Judging a Ghost: S.S. and Others v. Italy and the Indispensable Third Party

Endemann, Fabian

Abstract

This blogpost critically examines the Grand Chamber decision of the European Court of Human Rights (ECtHR) in S.S. and Others v. Italy, a case where Italy’s alleged complicity in returning shipwrecked migrants to Libya was ultimately deemed inadmissible for lack of jurisdiction. He contends that the judgment hinged on a problematic invocation of the “indispensable third-party” rule—a procedural doctrine that created a jurisdictional loophole shielding Italy’s alleged complicity by treating Libya’s actions as beyond the Court’s reach. The analysis frames Libya as a “spectral” presence in the case: a non-party of the Convention that was factually central yet legally absent, whose sovereignty the Court treated as a shield against any finding of human rights liability. This perspective exposes a deeper flaw in the European Convention on Human Rights’ jurisdictional architecture, revealing how such jurisdictional constraints can be weaponised to preclude accountability for extraterritorial human rights violations. By blending doctrinal analysis with structural critique, the article invites legal scholars to reconsider the ECHR’s "politics of jurisdiction" and confront its institutional architecture that allow states to evade human rights accountability.