CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 mai 2025

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border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sED25C6F4 { width:14.94%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s700D731A { width:18.26%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s80E2687E { width:31.24%; border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center }   FIRST SECTION DECISION Application no. 21660/18 S.S. and Others against Italy   The European Court of Human Rights (First Section), sitting on 20   May 2025 as a Chamber composed of:   Ivana Jelić, President ,   Erik Wennerström,   Alena Poláčková,   Georgios A. Serghides,   Raffaele Sabato,   Alain Chablais,   Artūrs Kučs, judges , and Ilse Freiwirth, Section Registrar , Having regard to the above application lodged on 3   May 2018, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having regard to the comments submitted by the Council of Europe Commissioner for Human Rights (“the Commissioner for Human Rights”), who exercised her right to intervene in the proceedings, Having regard to the written comments received from the Office of the United Nations High Commissioner for Refugees (UNHCR), Médecins sans frontières (MSF), the International Commission of Jurists (ICJ) jointly with the Centre for Advice on Individual Rights in Europe (AIRE Centre), the Dutch Council for Refugees (DCR) and the European Council on Refugees and Exiles (ECRE), Oxfam Italia, the Legal Clinic in International Protection of Human Rights (LCIPHR) at Roma Tre University, Amnesty International and Human Rights Watch (HRW), the International Human Rights Legal Clinic (IHRLC) of the University of Turin, and Defence for Children The Netherlands (DCN), who were given leave to intervene as third parties by the President of the Section, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. They were represented by Ms   L.   Cecchini and Ms   L.   Leo, lawyers practising in Rome, Ms   V.   Moreno Lax, a law graduate of Queen Mary University of London and Mr   Itamar Mann, a law graduate of the University of Haifa. 2.     The Government were represented by their Agent, Mr   L.   D’Ascia, Avvocato dello Stato . The circumstances of the case 3.     The facts of the case, as submitted by the applicants, may be summarised as follows. 4 .     The seventeen applicants are Nigerian and Ghanaian nationals who were part of a group of some one hundred and fifty people who left Libya in a rubber dinghy on the night of 5-6 November 2017, with a view to reaching European shores. 5 .     At 6.15   a.m. on the morning of 6   November 2017 the Maritime Rescue Coordination Centre (MRCC) in Rome received a distress signal from the dinghy, which was located thirty-three nautical miles north of Tripoli . The MRCC immediately issued a message requesting all nearby vessels to intervene and give assistance to the sinking dinghy. 6 .     According to the Government, as the intervention zone was within the maritime search and rescue region (“SAR region”) under the jurisdiction of Libya – as established by a unilateral declaration of July 2017 (see paragraph   25 below) – the MRCC also asked the Tripoli Joint Rescue Coordination Centre (JRCC) to take charge of coordinating the rescue operations. 7 .     The Dutch rescue vessel Sea-Watch   3 (“ SW3 ”), which was in the vicinity of the shipwreck at the time, contacted the Rome MRCC and offered to act as “on-scene commander” (“OSC”). 8 .     At the same time, the Tripoli JRCC informed the Rome MRCC that it had instructed the Libyan ship Ras Jadir to direct the rescue operations as OSC. 9 .     The Ras Jadir was first to reach the dinghy, at approximately 7.30   a.m. Upon arriving at the scene, the SW3 made several unsuccessful attempts to contact the Libyan ship in order to coordinate the rescue operations. The Ras Jadir contacted the SW3 at around 9   a.m. and instructed it to steer clear of the rescue zone, informing it that it had been designated as the coordinator of operations by the Tripoli coordination centre. 10 .     Meanwhile, having received an alert, the French military vessel Premier-Maître l’Her , along with an Italian navy helicopter and a EUNAVFOR Med aircraft, had also arrived at the scene, without taking part in the rescue operations, however. 11 .     According to the applicants, the manoeuvres carried out by the Libyan vessel produced water movement which caused the death of several people on board the dinghy, who were abruptly flung into the water. The applicants submitted that the crew of the Ras Jadir had failed to provide the shipwrecked individuals with life-jackets and had struck those in the water with ropes, also threatening them with weapons. 12 .     The various naval and airborne units in the shipwreck zone, including the Italian navy helicopter, unsuccessfully asked the crew of the Ras Jadir to shut down the ship’s engines so as to reduce swells and preserve the safety of the survivors. 13 .     The SW3 dispatched two lifeboats to rescue the individuals who had fallen overboard and pulled dozens of migrants aboard, including nine of the seventeen applicants. The crew of the SW3 also recovered the bodies of the deceased, including those of two children, the sons of the applicants S.S. and R.J. respectively. 14 .     The eight remaining applicants were first taken under the responsibility of the crew of the Ras Jadir on board that ship, following which six of them, namely E.K., A.A, I.A., M.O., J.O. and R.J., escaped with others and subsequently reached the SW3 . They claimed to have been injured by members of the Libyan crew, who had attempted to retain them on board the Ras Jadir . 15 .     The applicants R.J. and E.R.O., who had remained on board the Ras Jadir with about forty-five other survivors, alleged that the Libyan crew had bound them with ropes and had beaten and threatened them; they had been taken to a detention camp in Tajura, Libya, where they had been subjected to ill-treatment and abuse. On an unspecified date they were returned to Nigeria as part of the voluntary humanitarian return programme run by the International Organization for Migration (IOM). 16 .     The fifteen applicants who had boarded the SW3 were taken to Italy with others, where they were living when the application was lodged. The two applicants who remained on board the Ras Jadir , namely R.   J. and E.R.O., are in Nigeria. 17 .     In a letter of 25   August 2021 the applicants’ representatives informed the Court that they had lost contact with the applicants I.A., E.E.A., E.K., V.M. and J.O, (nos.   2, 4, 12, 13 and 14 on the list of applicants in the Appendix) but that all the other applicants could be reached by telephone and/or post. RELEVANT LEGAL FRAMEWORK Domestic legal framework Bilateral agreements between Italy and Libya 18 .     In 2007 Italy and Libya signed agreements to combat clandestine immigration (for further details, see Hirsi Jamaa and Others v.   Italy   [GC], no.   27765/09, ECHR   2012). According to a statement of 26   February 2011 by the Italian Minister of Defence, these agreements were suspended following the events of 2011 in Libya . 19 .     On 3   April 2012 the Italian Minister of the Interior went to Libya to resume cooperation between the two countries on immigration. According to his reply to parliamentary question no.   4-06711, the two States had signed an agreement at that time “providing for cooperation initiatives in the area of security and, in particular, to combat criminal organisations involved in migrant trafficking, to train police forces, monitor the coast and enhance surveillance of the Libyan border, in order to encourage the voluntary return of migrants”. The text of that agreement has not been made public . 20 .     On 2   February 2017 the Italian Government and the Libyan Government of National Accord, established under the auspices of the United Nations (UN) in 2016, signed a Memorandum of Understanding on cooperation in the areas of development, enhancing border security between Libya and Italy and combating illegal immigration, human trafficking and smuggling. The relevant parts of that Memorandum of Understanding read as follows (translation by the Registry): Article 1 “The Parties undertake to: (a) launch cooperation initiatives, in keeping with the programmes and activities of the Presidential Council and the Government of National Accord of the State of Libya, to support security and military institutions in order to stem the flow of irregular migrants and deal with the consequences thereof, in accordance with the Treaty of Friendship, Partnership and Cooperation signed between the two countries and the agreements and memoranda of understanding signed by the Parties; (b) Italy undertakes to provide funding and support for development programmes in the regions affected by illegal immigration, in sectors as diverse as renewable energy, infrastructure, health, transport, human resources development, teaching, personnel training and scientific research. (c) Italy undertakes to provide technical and technological support to the Libyan authorities responsible for combating illegal immigration, in particular the border police and coastguard of the Ministry of Defence, and the relevant bodies and departments [of] the Ministry of Home Affairs.” Article 2 “The Parties further undertake to take action in the following areas: (1) The completion of the land border control system in southern Libya, as provided for in Article   19 of the aforementioned Treaty. (2) The adaptation and financing of the ... reception centres already in operation, in compliance with the relevant regulations, making use of available Italian and European Union funds. Italy undertakes to contribute, through the supply of medicines and medical equipment to the medical reception centres, to meet the medical needs of unlawful migrants, for the treatment of serious communicable [or] chronic diseases. (3) The training of Libyan personnel in the aforementioned reception centres to deal with the conditions of unlawful migrants, by supporting the Libyan research centres working in this area, so that they can contribute to identifying the most appropriate methods for dealing with illegal immigration and human trafficking. (4) The Parties undertake to work together to propose, within three months of the signing of the present memorandum, a broader and more comprehensive vision of Euro-African cooperation aimed at eliminating the causes of illegal immigration, ... supporting the countries in which such immigration originates in the implementation of strategic development projects, raising the level of service industries to improve living standards and health conditions, and contributing to reducing poverty and unemployment. (5) Support for the international organisations present and operating in Libya in the field of migration to enable them to continue their efforts to facilitate the return migrants to their countries of origin, including by means of voluntary return. (6) Launching development programmes, through appropriate job creation initiatives, in the Libyan regions affected by illegal immigration, human trafficking and smuggling, as a form of ‘replacement income’.” Under Article   4 of the Memorandum of Understanding, Italy undertakes to finance the initiatives set out in the agreement, in addition to those proposed by a joint Italian-Libyan committee established thereunder. 21.     The agreement, which was renewed for the first time in 2020, was renewed for an additional five-year period in 2022. Relevant international material United Nations (UN) (a)    The 1982 United Nations Convention on the Law of the Sea (“the Montego Bay Convention”) 22 .     The UN Convention on the Law of the Sea was adopted in 1982. It was signed and ratified by Italy, whereas Libya has signed but not ratified it. Article   98 of the Montego Bay Convention reads as follows: Duty to render assistance “1. Every State shall require the master of a ship flying its flag, in so far as he can do so without serious danger to the ship, the crew or the passengers: (a) to render assistance to any person found at sea in danger of being lost; (b) to proceed with all possible speed to the rescue of persons in distress, if informed of their need of assistance, in so far as such action may reasonably be expected of him; (c) after a collision, to render assistance to the other ship, its crew and its passengers and, where possible, to inform the other ship of the name of his own ship, its port of registry and the nearest port at which it will call. 2. Every coastal State shall promote the establishment, operation and maintenance of an adequate and effective search and rescue service regarding safety on and over the sea and, where circumstances so require, by way of mutual regional arrangements co-operate with neighbouring States for this purpose.” (b)    The 1974 International Convention for the Safety of Life At Sea (“the SOLAS Convention”) 23 .     The States parties – including Italy and Libya – to the SOLAS Convention, which was adopted in 1974 within the framework of the International Maritime Organization (IMO), are requested “to ensure that necessary arrangements are made for distress communication and co-ordination in their area of responsibility and for the rescue of persons in distress at sea around [their] coasts. These arrangements shall include the establishment, operation and maintenances of such search and rescue facilities as are deemed practicable and necessary” (Chapter   V, Regulation   7). In addition, “the master of a ship at sea which is in a position to be able to provide assistance on receiving a signal from any source that persons are in distress at sea, is bound to proceed with all speed to their assistance, if possible informing them or the search and rescue service...” (Chapter V, Regulation 33). (c)    The 1979 International Convention on Maritime Search and Rescue, as amended in 2004 (“the SAR Convention”) 24 .     Both Italy and Libya are parties to the SAR Convention, which was also prepared by the IMO. The relevant parts of the Annex to the SAR Convention, as amended in 2004, provide: “2.1.4     Each search and rescue region shall be established by agreement among Parties concerned. The Secretary-General shall be notified of such agreements. ... 2.1.6     Agreement on the regions or arrangements referred to in paragraphs 2.1.4 and 2.1.5 shall be recorded by the Parties concerned, or in written plans accepted by the Parties. 2.1.7     The delimitation of search and rescue regions is not related to and shall not prejudice the delimitation of any boundary between States. ... 3.1.6.     Each Party should authorize its rescue co-ordination centres [RCCs]: 1.     to request from other rescue co-ordination centres such assistance, including vessels, aircraft, personnel or equipment, as may be needed; 2.     to grant any necessary permission for the entry of such vessels, aircraft, personnel or equipment into or over its territorial sea or territory; 3.     to make the necessary arrangements with the appropriate customs, immigration, health or other authorities with a view to expediting such entry; and 4.     to make the necessary arrangements in co-operation with other RCCs to identify the most appropriate place(s) for disembarking persons found in distress at sea. ... 3.1.9     Parties shall co-ordinate and co-operate to ensure that masters of ships providing assistance by embarking persons in distress at sea are released from their obligations with minimum further deviation from the ships’ intended voyage, provided that releasing the master of the ship from these obligations does not further endanger the safety of life at sea. The Party responsible for the search and rescue region in which such assistance is rendered shall exercise primary responsibility for ensuring such co-ordination and cooperation occurs, so that survivors assisted are disembarked from the assisting ship and delivered to a place of safety, taking into account the particular circumstances of the case and guidelines developed by the [International Maritime] Organization. In these cases, the relevant Parties shall arrange for such disembarkation to be effected as soon as reasonably practicable. ... 4.7.1     The activities of search and rescue units and other facilities engaged in search and rescue operations shall be co-ordinated on-scene to ensure the most effective results. 4.7.2     When multiple facilities are about to engage in search and rescue operations, and the rescue co-ordination centre or rescue sub-centre considers it necessary, the most capable person should be designated as on-scene co-ordinator as early as practicable and preferably before the facilities arrive within the specified area of operation. Specific responsibilities shall be assigned to the on-scene co-ordinator taking into account the apparent capabilities of the on-scene co-ordinator and operational requirements. 4.7.3.     If there is no responsible rescue co-ordination centre or, for any reason, the responsible rescue co-ordination centre is unable to co-ordinate the search and rescue mission, the facilities involved should designate an on-scene co-ordinator by mutual agreement. ... 4.8.5.     The rescue co-ordination centre or rescue sub-centre concerned shall initiate the process of identifying the most appropriate place(s) for disembarking persons found in distress at sea. It shall inform the ship or ships and other relevant parties concerned.” 25 .     On 7   July 2017 Libya submitted an initial unilateral declaration to the IMO concerning the country’s SAR region. On 14   December 2017 it submitted a second declaration, with partly amended geographical coordinates. The Libyan SAR region was recorded in the IMO database on 26   June 2018, after agreement by the neighbouring countries in accordance with Article   2.1.6. of the SAR Convention. (d)    IMO Resolution MSC.167(78) (adopted jointly with the SAR and SOLAS amendments by the Maritime Safety Committee in May 2004). 26 .     Resolution MSC.167(78) adopted by the IMO’s Maritime Safety Committee (MSC) contains recommendations to governments and ship masters on their obligations under humanitarian and international law in respect of persons rescued at sea. The resolution contains the following passages: “6.4     Normally, any SAR co-ordination that takes place between an assisting ship and any coastal State(s) should be handled via the responsible RCC. States may delegate to their respective RCCs the authority to handle such co-ordination on a 24-hour basis, or may task other national authorities to promptly assist the RCC with these duties. RCCs should be prepared to act quickly on their own, or have processes in place, as necessary, to involve other authorities, so that timely decisions can be reached with regard to handling survivors. ... 6.7     When appropriate, the first RCC contacted should immediately begin efforts to transfer the case to the RCC responsible for the region in which the assistance is being rendered. When the RCC responsible for the SAR region in which assistance is needed is informed about the situation, that RCC should immediately accept responsibility for co-ordinating the rescue efforts, since related responsibilities, including arrangements for a place of safety for survivors, fall primarily on the Government responsible for that region. The first RCC, however, is responsible for co-ordinating the case until the responsible RCC or other competent authority assumes responsibility. 6.8     Governments and the responsible RCC should make every effort to minimize the time survivors remain aboard the assisting ship. 6.9     Responsible State authorities should make every effort to expedite arrangements to disembark survivors from the ship; however, the master should understand that in some cases necessary co-ordination may result in unavoidable delays. ... 6.12     A place of safety (as referred to in the Annex to the 1979 SAR Convention, paragraph   1.3.2) is a location where rescue operations are considered to terminate. It is also a place where the survivors’ safety of life is no longer threatened and where their basic human needs (such as food, shelter and medical needs) can be met. Further, it is a place from which transportation arrangements can be made for the survivors’ next or final destination. ... 6.16     Governments should co-operate with each other with regard to providing suitable places of safety for survivors after considering relevant factors and risks. 6.17     The need to avoid disembarkation in territories where the lives and freedoms of those alleging a well-founded fear of persecution would be threatened is a consideration in the case of asylum-seekers and refugees recovered at sea. 6.18     Often the assisting ship or another ship may be able to transport the survivors to a place of safety. However, if performing this function would be a hardship for the ship, RCCs should attempt to arrange use of other reasonable alternatives for this purpose.” (e)    Italy’s report to the International Maritime Organization 27.     On 15   December 2017 Italy submitted a report to the IMO on the results of cooperation between Italy and Libya under the “Libyan Maritime Rescue Coordination Centre Project” financed by the European Commission. In so far as relevant, the report’s findings were as follows: “12.     The Italian Coast Guard is playing a key role in strengthening the capacity of the relevant Libyan authorities in the area of Search and Rescue at sea. In particular, the assistance provided to the Libyan Authorities in setting up the MRCC and facilitating SAR agreements with Libya’s neighbouring countries could, in the medium-long term, enhance the operational capacity of the competent Libyan authorities in carrying out maritime surveillance and tackling irregular border crossings...” (f)      The Position on Returns to Libya of the Office of the United Nations High Commissioner for Refugees (UNHCR) 28.     In September 2018 the UNHCR published the second update on its Position on Returns to Libya. In this document, it described the situation of migrants in Libya as follows (footnotes omitted): “17. Asylum-seekers, refugees and migrants transiting through or remaining in Libya are reportedly particularly vulnerable in the context of the volatile security situation and deteriorating socio-economic conditions. The majority of asylum-seekers, refugees and migrants do not have access to residence permits, putting them at acute risk of arrest and detention for irregular stay. As a result of their irregular status and lack of legal documents, as well as widespread discriminatory practices (particularly, but not exclusively, against persons from sub-Saharan countries), they are reportedly often excluded from social security mechanisms and denied access to basic services, including emergency health care, resulting in poor living conditions. Many are therefore compelled to resort to negative coping strategies. According to a December   2017 study, no significant differences were found in terms of access to resources and services between refugees and migrants who were long-term residents compared to those who had arrived in the country more recently. ... 19. Following interception or rescue of individuals at sea, the Libyan Coast Guard (LCG) hands the persons over to the authorities of the Directorate to Combat Illegal Migration (DCIM), which transfers them directly to government-run detention centres where they are held for indefinite periods. Presently, there is no possibility of release, except in the context of repatriation, evacuation or resettlement to third countries. At the time of writing, UNHCR estimates that over 8,000   persons, including more than 4,500   persons of the nine nationalities that UNHCR is able to register in Libya, are held in detention centres run by the DCIM after having been rescued or intercepted at sea, or after having been arrested on land during house raids or identity checks including near land borders. There are no available figures for those held by various armed factions or criminal networks in unofficial detention centres, including in warehouses and farms. In all facilities, detention conditions reportedly fail to meet international standards and have been described as ‘ appalling’ , ‘ nightmarish’ , ‘ cruel, inhuman and degrading .’ Both male and female asylum-seekers, refugees, and migrants, including children, are reportedly systematically subjected to or are at very high risk of torture and other forms of ill-treatment, including rape and other forms of sexual violence, forced labour as well as extortion, both in official and unofficial detention facilities. Racial and religious discrimination in detention is also reported. Those detained have no possibility to challenge the legality of their detention or treatment. Third-country nationals in detention are also impacted by the general security situation in the country as demonstrated during the late August 2018 escalation in fighting between rival armed groups in Tripoli.” 29.     In September 2020 a document setting out the “UNCHR position on the designations of Libya as a safe third country and as a place of safety for the purpose of disembarkation following rescue at sea” was published. The relevant parts of that document read as follows (footnotes omitted): “14. Since 2017, Italy and the EU provide assistance to the Libyan Coast Guard (LCG) to increase its capacity to carry out search and rescue operations and prevent irregular departures on the Central Mediterranean route. As a result of increased LCG operations, the number of people successfully crossing from Libya to Europe, particularly to Italy, has reduced significantly since 2017. However, in May 2020 UNHCR observed a renewed increase in departures from Libya as a result of increased fighting and deteriorating living conditions and loss of livelihoods due to COVID-19. Out of the total number of people who do attempt the crossing, the proportion of persons intercepted or rescued at sea by the LCG has increased. The increase in interception and rescue operations conducted by the LCG resulted in greater numbers of persons disembarked in Libya. The LCG have reportedly been involved in human rights violations against asylum-seekers, refugees and migrants, including the use of firearms. The LCG have also been accused of colluding with smuggling networks. Against this background, in April 2020 a European Parliament majority demanded that cooperation with the LCG be stopped. 15. In parallel, the activities of non-governmental organization (NGO) rescue boats have been increasingly restricted, including by criminal proceedings and the seizure of vessels, leading some to suspend rescue operations. Additionally, some states began closing ports during the COVID-19 crisis, declaring them unsafe, and thereby preventing NGO search and rescue boats from docking. These developments, among others, have led to an estimated higher percentage of people dying at sea than ever before. 16. In June 2018, Libya formally declared a Search-and-Rescue Region ..., indicating that it assumed primary responsibility for search and rescue coordination in an area extending to around 100   miles from some of the primary embarkation sites. Libya established a Joint Rescue Coordination Centre (JRCC), reportedly supported by Italy. In a number of instances, NGOs reported difficulties to contact the JRCC. ... Designation of Libya as a Place of Safety for the Purpose of Disembarkation following Rescue at Sea 33. In the context of rescue at sea and in line with international maritime law, disembarkation is to occur in a predictable manner in a place of safety and in conditions that uphold respect for the human rights of those who are rescued, including adherence to the principle of non-refoulement. When persons are rescued at sea, including by military and commercial vessels, ‘ the need to avoid disembarkation in territories where [their] lives and freedoms ... would be threatened ’ is relevant in determining what constitutes a place of safety. In light of the volatile security situation in general and the particular protection risks for foreign nationals (including arbitrary and unlawful detention in substandard conditions in State-run detention centres, and reports of serious violations and abuses against asylum-seekers, refugees and migrants by, among others, militias, traffickers and smugglers), UNHCR does not consider that Libya meets the criteria for being designated as a place of safety for the purpose of disembarkation following rescue at sea. 34. UNHCR therefore calls on States to refrain from returning to Libya any persons rescued at sea and to ensure their timely disembarkation in a place of safety. UNHCR recalls that the principle of non-refoulement applies wherever a state exercises jurisdiction, including where it exercises effective control in the context of search and rescue operations outside its territory. Where a State’s coordination or involvement in a SAR operation, in view of all the relevant facts, is likely to determine the course of events, UNHCR’s view is that the concerned State’s negative and positive obligations under applicable international refugee and human rights law, including non-refoulement, are likely to be engaged.” (g)    The International Law Commission’s draft Articles on Responsibility of States for Internationally Wrongful Acts 30.     Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries were adopted by the International Law Commission (ILC) at its fifty-third session, in 2001, and submitted to the General Assembly of the United Nations as a part of the ILC’s report covering the work of that session (A/56/10). The report appeared in the Yearbook of the International Law Commission, 2001, vol.   II, Part Two. The relevant parts of that report read as follows: Article   2 Elements of an internationally wrongful act of a State “There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.” Article 16 Aid or assistance in the commission of an internationally wrongful act “A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if: (a) that State does so with knowledge of the circumstances of the internationally wrongful act; and (b) the act would be internationally wrongful if committed by that State.” The commentary on Article   16 includes the following: “(3) Article 16 limits the scope of responsibility for aid or assistance in three ways. First, the relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted State internationally wrongful; secondly, the aid or assistance must be given with a view to facilitating the commission of that act, and must actually do so; and thirdly, the completed act must be such that it would have been wrongful had it been committed by the assisting State itself.” (h)    The 1951 Geneva Convention relating to the Status of Refugees (“the Refugee Convention”) 31.     The Refugee Convention defines which persons may be considered “refugees” and establishes the rights to be afforded to them. Articles   1 and 33   §   1 of that convention provide: Article 1 “... For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. ...” Article 33 § 1 “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” In its Note on International Protection of 13   September 2001 (A/AC.96/951, §   16), the UNCHR, which is entrusted with supervising the application of the Refugee Convention by the States Parties, made the following observations concerning the principle of non - refoulement laid down in Article   33: “The obligation of States not to ... refoule refugees ... is a cardinal protection principle ..., to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States. In addition, international human rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum-seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement , whether of an individual seeking asylum or in situations of mass influx.” Council of Europe (a)    The Parliamentary Assembly 32 .     On 28   June 2017 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution   2174   (2017) headed “Human rights implications of the European response to transit migration across the Mediterranean”, the relevant parts of which read as follows: “9.     The arrival of migrants in Italy is, to a large extent, the result of the inability of the Libyan authorities to control their borders. While the level of search and rescue operations should be maintained, the European Union should increase its efforts to effectively combat networks of smugglers in the Mediterranean and enhance co-operation with the Libyan Coast Guard. Any co-operation with the Libyan authorities must be based on effective respect by both sides for essential provisions of international human rights law, including the right to leave a country, the right to seek and enjoy asylum and the prohibition on refoulement . ... 12.     The Assembly calls on the European Union: 12.1.     with regard to reducing the number of sea crossings and saving lives, to: 12.1.1.     maintain at least the present level of search and rescue operations; 12.1.2.     enhance the fight against smugglers and traffickers; 12.1.3.     step up its co-operation with the Libyan Coast Guard and, in particular, ensure funding for training programmes, assist in establishing a maritime rescue co-ordination centre and support the provision of additional patrolling vessels and ensure their maintenance, on condition that the Libyan Coast Guard can be verified as operating with full respect for the fundamental rights of refugees and migrants, including by not exposing them to situations in which they are at risk of serious ill-treatment; 12.1.4.     engage with the Libyan authorities to ensure that the extremely serious and widespread violations of the rights of refugees and migrants are brought to an end and the conditions in centres for migrants are improved, with particular attention given to vulnerable people and minors; step up co-operation with the Office of the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM) in this respect; support capacity building in migration management for the Libyan authorities; and launch cooperation programmes with Libyan host authorities; ...” 33 .     In 2018, PACE adopted Recommendation   2136   (2018) and Resolution   2228   (2018) headed “Human rights impact of the ‘external dimension’ of European Union asylum and migration policy: out of sight, out of rights?”, in which it stated, inter alia , as follows: “3.     The declared objectives of the delegation of migration procedures to countries outside the European Union’s borders are to ease the migratory pressure on member States at the European Union’s borders, thus facilitating migrants’ onward resettlement throughout Europe and a more regular influx; to reduce migrants’ need to undertake potentially fatal land and sea journeys; and to promote co-operation with Europe’s neighbours in migration management. In the recent Resolution   2215   (2018) ‘The situation in Libya: prospects and role of the Council of Europe’, the Assembly notes that the European Union’s Triton and Sophia air and sea operations resulted in a reduction of nearly 32% of arrivals on the Italian coasts between November 2016 and November 2017, that these operations have saved over 200   000 lives since 2014 and that the European Union provides much of the funding for the activities of the United Nations High Commissioner for Refugees and the International Organization for Migration in aid of refugees and migrants. 4.     However, the shifting of responsibilities through the enlistment of third countries to reinforce European Union border controls entails serious human rights risks; it increases the risk of migrants being ‘stranded’ in transit countries through readmission, as well as the increased use of punitive and restrictive measures such as refoulement , arbitrary detention and ill-treatment. It is also a way for many European Union member States to distance themselves from the politically divisive issue of assisting and integrating refugees. Keeping migrants at a greater distance may also in fact provide a means of avoiding situations of refoulement within Europe. In the above-mentioned Resolution   2215   (2018), the Assembly called on the Council of Europe member States to comply with their obligations under Article   3 of the European Convention on Human Rights (ETS   No. 5), which requires them to refrain from sending migrants back to countries where they are exposed to the risk of torture and inhuman or degrading treatment or punishment, and not to co-operate on migration control with third countries if this is likely to result in violations of Article   3. 5.     Despite what might be termed as the success of the European Union’s externalisation policies in contributing to a reduction in the number of migrants entering Europe, it has become clear that the involvement of third countries in migration management has compromised the rights of asylum seekers on many occasions. The member States should do more to ensure that these rights are defended and maintained, especially where this degradation is a direct consequence of measures decided in Europe. Europe is both morally and politically accountable. 6.     The Assembly considers that migrants who have been, or will be, the subjects of asylum processing organised by the European Union outside its borders may find themselves in a ‘legal limbo’ with regard to the guarantee of the fundamental rights stemming both from the United Nations 1951 Convention relating to the Status of Refugees and the European Convention on Human Rights. That is because the countries concerned may not have equivalent human rights standards or legal instances to uphold them, whereas asylum seekers face difficulties in holding the European Union or individual States responsible for possible human rights violations. 7.     This difficulty in upholding rights is all the more serious as the people in question are more exposed to their denial: in extreme situations there is proof that migrants have been subjected to refoulement, torture and inhuman and degrading treatment and even slavery, as revealed in Libya; in others, they are consistently subjected to discrimination, arbitrary detention and lack of social protection and economic opportunities. 8.     Externalisation policies have been introduced without due regard to the need to ensure that their implementation does not jeopardise human rights. In addition, there is a growing tendency to make development assistance conditional on countries’ taking on migration procedures. For countries which by definition lack sufficient capacity to respond to the needs of their own populations, this amounts to creating more tensions and difficulties. 9.     The Parliamentary Assembly therefore urges member States to: ... 9.2.     refrain from externalising migration control to countries in which legislation, policies and practice do not meet the standards of the European Convention on Human Rights and the United Nations Convention relating to the Status of Refugees, and where State agencies cannot effectively ensure the protection of these rights. To achieve this, human rights impact assessments at national and regional level should be carried out by States before entering into such co-operation; 9.3.     introduce conditions in all agreements and arrangements concerning asylum management providing for human rights protection of migrants and asylum seekers... . ... 11.     The Assembly asks the Government of Italy to: 11.1.     make any co-operation, both present and future, with the Libyan Coastguard dependent on respect for refugees’ and migrants’ fundamental rights, particularly by refraining from exposing them to situations in which they risk being subjected to severe ill-treatment, in accordance with its Resolution   2174   (2017) on human rights implications of the European response to transit migration across the Mediterranean; 11.2.     in accordance with its Resolution   2215   (2018), delay the setting up of a new Maritime Rescue Co-ordination Centre in Libya until capacity building has ensured improved governance structures, to ensure adequate international human rights law training for the Libyan Coastguard, and to maintain and improve co-operation with non-governmental organisations (NGOs) carrying out search and rescue operations in the Mediterranean in accordance with international rules and agreements concluded by individual countries; 11.3.     investigate fully the allegations of experts and international NGOs, such as Amnesty International, of returns to Libya of migrants picked up at sea in the Italian search and rescue zone, and of collusion between the Libyan coastguard and the human smugglers in the Mediterranean.” 34.     In Resolution   2299   (2019) PACE stated as follows: “8.     In order to avoid responsibility, member States increasingly make attempts to prevent migrants from crossing their border and to keep them out of their jurisdiction. To this end, frontline States in particular conclude agreements with their neighbouring countries, which are requested to pr