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Strategic Litigation against European Migration Control Policies: The Legal Battleground of the Central Mediterranean Migration Route

In: European Journal of Migration and Law
Authors:
Annick Pijnenburg Assistant Professor, International and European Law, Radboud University Nijmegen The Netherlands

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https://orcid.org/0000-0002-0176-3670
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Kris van der Pas PhD candidate, Migration Law, Radboud University Nijmegen The Netherlands

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https://orcid.org/0000-0003-1712-7545
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Abstract

Migration control policies at Europe’s borders that lead to human rights violations are widespread. As a result, NGO s, law clinics and individual lawyers mobilise the law against different actors in an attempt to seek accountability for these violations and end the policies that cause them. Accordingly, the aim of this article is to present an overview of and initial reflection on strategic litigation concerning the Central Mediterranean migration route. The article first depicts European migration control policies in the Central Mediterranean and their human rights consequences. It then provides an overview of recent strategic litigation before various domestic, regional and international forums. Finally, the article discusses the potential of these litigation efforts to overcome the accountability challenges caused by European migration control policies in the Central Mediterranean.

Abstract

Migration control policies at Europe’s borders that lead to human rights violations are widespread. As a result, NGO s, law clinics and individual lawyers mobilise the law against different actors in an attempt to seek accountability for these violations and end the policies that cause them. Accordingly, the aim of this article is to present an overview of and initial reflection on strategic litigation concerning the Central Mediterranean migration route. The article first depicts European migration control policies in the Central Mediterranean and their human rights consequences. It then provides an overview of recent strategic litigation before various domestic, regional and international forums. Finally, the article discusses the potential of these litigation efforts to overcome the accountability challenges caused by European migration control policies in the Central Mediterranean.

1 Introduction

It is estimated that in 2021, 1,838 people drowned in the Mediterranean Sea while trying to reach Europe.1 Indeed, the Central Mediterranean migration route is the most dangerous migration route in the world.2 As a result, NGO s, law clinics and individual lawyers undertake legal action against different actors involved in European migration control policies. An innovative feature of this strategic litigation in the context of the Central Mediterranean is the fact that efforts address multiple forums under various legal regimes. Thus, they have not only addressed domestic courts and (regional and international) human rights bodies, but also other forums, such as the International Criminal Court and the European Court of Auditors. As a recent development, this coexistence of a plethora of legal actions before various forums deserves further scrutiny. Accordingly, this article has two main aims: to map existing litigation strategies regarding the Central Mediterranean migration route and to provide some reflections on their potential to overcome the challenges posed by contemporary European migration control policies, especially as regards accountability for human rights violations. In contrast, existing scholarship that addresses strategic litigation in the context of the Central Mediterranean tends to focus on specific cases, such as SS and others v Italy currently pending before the European Court of Human Rights (ECtHR).3 Yet the plurality of litigation strategies aimed at multiple actors involved in European migration control policies warrants a broader perspective that goes beyond a single case. More generally, literature on strategic litigation in the migration field tends to focus on a specific court or legal system rather than taking a bird’s eye view of multiple cases.4

As noted by Costello and Mann, migration control often entails human rights violations.5 Abundant evidence confirms that this is also the case on the Central Mediterranean migration route.6 Moreover, migration control policies and practices are ‘custom built to evade accountability’.7 In other words, they are characterised by accountability gaps: ‘when it comes to migrants and refugees, legal safeguards for accountability are systemically and globally failing.’8 Following recent literature on this topic,9 we examine legal accountability for human rights violations as a result of European migration control policies. This entails ‘the adjudication of violations by judicial or quasi-judicial bodies accessible to asylum seekers and refugees.’10

A specific issue that requires further research is the extent to which contemporary litigation strategies regarding the Central Mediterranean route have the potential to remedy accountability gaps. While providing a definitive answer to this question goes beyond the scope of this article, we seek to contribute to the discussion by applying a topographical approach to strategic litigation that addresses multiple forums under various legal regimes, as called for by Tan and Gammeltoft-Hansen.11 In their view, a topographical approach to human rights violations is one where ‘the site of a violation is perceived from a bird’s-eye view and accountability pursued through diverse legal regimes and via a broadened geographic lens.’12 It focuses on complex situations that raise difficult issues of responsibility and liability, for instance because of cooperation between states and other actors and questions of extraterritoriality.13 Reflecting the thin line that often separates scholarship from practice in refugee law,14 the topographical approach applies both to scholarship and to practice. Indeed, by addressing multiple forums under various legal regimes, contemporary litigation strategies regarding the Central Mediterranean can be seen to apply a topographical approach. We seek to complement these empirical developments by mapping these practices and discussing them from an academic perspective. We thereby contribute to the emerging literature in this field.15

One of the key aims of this article is to map existing strategic litigation regarding the Central Mediterranean migration route. More specifically, we offer a non-exhaustive overview, with the following caveats. First, our overview covers the period from the ‘refugee crisis’ of 2015–2016 until 1 January 2022, as it entails key developments in terms of policy as well as strategic litigation. Second, given the lack of a central database or similar resource, we include all the legal actions that have come to our attention in various ways, notably through media reports.16 As a result, it is possible that less mediatised cases are not included in the overview. Nevertheless, given the salience of migration on the political agenda, it is likely that some correlation exists between visibility and importance. This is arguably reflected in the number of third-party interventions in several high-profile migration cases.17 Given the exploratory nature of our discussion, we deem these methodological limitations to be acceptable. Furthermore, when reflecting on their potential to overcome the accountability challenges posed by migration control, we focus on the aggregate of legal actions using a variety of legal mechanisms rather than on an individual initiative. For the same reason, our overview covers legal actions that are still pending as well as those whose outcome is known. It thus includes ‘failed’ efforts that did not lead to the outcome desired by the actors (or ‘players’) who initiated them. Indeed, placing these actions within the context of broader litigation strategies can yield new insights.18

In terms of terminology, as those affected by European migration control policies in the Central Mediterranean include not only refugees but also (other) migrants, we refer to them as ‘people on the move’.19 Furthermore, we use the term ‘strategic litigation’, which is ‘(the intention of) legal action through a judicial mechanism in order to secure an outcome, either by an affected party or on behalf of an affected party […] used as a means to reach objectives which consist of creating change (e.g. legal, political, social) beyond the individual case or individual interest.’20 Strategic litigation can be seen as a sub-category of legal mobilisation, which refers more broadly to ‘any type of process by which individual or collective actors invoke legal norms, discourse, or symbols to influence policy or behavior.’21 The two concepts are closely related and overlap to some extent, since they both use legal means to achieve similar goals: influence policy or behaviour beyond the individual case. These goals can be subsumed under the broad concept of policy change, which encompasses accountability. Indeed, holding actors accountable can incite policy change, as actors change their policies to avoid being held accountable in the future.22

In terms of scope, our analysis focuses on the Central Mediterranean migration route, especially on migration from Libya to Italy. More specifically, we discuss European migration control policies, which we understand as arrangements and practices initiated by the European Union and individual Member States to stem irregular migration flows across the Central Mediterranean and prevent people on the move from reaching European territory. The Central Mediterranean, notably the migration route from Libya to Italy, offers an interesting context to explore for various reasons. First, as Section 2 will show, Italy and the EU have undertaken many efforts to prevent people on the move from crossing the Mediterranean from Libya. These efforts involve numerous actors, including EU institutions and agencies, governments of EU Member States, Libya, commercial and humanitarian private actors, state and EU officials, and armed groups. Second, people on the move suffer serious human rights violations on this migration route, both in terms of numbers and gravity.23 Third, and crucially, many litigation efforts in recent years seek to address these violations. They complement similar strategies regarding other aspects of European migration control policies.24

The article is structured as follows. Section 2 provides a factual overview of contemporary European migration control policies in the Central Mediterranean and their consequences in terms of human rights violations. Section 3 then maps litigation strategies to challenge these policies. Section 4, in turn, offers some reflections on the potential of strategic litigation to address accountability challenges raised by European migration control policies in the Central Mediterranean. Finally, Section 5 offers some concluding thoughts.

2 European Migration Control Policies in the Central Mediterranean and Their Human Rights Consequences: A Factual Overview

Contemporary European migration control policies in the Central Mediterranean are partly shaped by earlier policies and litigation strategies. More specifically, since the turn of the century Italy and Libya have concluded various agreements to fight irregular migration, including the 2008 Treaty on Friendship, Partnership, and Cooperation. The latter was suspended in 2011 due to the civil unrest in Libya.25 Moreover, in 2012, the ECtHR condemned Italy for intercepting migrant vessels on the high seas and returning their passengers to Libya in the case of Hirsi Jamaa and Others v Italy.26 However, this has not put an end to European efforts to stop migration along the Central Mediterranean route. Indeed, since the ‘refugee crisis’ of 2015–2016, the EU and its Member States have increased their efforts to control migration at the EU’s external borders.27 The following offers a chronological overview of European migration control policies in the Central Mediterranean and their human rights consequences, focusing specifically on search and rescue (SAR) at sea and cooperation with Libya.

2.1 Diminishing European Search and Rescue Capacity

In 2013, following a fatal shipwreck near Lampedusa, Italy launched Mare Nostrum, a large humanitarian and security operation in the Mediterranean which deployed unprecedented means to rescue people on the move in distress close to Libya. However, it cost €9 million per month and became increasingly contested for allegedly constituting a “pull factor” for migrants and hence causing more deaths at sea.28 Italy therefore ended this operation a year later. It was replaced by the EU’s operation Triton, which had a narrower mandate, focusing on border control rather than SAR, and a smaller budget (€2.9 million per month).29 It is estimated that the shift from Mare Nostrum to Triton doubled the mortality rate of those attempting to cross from Libya to Italy from 1 in 50 to 1 in 23.30

As a result, in 2015 and 2016 NGO ships increasingly started to carry out SAR operations in the Central Mediterranean.31 This increased activity was in turn followed by a crackdown on NGO SAR activities by EU Member States. In July 2017 Italy imposed a code of conduct on NGO s carrying out SAR operations in the Central Mediterranean, which has been criticised for violating humanitarian principles.32 It preceded the criminalisation of rescue at sea along the Central Mediterranean route, as national authorities initiated administrative and criminal proceedings against crew members or vessels.33 This reduced the intervention capacity of NGO vessels which, in turn, risked increasing the numbers of deaths at sea.34 After 2017, EU Member States continued to further withdraw naval assets from the Central Mediterranean to avoid participating in SAR operations involving people on the move.35 EU Member States like Italy also resorted to private vessels, for instance to carry out rescues at sea and return people on the move to Libya or to detain them at sea instead of allowing them to disembark.36

From June 2018 Italy repeatedly refused to allow people on the move rescued at sea to disembark in Italian ports.37 This closed-ports policy led to the deprivation of liberty of people on the move on overcrowded ships that were not suited to host people in severe psychological and physical conditions, putting their safety and physical integrity at risk.38 In 2018 the EU Fundamental Rights Agency recorded 16 instances where vessels that had rescued people on the move waited at sea to be assigned a safe port for more than 24 hours, which increased to 28 in 2021.39 Moreover, during the covid-19 pandemic, Italy, Malta, and Cyprus closed their ports for most boats on public health grounds, thereby hampering the disembarkation of rescued people on the move.40 In sum, crossing the Central Mediterranean route has become increasingly dangerous and difficult for people on the move.

2.2 Increasing Cooperation with Libya

A parallel development concerns the shifting of SAR responsibilities to Libya. The 2008 Italy-Libya Friendship Treaty was revived in 2017 when Italy and Libya signed a Memorandum of Understanding on Cooperation on Development, Combatting Illegal Immigration, Human Trafficking and Smuggling, and on Strengthening Border Security (MOU).41 The 2017 Malta Declaration by EU Member States endorsed this memorandum and announced new cooperation measures with Libya.42 The MOU was renewed in 2020.43 It inter alia requires Italy to support the Libyan institutions in charge of the fight against illegal immigration.44 Italy finances the initiatives envisaged in the MOU from its own budget as well as from available EU funds.45 The EU has mobilised €455 million for migration-related projects in Libya through its Emergency Trust Fund for Africa.46 The EU and its Member States have thus provided the Libyan coast guard (LCG) and the General Administration for Coastal Security with at least 16 speedboats, have trained almost 500 personnel, and have helped Libya declare its SAR area.47

Italy and the EU also support the LCG through their operational involvement. Italy launched operation Nauras in August 2017, which was deployed in Libyan waters and the Tripoli harbour, enabling the LCG to receive distress calls and liaise with the relevant actors.48 Thus, Italy, through its Maritime Rescue Coordination Centre and its military presence in Libya, has assumed the overall coordination of the LCG’s operational response.49 Recent investigations revealed that when European actors, including Frontex, spot boats in distress in the Central Mediterranean, they communicate with the LCG rather than with nearby commercial or NGO vessels.50 Yet the LCG is often unresponsive, suggesting they are either unwilling or unable to rescue people on the move in distress at sea.51 Moreover, the LCG’s behaviour during interceptions includes threats, dangerous manoeuvres, aggression and stealing.52

The outsourcing of SAR activities to the LCG results not only in delayed and dangerous rescue operations, but also in increasing numbers of people on the move returned to Libya – reaching almost 12,000 in 2020.53 In 2021, this number increased to nearly 32,500.54 Under the MOU, Italy also provides financial assistance to people on the move detained in Libyan detention centres.55 European funding, allocated to address the conditions in which returnees are detained, contributes to improving detention conditions but also helps sustain an abusive system.56

As a result, those returned to Libya risk suffering severe human rights violations, including arbitrary and indefinite detention and enforced disappearances.57 People on the move often refer to Libya as ‘hell on earth’.58 Human rights abuses in detention include: inhuman detention conditions; inadequate food; torture and ill-treatment, including sexual violence; forced labour; and deaths in custody.59 People on the move who are not detained risk suffering economic hardship; exploitation and robbery; forced labour; limited access to health care; and sexual violence.60 The Office of the Prosecutor of the International Criminal Court (ICC) continues to investigate serious crimes against migrants in Libya, including their ongoing abuse, trafficking and exploitation.61 Moreover, the covid-19 outbreak has further worsened the plight of people on the move in Libya.62

3 Strategic Litigation regarding the Central Mediterranean: A Legal Overview

This section maps past and ongoing litigation strategies related to the Central Mediterranean migration route, focusing on the following aspects: the forum addressed, the actor(s) against whom the action is brought, the ‘players’ (actors) who initiated the legal action, the policy challenged, and the (legal) outcome of the action. It discusses strategic litigation at the domestic and regional/international level in turn. It concludes with a table that presents an overview of the strategies discussed and some thoughts on the overall picture of strategic litigation related to the Central Mediterranean migration route.

3.1 Domestic Strategic Litigation

In Libya, four civil servants and two lawyers challenged the Italy-Libya MOU.63 In March 2017 they asked the Tripoli Court of Appeal to suspend its implementation, alleging that, amongst others, the head of the Libyan government was not competent to sign the MOU and that it led to violations of human rights norms. The case was brought against several persons with key positions in the Libyan government. Although the Court of Appeal temporarily suspended the working of the MOU, the Supreme Court of Libya eventually declared the case inadmissible due to a lack of functional jurisdiction.64

In Italy, NGO s and individuals pursue various litigation strategies. The most active actor in this regard is the Association for Legal Studies on Migration (ASGI). In 2016 Amnesty International Italy and ASGI brought a case against the Italian government on behalf of five applicants.65 In November 2019, the Civil Court in Rome declared that pushbacks by the Italian authorities were in violation of the Italian Constitution and ordered visas for the Eritrean citizens who had been pushed back.66

In October 2017 ASGI also started proceedings before the Regional Administrative Court in Rome against the Italian government related to funds sent to the Libyan authorities.67 This money is part of the Italian ‘Africa Fund’, a sum of €200 million of which €2.5 million was sent to Libya in 2016.68 ASGI contested the allocation of this money to the Libyan interior ministry.69 Amnesty International, the European Council on Refugees and Exiles (ECRE), Differenza Donna and the International Commission of Jurists (ICJ) submitted third-party interventions in the case.70 The Administrative Court rejected ASGI’s claims, after which ASGI appealed to the Italian Council of State, which dismissed the appeal.71

Furthermore, in February 2018 four ASGI lawyers filed an appeal related to the Italy-Libya MOU to the Italian Constitutional Court on behalf of four Italian parliamentarians.72 They claimed that the Italian government had not asked the parliament to ratify the agreement, which it should have done pursuant to Article 80 of the Italian Constitution.73 The Italian Constitutional Court declared this appeal inadmissible.74

In January 2021, ASGI submitted a complaint to the Public Prosecutor’s Office at the Court of Auditors in Rome.75 It concerns public funds being used through Italian NGO s in detention centres in Libya where serious human rights violations occur. According to ASGI, Italian funding is not used to the benefit of individuals staying in the detention centres.76

Finally, in July 2021 ASGI and a number of other organisations and individuals submitted a complaint to the Prosecutor’s Office in Rome concerning an April 2021 shipwreck in which 130 people on the move lost their lives off the coast of Libya.77 A number of actors, such as the Italian and Maltese authorities, the Libyan Coast Guard and a private vessel, were called upon to help the dinghy in distress, but no one came to the rescue.78 The complaint asks the Prosecutor’s Office to investigate the criminal conduct of both private and public, national and European actors.79

3.2 Regional and International Strategic Litigation

Beyond the domestic level, a range of players have turned to multiple forums. The following discusses the regional and international fora in turn. As regards the African human rights system, in July 2019, the Cairo Institute for Human Rights Studies (CIHRS), ASGI and the Associazione Ricreativa Culturale Italiana (ARCI) requested the African Commission on Human and People’s Rights (AComHPR) to investigate human rights violations against people on the move in Libyan detention centres.80 They requested provisional measures ordering the Libyan Government of National Accord to put an immediate stop to these abuses.81

In Europe, the high-profile case of SS and Others v. Italy was started before the ECtHR in May 2018 and communicated to the Italian government in June 2019.82 The Global Legal Action Network (GLAN) and ASGI filed the complaint on behalf of 17 applicants, with the support of ARCI and a law clinic.83 They claim that Italy violated the European Convention on Human Rights (ECHR) by providing a boat to the LCG, which was subsequently used to interfere with an NGO vessel rescuing people on the move at sea. Several people died as a result and others were returned to Libya, where they were detained in inhumane conditions.84 Various NGO s and other players submitted third-party interventions.85 Furthermore, in April 2020, together with ASGI and ARCI, GLAN submitted a complaint to the European Court of Auditors (ECA) about the mismanagement of EU funds through the ‘Support to Integrated Border and Migration Management in Libya’ (IBM) Programme.86 The NGO s asked the ECA to scrutinise this allocation of EU budget. The ECA responded in May 2020 that it would not conduct a further inquiry, partly due to its limited resources.87

The first international effort concerns a case filed with the UN Human Rights Committee (HRC) in May 2017 and decided in November 2020.88 It concerns Malta’s and Italy’s alleged failure to help a migrant vessel in distress, causing the estimated death of more than 200 people. The case was started by four individuals with the help of the lawyer Andrea Saccucci, who had also been involved in the Hirsi case.89 The HRC found that Italy had violated Articles 6 and 2(3) of the International Covenant on Civil and Political Rights (ICCPR),90 and ordered it to conduct an investigation and take steps to prevent similar violations.91 It declared the case against Malta inadmissible for failure to exhaust domestic remedies.92

In addition, various legal actions were started in 2019. Thus, in June 2019 two individual lawyers and several students of the Paris Institute of Political Studies (Sciences Po) submitted a communication to the ICC.93 It presents evidence to the Office of the Prosecutor about the involvement of several individuals working for the EU and its Member States and Libyan agents in criminal conduct in light of migration policies. The ICC has conducted no official investigation into this specific matter so far. In December 2019, GLAN filed a complaint with the HRC on behalf of a South Sudanese person on the move, also referred to as the Nivin case.94 It focuses on the responsibility of the Italian government in relation to pushbacks by private bodies.95 The case is currently pending before the HRC.

In June 2020, a different player, the Centre Suisse pour la Défense des Droits des Migrants (CSDM), requested the UN Committee Against Torture (CAT) to conduct an inquiry into Italy’s responsibility for the pullbacks and subsequent torturing of migrants by Libya.96 In addition, in the same month, a long list of individuals and organisations requested the International Maritime Organization (IMO) in an open letter to deregister the Libyan SAR zone.97 They claim that keeping it intact leads to violations of the law of the sea.98 So far the IMO has not acted upon this request. Moreover, in July 2020, ASGI and CIHRS submitted a complaint on behalf of two individuals to the HRC concerning the responsibility of Italy, Malta and Libya for a pullback operation by the LCG.99

More recently, in November 2021, the European Center for Constitutional and Human Rights (ECCHR), the International Federation for Human Rights (FIDH) and Lawyers for Justice in Libya (LFJL) submitted another communication to the ICC which focuses on Libyan actors.100 The NGO s argue that both Libyan and European actors are involved in crimes against humanity in Libya.101 Finally, in December 2021, ASGI and the Network of University Legal Aid Institutions (NULAI) filed a complaint against Italy and Libya to the UN Committee on the Elimination of Discrimination against Women (CEDAW), alleging that both states violated the Convention on the Elimination of Discrimination against Women.102 They did so on behalf of two Nigerian women who were exploited in Libya and failed to reach Italy, after which they were repatriated to Nigeria.103

3.3 Strategic Litigation Efforts as Integrated Legal Strategies

The foregoing provided an overview of the strategic litigation related to the Central Mediterranean migration route, which the table below summarises. It shows that different players have addressed a variety of national, regional and international legal forums.

Table 1
Table 1
Table 1
Table 1

Overview of strategic litigation efforts

Citation: European Journal of Migration and Law 24, 3 (2022) ; 10.1163/15718166-12340135

This table shows that multiple NGO s often bring claims together, which suggests that strategic litigation is a collaborative effort. The arguments brought forward also reflect this: litigation strategies refer to cases before other (inter)national bodies.104 Furthermore, players who start legal action also make third-party interventions in one another’s cases.105 In addition, the use of many judicial mechanisms by a range of players reveals a mosaic of litigation strategies, which can be described as ‘integrated legal strategies’.106 This term refers to the way in which the players involved in litigation often purposefully coordinate and cooperate their legal strategies. It can be seen as an answer to the EU’s ‘integrated border management’, which entails the coordination and cooperation of (inter)national authorities on the EU’s external borders.107

4 The Potential of Integrated Legal Strategies to Overcome the Challenges of European Migration Control Policies in the Central Mediterranean

This section seeks to initiate a discussion regarding the potential of integrated legal strategies to overcome the challenges of European migration control policies in the Central Mediterranean. It contains some reflections regarding accountability challenges which warrant further exploration as strategic litigation and its scholarly study move forward. Indeed, any discussion of the potential for integrated legal strategies to overcome these challenges is necessarily tentative and exploratory, since the outcome of most litigation is not yet known and actions are still being initiated. We focus on the following challenges, which we discuss in turn: access to accountability mechanisms; the limitations of single actions before specific forums; and the political context.

4.1 Access to Accountability Mechanisms

Access to accountability mechanisms is a challenge that exists at multiple levels and entails two aspects, which we address in turn: a structural lack of accountability mechanisms; and practical obstacles that hinder access to existing accountability mechanisms. The structural lack of accountability mechanisms is related to the non-recognition of the jurisdiction of a certain mechanism and issues of legal standing. For instance, Libya does not accept the competence of the African Court on Human and Peoples’ Rights (ACtHPR) to receive cases from NGO s or individuals.108 It is therefore impossible for a person on the move to bring a complaint against Libya directly to the ACtHPR.

However, the integrated legal strategies mapped in Section 3 could have the potential to at least partly close such accountability gaps. The coexistence of multiple (regional and international) human rights treaties can increase the likelihood that some mechanism is accessible. Individual complaints have thus been brought to various treaty monitoring bodies, including the ECtHR, HRC, and CEDAW. Moreover, individual complaints are not the only way for players to engage with human rights bodies. The action before the CAT concerns a request to conduct an inquiry. Likewise, under the African human rights system, the AComHPR can bring a case against Libya to the ACtHPR.109 It therefore remains possible for NGO s to engage with this mechanism. More generally, integrated legal strategies could also include the submission to treaty monitoring bodies of shadow reports that focus on migration. This may in turn lead to pronouncements in Concluding Observations to which (the same or other) human rights bodies can refer when adjudicating cases.110

The structural lack of mechanisms also plays out in the fact that it remains problematic to hold the EU and its agencies, notably Frontex, to account. Indeed, notwithstanding the important role of the EU and its agencies in controlling migration in the Central Mediterranean, the only legal action that targets the EU itself is the request to the ECA. This is likely due to systemic features, including the immunity of international organisations before domestic courts,111 and the notoriously difficult access to the Court of Justice of the European Union (CJEU) for individuals and civil society organisations.112 As regards Frontex specifically, there is ‘a striking lack of mechanisms for individuals affected by Frontex’s activities to hold the agency to account.’113 As a result, achieving legal accountability is difficult, albeit not impossible.114 Two lawsuits which have recently been filed against Frontex before the CJEU concerning its operations in Greece may further clarify the potential for strategic litigation in this regard.115

Furthermore, the combination of multiple legal regimes could have the potential to narrow accountability gaps that can arise under human rights and EU law. For instance, if these legal regimes ultimately fail to hold EU Member States and private actors accountable, international criminal law could hold European officials and Libyan militia chiefs to account. The two communications to the ICC can thus be seen to complement strategic litigation before human rights bodies. Likewise, engaging with domestic law in various countries as well as international law may complement strategic litigation at the international level, as shown by litigation efforts against Australia’s migration control policies.116

As noted above, the structural difficulties to access accountability mechanisms are often compounded by practical obstacles, especially in the context of migration control. Even where legal avenues exist in theory, people on the move often face the reality of not being able to access justice in practice, reflecting a gap between ‘rights in principle’ and ‘rights in practice’.117 This raises several practical obstacles for the players involved in strategic litigation. It can be difficult, if not impossible, for people on the move detained in Libya or for the family members of those who drowned at sea to bring a case, as they are not in a position to get in touch with a lawyer or file a case themselves. Lack of evidence also plays an important role, as secrecy often surrounds migration control and it can be difficult to gather information about what happens in practice.118

While it remains difficult to overcome such practical obstacles, integrated legal strategies arguably have more potential to do so than isolated efforts. Indeed, an important aspect of the abovementioned obstacles concerns resources, both in terms of financial means and more broadly, such as knowledge. Various NGO s, such as ASGI, GLAN and ARCI, are involved in multiple cases and can be characterised as ‘repeat players’.119 Other players in the Central Mediterranean, on the other hand, seem to act as ‘one-shotters’,120 bringing one isolated case to a specific forum, such as the CSDM to the CAT. Repeat players have an increased chance of legal success as they have developed expertise, have resources, and can adapt their strategy for the long run.121 Thus, repeat players’ involvement in multiple cases could partially overcome the abovementioned practical obstacles.

4.2 The Limitations of a Single Action before a Specific Forum

The coexistence of multiple litigation strategies across legal regimes is particularly interesting as regards the potential to overcome the limitations of bringing a single claim to a specific forum. As Section 3 shows, various legal actions have proved unsuccessful in terms of ‘winning’ the case in question. Examples of such failed legal actions include the litigation in Libya and Italy against the MOU, which were declared inadmissible, and the ECA’s decision not to initiate a review. However, adopting a topographical approach enables us to place these setbacks within a broader context, and their interaction with other legal actions can shine a new light on their relevance.

The coexistence of multiple legal actions could help overcome the limitations inherent to a particular mechanism that can lead to the dismissal of a case. For instance, under human rights law, it is commonly accepted that a state only has obligations towards individuals within its territory or under its jurisdiction.122 Yet, since European migration control policies in the Central Mediterranean often prevent people on the move from reaching the territory of EU Member States, establishing that the latter exercise jurisdiction over people on the move on the high seas or in Libya represents an obstacle to holding European actors accountable. Notably, the ECtHR tends to favour an approach to extraterritorial jurisdiction that focuses on effective (physical) control over a person or territory.123 As a result, establishing that in the case of SS and Others Italy exercises jurisdiction – and hence may have breached its obligations under the ECHR – represents a challenge.124

Addressing multiple accountability mechanisms has the potential to overcome this obstacle in three ways. The first consists in addressing mechanisms which do not face the challenge of extraterritoriality, such as the African human rights system, as illustrated by the request to the AComHPR.125 The second strategy entails addressing human rights bodies that adopt a more expansive understanding of jurisdiction. Notably, recent pronouncements of the HRC suggest that it is more likely to find that a State exercises extraterritorial jurisdiction than the ECtHR.126 In addition, UN treaty bodies that have not (yet) been addressed could likewise help overcome the limitations of a single action before a specific forum. For instance, the Committee on the Rights of the Child could be called upon to adjudicate in a case against Italy.127 Recent decisions from this Committee concerning extraterritorial jurisdiction suggest that it may adopt an approach to jurisdiction that would be favourable to the complainants in the context of the Central Mediterranean migration route.128 A third option to overcome the jurisdiction hurdle concerns EU law: unlike the ECHR, the Charter of Fundamental Rights of the European Union does not contain a jurisdiction clause. Rather, it applies when EU law applies.129 Thus, integrated legal strategies that cover EU law as well as human rights law could have the potential to close accountability gaps that arise because of the jurisdiction requirement in human rights treaties.

Moreover, the interaction between multiple cases could reduce the risk of negative outcomes in specific cases. The December 2020 decision of the HRC, in which it found that Italy exercised jurisdiction and breached its obligations under the ICCPR for failing to help a migrant vessel in distress, is particularly relevant in this regard. It could set a precedent for similar cases that are currently pending before the HRC and ECtHR. Thus, a positive outcome in one case could have a ‘domino effect’ on other, similar cases, before the same or other bodies. However, a restrictive interpretation of jurisdiction by the ECtHR in SS v Italy could also reduce the chances of success for similar cases.130

Likewise, each national and international avenue comes with different roles for the player bringing a case. For instance, in domestic proceedings in civil and administrative law, claimants can directly participate in a legal action (either as an actor in the legal proceedings or via an individual client), while in criminal and financial law, a mere request to start investigations can be made, which does not necessarily trigger a case. The former type of action allows the players to directly influence the case, while with the latter they are left to the ‘whims’ of the competent bodies after the request is made. A legal victory can, in that sense, be more difficult to secure. Integrated legal strategies could therefore help overcome limitations inherent to a specific mechanism by combining avenues in which the players exercise a bigger or smaller degree of control over the proceedings.

Finally, while players who are one-shotters do not benefit from the same advantages as repeat players in terms of expertise, resources and strategy, at a more general level the involvement of both repeat players and one-shotters can be beneficial for integrated legal strategies. Indeed, one-shotters may bring different legal arguments, adopt innovative strategies that complement the efforts of repeat players, and be perceived as being more impartial. However, these players could also create negative precedents due to their lack of resources, jeopardising similar efforts by repeat players. Thus, in this regard also integrated legal strategies could have the potential to overcome the limitation of single actions, although they are not without risk.

4.3 The Political Context

The final challenge concerns the current political context in which strategic litigation takes place. Indeed, while migration control policies are subject to legal rules, they are not made by courts and holding actors accountable does not necessarily lead to the desired policy changes. Especially when it comes to migration from the Global South to the Global North, the political context in Europe is arguably quite negative. Domestic and international courts have to navigate this climate and deal with the potential backlash of governments when it comes to issues related to migration.131 The fact that EU Member States are very active in migration cases before the CJEU shows the salience of migration as a policy.132 Both the ECtHR and the CJEU have been criticised for their ‘politicised’ judgments on issues of migration.133 Integrated legal strategies could address this challenge if they succeed in bringing about a positive domino effect. It is thus conceivable that a positive outcome in one case could make it easier for other courts to follow a similar approach. Moreover, since European migration control policies aim to stem migration flows from the Global South to the Global North, addressing legal forums in the Global South could prove more successful than in the Global North. Although the Libyan litigation surrounding the MOU ultimately failed, one can conjecture that some courts in the Global South could be more willing to condemn human rights violations suffered by people on the move than those in the Global North.134

A further challenge related to the political context concerns the issue that policy makers can try to circumvent legal constraints and that successful legal actions can lead to unwanted policy developments. Notably, while the Hirsi case was heralded as a victory for the human rights of migrants and the responsibility of states on the high seas,135 it arguably also ‘contributed to understandings of how to evade judicial review in future cases’.136 By holding that Italy violated its obligations by intercepting people on the move on the high seas and returning them to Libya, Hirsi contributed to the policy shift from pushbacks to pullbacks by the LCG. By addressing multiple forums in parallel, integrated legal strategies could avoid such negative consequences, as they could reduce the number of alternative policy options.137 On the other hand, this also increases the chances of political backlash to court judgments and attempts to legalise practices that are considered illegal by courts.138 A careful selection of legal forums and possible cases based on the political constellation could have the potential to overcome such issues.139 In the context of the Central Mediterranean, if Libya were to be held accountable for pullbacks, it could become more difficult for Italy and the EU to convince Northern African states to cooperate on migration control, as the latter may be reluctant to risk condemnation.

The coexistence of multiple litigation strategies could also have an aggregate effect: while a single case may not suffice to achieve accountability, pursuing multiple legal avenues under various legal regimes may have an impact on policy makers. Complaints to the ICC can increase pressure on participating governments, while the UN treaty bodies and special rapporteurs can raise awareness, scrutinise and demand responses.140 The use of international criminal law can also have a strong labelling power, especially the labelling of human rights violations suffered by people on the move as crimes against humanity.141 In the context of the Central Mediterranean, even if the complaints to the ICC ultimately do not lead to the condemnation of specific individuals, they could have a deterrent effect on policy makers, who may become more cautious when designing and implementing European migration control policies.

Finally, in discussing the limits of legal victories and the importance of the political context, FitzGerald emphasises the importance of integrated advocacy, which combines legal action with civil society efforts, such as researchers making government officials aware of possible human rights violations and NGOs publicising what is happening ‘on the ground’ to overcome the challenge of changing policies.142 The fact that scholars such as Mann and Moreno-Lax are involved in NGO s like GLAN while at the same time engaging with the issue as academics seems to put ‘integrated advocacy’ in practice.143 In addition, strategic litigation is often accompanied by media campaigns, resulting in coverage by worldwide news outlets.144 Thus, broadening integrated legal strategies to include integrated advocacy could increase their potential to overcome accountability challenges.

5 Conclusion

This article examined integrated legal strategies against European migration control policies in the context of the Central Mediterranean migration route. More specifically, it mapped strategic litigation addressing multiple forums under various legal regimes to seek accountability for human rights violations that arise in that context. It also offered some reflections about its potential to overcome the accountability challenges posed by contemporary European migration control policies. The above discussion suggests that integrated legal strategies by various players addressing multiple forums at the domestic and international levels could have the potential to close some of the accountability gaps identified. It thereby provides a stepping stone for future research to examine to what extent they have succeeded in doing so in practice. Crucially, this article shows the advantages of applying a topographical approach, both in terms of legal practice and scholarship. Adopting a bird’s-eye view enables us to provide a more complete overview and analysis of the potential and risks of multiple parallel strategic litigation efforts related to a specific context. It is likely that NGO s and individuals will continue to explore new avenues to achieve accountability, which in turn requires scholars to continue engaging with these developments by applying a topographical approach rather than focusing on individual cases. We therefore call on scholars to explore these issues further, as more research is needed to propel discussions on accountability forward, both in the context of European migration control and beyond.

Acknowledgements

The authors would like to thank the anonymous reviewer, Sarah Scott Ford, Mariana Gkliati, Lize Glas, Jasper Krommendijk and Nikolas Tan as well as the members of the Migration & Borders Working Group of the Netherlands Network for Human Rights Research and the Working Group on the Role of Courts of the Refugee Law Initiative for their helpful comments on an earlier version of this article. All remaining mistakes are our own.

1

See https://data2.unhcr.org/en/situations/mediterranean. All Internet sources were last accessed on 15 August 2022.

3

See for instance Pijnenburg, A. 2018. From Italian Pushbacks to Libyan Pullbacks: Is Hirsi 2.0 in the Making in Strasbourg? European Journal of Migration and Law 20(4), pp. 396–426; Moreno-Lax, V. 2020. The Architecture of Functional Jurisdiction: Unpacking Contactless Control – On Public Powers, SS and Others v Italy, and the “Operational Model”. German Law Journal 21(3), pp. 385–416.

4

See for instance Baumgärtel, M. (2019). Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Vulnerability. Cambridge University Press; Kawar, L. (2015), Contesting Immigration Policy in Court. Legal Activism and Its Radiating Effects in the United States and France. Cambridge University Press. For a notable exception see Tan, N.F. 2018. The Manus Island Regional Processing Centre: A Legal Taxonomy. European Journal of Migration and Law 20(4), pp. 427–451.

5

Costello, C. and Mann, I. 2020. Border Justice: Migration and Accountability for Human Rights Violations. German Law Journal 21(3), pp. 311–334, at p. 312.

6

See Section 2 below.

7

Costello and Mann, supra note 5.

8

Ibid, p. 313.

9

See e.g. Costello and Mann, supra note 5 and other contributions to that special issue.

10

Tan, N.F. and Gammeltoft-Hansen, T. 2020. A Topographical Approach to Accountability for Human Rights Violations in Migration Control. German Law Journal 21(3), pp. 335–354, at p. 337.

11

Ibid.

12

Ibid.

13

Ibid.

14

Byrne, R. and Gammeltoft-Hansen. T. 2020. International Refugee Law Between Scholarship and Practice. International Journal of Refugee Law 32(2), pp. 181–199.

15

See for instance Tan, supra note 4; Costello and Mann, supra note 5.

17

Examples include: CJEU 21 December 2011, C-411/10 C-493/10, (N.S. v. United Kingdom and M.E. v. Ireland); ECtHR 13 February 2020, nos. 8675/15 and 8697/15 (N.D. & N.T. v. Spain); ECtHR 4 November 2014, no. 29217/12 (Tarakhel v. Switzerland).

18

See Section 4.

19

‘People on the move’ can be defined as ‘people who are moving from one place to another for relatively long periods of time’ and, in the context of this paper, they include refugees and migrants who travel irregularly: Pijnenburg, A. and Rijken, C. 2021. Moving beyond Refugees and Migrants: Reconceptualising the Rights of People on the Move. Interventions 23(2), pp. 273–293.

20

Van der Pas, K. 2021. Conceptualising Strategic Litigation. Oñati Socio-Legal Series 11(6). Available at https://opo.iisj.net/index.php/osls/article/view/1315.

21

See https://www.oxfordbibliographies.com/view/document/obo-9780199756223/obo-9780199756223-0031.xml. For a narrower definition see Passalacqua, V. 2021. Who Mobilizes the Court? Migrant Rights Defenders Before the Court of Justice of the EU. Law and Development Review 15(2), pp. 381–405.

22

For instance, the Global Legal Action Network (GLAN), one of the key players in this field, aims to ‘identify and pursue legal actions that promote accountability for human rights violations’, see https://www.glanlaw.org/about-us. In the field of migration and borders, GLAN’s legal strategies ‘challenge the fast-changing policies that result in various forms of violence being inflicted on this vulnerable population.’ See https://www.glanlaw.org/migrationandborders.

23

See Section 2.

24

See for instance https://www.notonourborderwatch.com/; Front-LEX, 2020. Press Release: The First Legal Action Against Frontex for Human Rights Violations, 15 February 2020. Available at: https://www.front-lex.eu/wp-content/uploads/2021/06/The-First-Legal-Action-v.-Frontex-Press-Release.pdf.

25

Frenzen, N. 2011. Italian Defence Minister: Italy-Libya Friendship Agreement is “Defunct, Inoperative, Suspended”. Migrants at Sea blog, 28 February 2011. Available at: https://migrantsatsea.org/2011/02/28/italian-defence-minister-italy-libya-friendship-agreement-is-%e2%80%9cdefunct-inoperative-suspended%e2%80%9d/.

26

On the Hirsi case see: Giuffré, M. 2012. Watered-down Rights on the High Seas: Hirsi Jamaa and Others v. Italy (2012). International and Comparative Law Quarterly 61(3), pp. 728–750; Den Heijer, M. 2013. Reflections on Refoulement and Collective Expulsion in the Hirsi Case. International Journal of Refugee Law 25(2), pp. 265–290; Moreno-Lax, V. 2012. Hirsi Jamaa and Others v Italy or the Strasbourg Court versus Extraterritorial Migration Control? Human Rights Law Review 12(3), pp. 574–598.

27

See for instance European Commission, 2015. European Agenda on Migration. COM 240 final; European Commission, 2020. Communication on a New Pact on Migration and Asylum. COM 609 final.

30

Amnesty International, 2015. Europe’s Sinking Shame: The Failure to Save Refugees and Migrants at Sea. Available at: https://www.amnesty.org/en/wp-content/uploads/2021/05/EUR0314342015ENGLISH.pdf.

31

Stierl, M. 2017. A Fleet of Mediterranean Border Humanitarians. Antipode 50(3), pp. 704–24, at p. 705.

32

See https://www.avvenire.it/c/attualita/Documents/Codice%20ONG%20migranti%2028%20luglio%202017%20EN.pdf; Cusumano, E. 2019. Straightjacketing Migrant Rescuers? The Code of Conduct on Maritime NGO s. Mediterranean Politics 24(1), pp. 106–114.

33

See https://fra.europa.eu/sites/default/files/fra_uploads/table_2_criminalisation_ngo_sar_as_of_june_2021_en.pdf; Zirulia, S. (2021). Is that a Smuggler? The Blurring Line between Facilitating Illegal Immigration and Providing Humanitarian Assistance and the European Borders, in: Controlling Immigration Through Criminal Law: European and Comparative Perspectives on ‘Crimmigration’. Gatta, G.L., Mitsilegas, V. and Zirulia, S. (Eds), Volume 12 Hart Studies in European Criminal Law, pp. 235–265, at pp. 242–248.

34

FRA, 2021. December 2021 Update – Search and Rescue (SAR) operations in the Mediterranean and fundamental rights, 17 December 2021. Available at: https://fra.europa.eu/en/publication/2021/december-2021-update-ngo-ships-sar-activities; IOM, 2019. Calculating “Death Rates” in the Context of Migration Journeys: Focus on the Central Mediterranean. Available at: https://publications.iom.int/system/files/pdf/mortality-rates.pdf.

35

Amnesty International, 2020. “Between Life and Death”: Refugees and Migrants trapped in Libya’s Cycle of Abuse. Available at: https://www.amnesty.org/en/wp-content/uploads/2021/05/MDE1930842020ENGLISH.pdf, pp. 16–17.

37

Cusumano, E. and Gombeer, K. 2020. In deep Waters: The Legal, Humanitarian and Political Implications of Closing Italian Ports to Migrant Rescuers. Mediterranean Politics 25(2), pp. 245–253, at pp. 246–47.

38

Cancellaro, F. (2021). Immigration Detention between Law and Practice in Italy: Managing the Border Through Arbitrary Detention, in: Controlling Immigration Through Criminal Law: European and Comparative Perspectives on ‘Crimmigration’. Gatta, G.L., Mitsilegas, V. and Zirulia, S. (Eds), Volume 12 Hart Studies in European Criminal Law, pp. 193–210, at p. 203; FRA, supra note 33.

40

Ghezelbash, D. and Tan, N.F. 2020. The End of the Right to Seek Asylum? COVID-19 and the Future of Refugee Protection. International Journal of Refugee Law 32(4), pp. 668–679, at p. 676.

41

Memorandum of Understanding on Cooperation in the Fields of Development, the Fight against Illegal Immigration, Human Trafficking and Fuel Smuggling and on Reinforcing the Security of Borders between the State of Libya and the Italian Republic, 2 February 2017. Available at: http://eumigrationlawblog.eu/wp-content/uploads/2017/10/MEMORANDUM_translation_finalversion.doc.pdf (unofficial translation).

42

European Council, 2017. Malta Declaration by the Members of the European Council on the External Aspects of Migration: Addressing the Central Mediterranean Route, 3 February 2017. Available at: www.consilium.europa.eu/en/press/press-releases/2017/02/03/malta-declaration/.

43

Maccanico, Y. 2020. Italy Renews Memorandum with Libya, as Evidence of a Secret Malta-Libya Deal Surfaces. Available at: www.statewatch.org/media/documents/analyses/no-357-renewal-italy-libya-memorandum.pdf.

44

MOU, supra note 41, Article 1(c).

45

Ibid, Article 4.

46

European Union, 2020. EU Support on Migration in Libya: EU Emergency Trust Fund for Africa North of Africa Window. Available at: https://ec.europa.eu/trustfundforafrica/sites/default/files/eutf_libya_en.pdf.

47

Amnesty International, supra note 35, p. 16.

48

Moreno-Lax, supra note 3, pp. 393–395.

49

Ibid, p. 396.

53

United Nations Support Mission in Libya (UNSMIL), 2021. Report of the Secretary-General, 19 January 2021. UN Doc S/2021/62, p. 10.

55

MOU, supra note 41, Article 2; Human Rights Watch, 2019. No Escape from Hell: EU Policies Contribute to Abuse of Migrants in Libya. Human Rights Watch, p. 27.

56

Oxfam, 2020. The EU Trust Fund for Africa: Trapped between Aid Policy and Migration Politics, pp. 23–24; see https://www.newyorker.com/magazine/2021/12/06/the-secretive-libyan-prisons-that-keep-migrants-out-of-europe.

57

Amnesty International, supra note 35, pp. 21–26; United Nations Support Mission in Libya (UNSMIL) and Office of the High Commissioner for Human Rights (OHCHR), 2018. Desperate and Dangerous: Report on the Human Rights Situation of Migrants and Refugees in Libya, 18 December 2018. Available at: www.ohchr.org/Documents/Countries/LY/LibyaMigrationReport.pdf.

58

See for instance Leghtas, I. 2017. “Hell on Earth”: Abuses Against Refugees and Migrants Trying to Reach Europe from Libya. Refugees International Field Report. Available at: https://static1.squarespace.com/static/506c8ea1e4b01d9450dd53f5/t/592f37468419c2ac554b4c9f/1496266580341/2017.6.1+Libya.pdf; Human Rights Watch, supra note 55.

59

Amnesty International, supra note 35, pp. 27–32; UNSMIL and OHCHR, supra note 57, pp. 27–34 and 42–51; UNSMIL, supra note 53, pp. 9–10.

60

Amnesty International, supra note 35, pp. 33–39.

61

Twenty-first report of the Prosecutor of the International Criminal Court to the United Nations Security Council pursuant to Resolution 1970 (2011), 17 May 2021. Available at: https://www.icc-cpi.int/itemsDocuments/210517-otp-report-unsc-libya-eng.pdf.

62

Directorate General for External Policies of the Union of the European Parliament, 2020. EU External Migration Policy and the Protection of Human Rights. PE 603.512, p. 132.

63

Achoud, M. and Spijkerboer, T. 2020. The Libyan litigation about the 2017 Memorandum of Understanding between Italy and Libya, EU Migration Law Blog, 2 June 2020. Available at: https://eumigrationlawblog.eu/the-libyan-litigation-about-the-2017-memorandum-of-understanding-between-italy-and-libya/.

64

Ibid.

65

Tribunale di Roma, ruling no. 22917/2019, in case 5615/2016. Available at: https://www.asgi.it/wp-content/uploads/2020/08/sentenza-22917.pdf.

66

ASGI, 2020. Right of asylum’s historic victory: illegally rejected back to Libya, today five Eritrean citizens have an entrance visa to seek protection, 30 August 2020. Available at: https://en.asgi.it/right-of-asylums-victory-entrance-visa-to-seek-protection/; see also supra note 65.

67

ASGI, 2019. African Fund under examination, 19 July 2019. Available at: https://en.asgi.it/african-fund-under-examination/.

68

ASGI, 2019. “Africa Fund” case F.A.Q. Available at: https://www.asgi.it/wp-content/uploads/2019/07/Africa-Fund-case-FAQ.pdf.

69

ASGI, supra note 67; Ibid; ANSA, 2020. Migrants: Council of State rules Italian aid to Libya legal, 11 September 2020. Available at: https://www.infomigrants.net/en/post/27206/migrants-council-of-state-rules-italian-aid-to-libya-legal.

70

ASGI, supra note 67 and 68.

71

Ibid; supra note 69.

72

ASGI, 2018. Mancata ratifica parlamentare del memorándum Italia-Libia: al via il ricorso allá Corte Constituzionale. Available at: https://www.asgi.it/asilo-e-protezione-internazionale/mancata-ratifica-parlamento-memorandum-italia-libia-ricorso-corte-costituzionale/; ASGI, 2020. ASGI requests the immediate annulment of the Italian -Libyan Memorandum, 2 February 2020. Available at: https://en.asgi.it/asgi-public-statement-on-italia-libya-memorandum-of-understanding/.

73

Ibid; Olivito, E. 2020. The constitutional fallouts of border management through informal and deformalised external action: the case of Italy and the EU. Diritto, Immigrazione e Cittadinanza 2, pp. 114–137.

75

ASGI, 2021. Complaint submitted to the Regional Public Prosecutor’s Office at the Court of Auditors. Available at: https://sciabacaoruka.asgi.it/wp-content/uploads/2021/03/Esposto-Corte-dei-Conti-ITA_ENG-1.pdf.

76

ASGI, 2021. ASGI asks the Italian Court of Auditors for an investigation into the use of public funds in detention centres in Libya, 27 January 2021. Available at: https://en.asgi.it/asgi-asks-the-italian-court-of-auditors-for-an-investigation-into-the-use-of-public-funds-in-detention-centres-in-libya/.

77

ASGI, 2021. The many faces of a shipwreck. Exposed to ascertain responsibility for the death of 130 people in the central Mediterranean Sea, 29 July 2021. Available at: https://en.asgi.it/the-many-faces-of-a-shipwreck-exposed-to-ascertain-responsibility-for-the-death-of-130-people-in-the-central-mediterranean-sea/.

78

See also Border Forensics, 2021. 22 April 2021 Shipwreck. Available at: https://www.asgi.it/wp-content/uploads/2021/07/Esposto_ricostruzione_border_forensics.pdf.

79

ASGI 2021, supra note 76.

80

NGO coalition requests African Commission on Human Rights to probe atrocities against migrants in Libya, 22 July 2019. Available at: https://www.asgi.it/wp-content/uploads/2019/07/Press-Realease-23.07.19.pdf.

81

Ibid.

82

ECtHR case no. 21660/18 (S.S. and others v. Italy). Available at: https://hudoc.echr.coe.int/eng?i=001-194748.

84

Forensic Oceanography 2018. Mare Clausum: Italy and the EU’s undeclared operation to stem migration across the Mediterranean. Available at: https://content.forensic-architecture.org/wp-content/uploads/2019/05/2018-05-07-FO-Mare-Clausum-full-EN.pdf.

86

Ibid.

87

GLAN, 2020. Petition to European Parliament Challenging EU’s Material Support to Libyan Abuses Against Migrants. Available at: https://www.glanlaw.org/single-post/2020/06/11/petition-to-european-parliament-challenges-eu-s-material-support-to-libyan-abuses-against.

88

HRC 4 November 2020, CCPR/C/130/D/3042/2017 (A.S., D.I., O.I. and G.D. v. Italy).

89

See https://www.doughtystreet.co.uk/barristers/professor-andrea-saccucci-associate. To our knowledge, no NGO s were involved in the case.

90

Supra note 88, par. 8.5–8.7.

91

Ibid, par. 10.

92

Ibid, par. 6.9.

93

Communication to the Office of the Prosecutor of the International Criminal Court, 2019. Available at: https://www.statewatch.org/media/documents/news/2019/jun/eu-icc-case-EU-Migration-Policies.pdf.

95

Forensic Oceanography, 2019. The Nivin case: Migrants’ Resistance to Italy’s Strategy of Privatized Push-back. Available at: https://content.forensic-architecture.org/wp-content/uploads/2019/12/2019-12-18-FO-Nivin-Report.pdf; Communication to the United Nations Human Rights Committee in the case of SDG against Italy. Available at: https://c5e65ece-003b-4d73-aa76-854664da4e33.filesusr.com/ugd/14ee1a_e0466b7845f941098730900ede1b51cb.pdf.

96

CSDM, 2020. Information Submitted under Article 20 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment concerning Italy’s responsibility for the torture of migrants pulled back to Libya. Available at: https://centre-csdm.org/wp-content/uploads/2020/07/CAT-Art.-20-Inquiry-CSDM-01.07.2020.pdf.

97

Open letter asking the International Maritime Organization (IMO) to deregister the Libyan SAR zone, 29 June 2020. Available at: https://www.statewatch.org/media/1203/imo-letter-29-6-20.pdf.

98

Ibid.

99

ASGI, 2020. Complaint to the UN Human Rights Committee over the role of Italy, Malta, and Libya in violating the right to leave Libya, resulting in denial of the rights of asylum seekers, 24 July 2020. Available at: https://en.asgi.it/complaint-human-rights-committee-right-to-leave-libya-sylum/.

100

FIDH, 2021. Crimes against Humanity in Libya: ICC must Investigate, 23 November 2021. Available at: https://www.fidh.org/en/region/north-africa-middle-east/libya/migrants-and-refugees-in-libya-face-crimes-against-humanity-icc-must.

101

ECCHR, FIDH, LFJL, 2021. No Way Out: Migrants and Refugees Trapped in Libya Face Crimes Against Humanity. Available at: https://fidh.org/IMG/pdf/no_way_out_migrants_and_refugees_trapped_in_libya_face_crimes_against_humanity_en-3.pdf.

102

ASGI, 2021. Press Conference: Italy and Libya brought before the UN CEDAW Committee by two Women Victims of Trafficking, 3 December 2021. Available at: https://en.asgi.it/press-conference-italy-and-libya-brought-before-the-un-cedaw-committee-by-two-women-victims-of-trafficking/.

103

Ibid.

104

See for example Communication to the Human Rights Committee in the case of SDG v. Italy, supra note 95, par. 57.; Complaint to the ECA Concerning the Mismanagement of EU Funds by the EU Trust Fund for Africa’s ‘Support to Integrated Border and Migration Management in Libya’ (IBM) Programme, par. 81–85. Available at https://c5e65ece-003b-4d73-aa76-854664da4e33.filesusr.com/ugd/14ee1a_ae6a20e6b5ea4b00b0aa0e77ece91241.pdf.

106

This term is inspired by FitzGerald’s ‘integrated advocacy’ (see Section 4).

107

Regulation (EU) 2019/1896 of the European Parliament and of the Council of 13 November 2019 on the European Border and Coast Guard and repealing Regulations (EU) No 1052/ 2013 and (EU) 2016/1624, Article 4.

108

Libya has not made a declaration under Article 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights.

109

ACtHPR 3 June 2016, Application 002/2013 (AfrComHPR v. State of Libya), par. 51.

110

See for instance CAT, Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Australia. UN Doc CAT/C/AUS/CO/4–5, par. 17; HRC, Concluding Observations on the Sixth Periodic Report of Australia, 1 December 2017. UN Doc CCPR/C/AUS/CO/6, par. 35; CESCR, Concluding Observations on the Fifth Periodic Report of Australia, 11 July 2017. UN Doc E/C.12/AUS/CO/5, par. 18.

111

Akande, D. (2018). International Organizations, in: International Law. Evans, M. (Ed). Oxford University Press, pp. 227–258, at pp. 247–251.

112

Passalacqua, supra note 21.

113

Fink, M. 2020. The Action for Damages as a Fundamental Rights Remedy: Holding Frontex Liable. German Law Journal 21(3), pp. 532–548, at p. 547.

114

Gkliati, M. (2021). Systemic Accountability of the European Border and Coast Guard: The Legal Responsibility of Frontex for Human Rights Violations, PhD thesis, Leiden University, p. 288.

115

Front-LEX, 2021. Legal Action against FRONTEX Submitted, 25 May 2021. Available at: https://www.front-lex.eu/2021/05/25/legal-action-against-frontex-submitted-2/; Front-LEX, 2021. Another lawsuit filed against EU border management agency, 21 October 2021. Available at: https://www.front-lex.eu/2021/10/21/another-lawsuit-filed-against-eu-border-management-agency/.

116

Tan and Gammeltoft-Hansen, supra note 10, p. 353.

117

Baumgärtel, supra note 4, p. 138.

118

Gammeltoft-Hansen, T. (2011). Access to Asylum: International Refugee Law and the Globalisation of Migration Control, Cambridge University Press, pp. 211–13; FitzGerald, D.S. (2019). Refuge Beyond Reach: How Rich Democracies Repel Asylum Seekers. Oxford University Press, p. 11.

119

Galanter, M. 1974. Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change. Law & Society Review 9(1), pp. 95–160, at pp. 98–100.

120

Ibid, p. 97.

121

Ibid, pp. 98–100.

122

See for example Article 1 ECHR, Article 2(1) ICCPR.

123

See ECtHR 19 December 2001, no. 52207/99 (Banković and others v. Belgium and others); ECtHR 7 July 2011, no. 55721/07 (Al-Skeini and others v. United Kingdom); ECtHR 23 February 2012, no. 27765/09 (Hirsi Jamaa and others v. Italy).

124

Pijnenburg, supra note 3.

125

See also Tan and Gammeltoft-Hansen, supra note 10, pp. 348–349.

126

See for instance HRC, supra note 88; HRC, 2018. General Comment No 36 on the Right to Life, UN Doc CCPR/C/GC/36; HRC 13 March 2020, CCPR/C/128/D/3043/2017 (A.S., D.I., O.I. and G.D. v. Malta).

127

Italy has ratified the Convention on the Rights of the Child as well as its Optional Protocol on a Communications Procedure.

128

See for instance CRC 30 September 2020, CRC/C/85/D/79/2019-CRC/C/85/D/109/2019 (L.H., L.H., D.A, C.D. and A.F. v France); CRC 22 September 2021, CRC/C/88/D/104/2019 (Sacchi et al. v. Argentina).

129

Compare Article 1 ECHR and Article 51(1) Charter of Fundamental Rights of the European Union.

130

See also Baumgärtel, M. 2018. High Risk, High Reward: Taking the Question of Italy’s Involvement in Libyan ‘Pullback’ Policies to the European Court of Human Rights. EJIL:Talk!. Available at: https://www.ejiltalk.org/high-risk-high-reward-taking-the-question-of-italys-involvement-in-libyan-pullback-policies-to-the-european-court-of-human-rights/.

131

Hirschl, R. (2011). The Judicialization of Politics, in: Oxford Handbook of Political Science. Goodin, R. (Ed.), Oxford University Press, p. 270; Cornelisse, G. and Moraru, M. (2020). Introduction: Judicial Dialogue on the Return Directive: Catalyst for Changing Migration Governance? in: Law and Judicial Dialogue on the Return of Irregular Migrants from the European Union. Moraru, M., Cornelisse, G. and De Bruycker, P. (Eds.) Hart Publishing, Oxford, p. 21.

132

Passalacqua, supra note 21, p. 11.

133

Baumgärtel, M. 2020. Facing the Challenge of Migratory Vulnerability in the European Court of Human Rights. Netherlands Quarterly of Human Rights 38(1), pp. 12–29, at p. 12; Costello and Mann, supra note 6, p. 320; Spijkerboer, T. 2018. Bifurcation of People, Bifurcation of Law: Externalization of Migration Policy before the EU Court of Justice. Journal of Refugee Studies 31(2), pp. 216–239.

134

Spijkerboer, T. 2021. The Geopolitics of Knowledge Production in International Migration Law, in: Research Handbook on the Law and Politics of Migration. Dauvergne, C. (Ed.) Edward Elgar, Cheltenham/Northampton, pp. 172–188. See also Tan and Gammeltoft- Hansen, supra note 10, pp. 346–350.

135

Giuffré, supra note 26; Den Heijer, supra note 26; Moreno-Lax, supra note 26.

136

Mann, I. 2013. Dialectic of Transnationalism: Unauthorized Migration and Human Rights, 1993–2013. Harvard International Law Journal 54(2), pp. 315–391, at p. 369. See also Moreno-Lax, supra note 3; Pijnenburg, A. 2020. Containment instead of Refoulement: Shifting State Responsibility in the Age of Cooperative Migration Control? Human Rights Law Review 20(2), pp. 306–332, at pp. 310–311.

137

Tan and Gammeltoft-Hansen, supra note 10, p. 337.

138

See for example the recent attempt to legalise pushbacks: https://www.statewatch.org/media/2859/eu-12-ms-joint-letter-hybrid-attacks-pushbacks-eu-law-7-10-21.pdf. This problem is more broadly referred to as judicialisation, see Alter, K., Hafner-Burton, E. and Helfer, L. 2019. Theorizing the Judicialization of International Relations. International Studies Quarterly 63(3), pp. 449–463.

139

Mann, supra note 136, p. 388.

140

Tan and Gammeltoft-Hansen, supra note 10, p. 352.

141

Kalpouzos, I. 2020. International Criminal Law and the Violence against Migrants. German Law Journal 21(3), pp. 571–597. See also Kalpouzos, I. and Mann, I. 2015. Banal Crimes against Humanity: The Case of Asylum Seekers in Greece. Melbourne Journal of International Law, 16(1), pp. 1–28.

142

FitzGerald, supra note 118, pp. 257–258.

143

See for instance Moreno-Lax, supra note 3; Costello and Mann, supra note 5.

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