be held responsible for the manner in which its MRCC deals with a distress call, this “dissuades” Italy from picking up the phone? What we see here is a styrofoam cartoon character waving at the crowd – and that is all there is. There is surface without any depth. 

What Now?

What do we make from this? Should we give up on Strasbourg? That would be unwise. First, Disneyland is fantastic, when your kids have the right age. A hardship clause does not provide robust human rights protection but it is … well, it is precisely that: a hardship clause, and that means that some hardships (by no means all, as this decision among many others shows) can be addressed. Second, there is the long run; things may change. Strasbourg will not change its case law because of academic criticism. But it may change if the socio-political context changes. The Inter-American Court is relatively forceful in its human rights protection because it began its judicial activities during a period of democratic transitions, when new governments strongly supported an institution that could help prevent the massive human rights violations that the continent was trying to recover from (Roberts, o.c. 128). The European Court may want to give up a bit of its state-friendly interpretation of the Convention once Europeans too have somehow come to realise that human rights violations are actually a bad thing, even when the victims are sub-Saharan Africans. And for that eventuality it will be helpful if there are pieces of legal doctrine that can make human rights protection more robust. Here advocates, civil society and academics have a role to play. 

But in addition to (1) using the hardship clause and (2) settling in for the long run, we may also consider (3) the possibilities that the Court unwittingly calls up in para. 113 seriously. It may be that the patience of non-European jurists with the Disneyfication of international law which this decision exemplifies is running thin. To find out whether that is the case, strategic litigation in fora where non-European jurists have a voice seems indicated. In a case such as that of S.S. and others, I see two options. First, the Human Rights Committee could be approached for a complaint against Italy and Libya. Second, African human rights supervisory bodies could be approached, where the complaint would of course firstly concern Libya. But just like the European Court has no problems in finding a “risk of torture, slavery and discrimination” in Libya (Just like that! No hesitation! What courage! We see Justice Being Done!), it might be that African human rights bodies are more willing to give muscled statements about Italy’s role than the European Court is. If this would lead to standing case law which calls things by their name, the next step might be to pull the International Criminal Court or the International Court of Justice (via an inter-state complaint) into the bath. If they can follow established case law of one regional and one UN body, this might give them the opportunity to protect the right to life and the right not to be