A Sound Legal Argument, but the Wrong Medium? Reflections on S.S. and Others v. Italy and the Limits of Strategic Litigation

 

Paolo Biondi

Photo credit: Gzen92, via Wikimedia Commons

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Abstract

The June 2025 S.S. and Others v. Italy judgment marked a missed opportunity—and a cautionary tale. Although the applicants advanced a legally coherent theory grounded in SAR, SOLAS, UNCLOS, and Strasbourg precedent, their case depended on a weak factual matrix. As a result, the ECtHR declined jurisdiction. However, shortly before, an analogous incident occurred where Rome MRCC expressly instructed Libya to intercept—while sidelining Sea‑Watch. This scenario presented stronger grounds for Strasbourg jurisdiction as Rome’s decision directly determined which vessel rescued (or rejected) migrants, causing their return. Such instructions, with knowledge of their likely outcome, implicate in a more clear-cut case Italy in Libya-run refoulement. Strategically, the lesson is clear, doctrine requires vehicles. The wrong case risks irrelevance. In border externalisation litigation, doctrinal ambition must be rooted in unambiguous control and causation.

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I am grateful to Prof. Steve Peers, Royal Holloway, University of London and Dr. Miles Jackson, University of Oxford for their insightful comments on an earlier draft of this blog post.

 

On 12 June 2025, the European Court of Human Rights (ECtHR) delivered its much-anticipated decision in S.S. and Others v. Italy (henceforth S.S.), declaring the application inadmissible. The case had raised fundamental questions about the responsibility of European States in orchestrating or outsourcing maritime interceptions to third countries. More broadly, it tested the outer limits of extraterritorial jurisdiction under Article 1 of the European Convention on Human Rights (ECHR) in the context of so-called “pullback” operations to Libya.

Much of the academic (here and here) and advocacy community has responded with disappointment. Yet, I believe this case offers a unique opportunity for reflection on whether this particular case was fit for purpose. That is, whether the litigation strategy—however sophisticated doctrinally—aligned with the Court’s existing standards and practices for establishing jurisdiction.

In this piece, I argue that S.S. may have had sound legal arguments but the wrong case. The judgment reflects, at least in part, a mismatch between an ambitious theory of control and a fact pattern too attenuated to support the weight placed on it. This matters not only for assessing S.S., but also for the design of future cases seeking to challenge externalised border controls.

 

The Legal Frame: Jurisdiction under Article 1 ECHR

The applicants in S.S. were twelve survivors of a fatal 2017 maritime incident involving a migrant boat in distress off the Libyan coast. On 6 November 2017, the Rome Maritime Rescue Coordination Centre (MRCC) received a distress call from the vessel. It subsequently shared the coordinates with vessels in the area, including the Libyan Coastguard vessel Ras Jadir, which assumed command of the operation. While the NGO Sea-Watch 3 ultimately rescued 59 persons and brought them to Italy, 47 others were intercepted and returned to Libya. At least 20 people died. The applicants included ten survivors who were brought to Italy and two who were forcibly returned to Libya, where they allegedly suffered ill-treatment in detention (See events reconstruction by Forensic Architecture).

The core question before the Court was whether Italy’s involvement in the rescue coordination—particularly its initial coordination of the Search and Rescue (SAR) case—was sufficient to establish jurisdiction ratione personae under Article 1 ECHR. The Court held that it was not.

Recalling its well-established position that the Convention applies primarily within the territory of the Contracting States, the Court reiterated the exceptional nature of extraterritorial jurisdiction (Banković and Others v. Belgium, § 61; Al-Skeini and Others v. the United Kingdom, § 132). The two main bases recognised in the case law remain: (1) effective control over territory and (2) authority and control over individuals (Medvedyev and Others v. France, § 67; Hirsi Jamaa and Others v. Italy, § 74). The Court explicitly declined to rely on the two additional grounds acknowledged in M.N. and Others v. Belgium—namely, the exercise of public powers abroad and the establishment of procedural jurisdiction through investigative or operational obligations (see S.S., § 80, departing from M.N., §§ 104–107). It also implicitly reaffirmed M.N.’s rejection of a broader “cause-and-effect” theory of jurisdiction, according to which a State’s decisions with extraterritorial consequences might suffice to trigger Article 1 jurisdiction (see M.N., §§ 113–124).

In S.S., the Court found that Italy neither exercised territorial control in Libya nor personal control over the applicants. It focused in particular on the autonomy of the Libyan Coastguard: the Ras Jadir acted independently and did not respond to requests from other vessels or from an Italian navy helicopter to coordinate rescue efforts (§§ 100–102). The applicants’ contention that Italy’s initiation of SAR procedures and instruction to Libya amounted to a form of control was dismissed as unsupported by the Court’s case law (§ 104).

 

The Core Problem: A Weak Factual Matrix

The legal theory advanced by the applicants was not implausible. Drawing on Hirsi Jamaa, Al-Skeini, and Güzelyurtlu and Others v. Cyprus and Turkey, the case sought to extend jurisdiction to what might be termed “functional control”—a form of indirect authority exercised through coordination, operational influence, and outsourcing. It invited the Court to engage with the reality of modern border governance, one where responsibility is fragmented and delegated, yet consequences remain deadly.

However, the factual platform on which this theory rested was thin. Most of the applicants were rescued by Sea-Watch and disembarked in Italy. Only two were subjected to return to Libya. Even for these individuals, the direct link between Italian conduct and the harm suffered was difficult to trace. There was no physical custody, no boarding of an Italian vessel, and no clear-cut operational command over the rescuing actors.

Moreover, the Court's decision-making reflects a deep concern for preserving its doctrinal boundary lines. By declining to accept SAR coordination as a basis for jurisdiction, the Court implicitly reaffirmed a preference for factual control over persons, not merely over procedures or outcomes. As it stated, “the mere fact that the search and rescue procedure was initiated by the Rome MRCC cannot have resulted in bringing the applicants under the jurisdiction of the Italian State” (S.S., § 106). This formalism was foreseeable, given that an alternative outcome could result even in more reticence to coordinate SAR operations in the Mediterranean Sea.

 

A Stronger Case Was Possible

A more promising case took place months before, again involving Sea-Watch. In that later incident, the Sea-Watch 3 vessel on 10 May 2017 was first to arrive at the distress scene and was better equipped to carry out the rescue and to be the on-site coordinator. However, the Rome MRCC allegedly instructed the Libyan Coastguard to assume “on-scene command” while instructing the NGO to remain on stand-by. Following this, the Ras Jadir carried out the interception and returned the individuals to Libya.

From a jurisdictional perspective, this scenario could be significantly stronger. First, there is clear operational decision-making by Italian authorities that directly determined the outcome. Unlike S.S., where Italy informed all vessels and watched the case unfold while leaving it open to who would intervene not managing to keep under control the Libyan vessels involved, here Italy made the intentional and decisive choice of who would perform the rescue and who would not.

Second, there was a safer alternative actively excluded: Sea-Watch was on site and willing to perform the rescue and disembarkation in a place of safety. The Italian instruction, allegedly, effectively foreclosed a lawful and rights-respecting option, leading to a foreseeable violation of Article 3 ECHR.

Third, the concept of jurisdiction over persons can be more easily satisfied here. As in Hirsi Jamaa, where control over persons was exercised on the high seas by physically transferring migrants to Libyan authorities, this later case involved a chain of operational command (transfer of competence) that links Italy’s decision to the individuals’ fate. I have already argued at that time that this form of indirect operational control—particularly when paired with Italy's logistical and technical support to the Libyan Coastguard (which is much less relevant)—supports a finding of jurisdiction and even complicity under international law. Gauci, in a similar vein, has underlined that when a State issues instructions to third-country agents with full knowledge of foreseeable consequences, a jurisdictional link should be inferred, if not presumed.

If events were confirmed, this incident did differ materially from S.S. in one key respect, the degree of control exercised by Italian authorities. The Rome MRCC gave binding (not mere initial coordination) orders and handed over the case and people to the Libyans. At the same time, the MRCC had a better option (Sea-Watch) and the latter was more in line with standard SAR rules as Sea-Watch arrived first and was better equipped. The Libyan crew acted on these orders, and the outcome (return to Libya) was the direct result of decisions taken by Italian authorities. Sea-Watch this time was not left to decide whether to act or not but instead put on stand-by. Thus, a jurisdictional link ratione personae could arguably be established under Article 1 ECHR, following the reasoning of Hirsi Jamaa (exercised continuous and exclusive functional control) and even Güzelyurtlu on extraterritorial procedural obligations (the failure to act appropriately in the presence of options that prevents the realisation of Convention rights).

While S.S. invited the Court to make a doctrinal giant leap, this other case would have allowed it to apply existing doctrine to a novel but concrete scenario without the need even of using the complex legal arguments related to Italy’s material assistance and cooperation with Libya that distracted the Court from the core facts of the case.

 

 

Strategic Litigation and the Importance of the Right Vehicle

Strategic litigation often seeks to provoke legal development by advancing compelling cases that expose systemic injustices. But as the ECtHR’s decision in S.S. shows, doctrinal innovation is unlikely to occur unless supported by a compelling and carefully selected case. This raises important ethical considerations: while cause lawyers and civil society organisations may be driven by broader goals of legal change, they must ensure that the individual applicants are not treated merely as vehicles for test cases—particularly where the factual matrix is weak, the personal costs are high, and a negative ruling may entrench restrictive doctrines. In some situations, it may be ethically preferable not to bring a claim with limited chances of success, even if it aligns with a broader strategy, out of respect for the claimants’ rights, expectations, and wellbeing.

Besides the choice of case, the S.S. arguments appears to have overfocused on abstract structural control (Italy’s coordination role, SAR authority, NAURAS), rather than clear factual chains of causation that could demonstrate how Italy’s decisions determined the applicants’ fate. The strategy leaned heavily on the “public powers” doctrine and the notion of procedural jurisdiction (from M.N.), which had never been firmly accepted in Strasbourg jurisprudence. In doing so, it may have underplayed the more pragmatic narrative: that Italy chose to allow Libya to act in its stead in that specific moment, despite having a safer alternative (Sea-Watch). In hindsight, the case in S.S. also suffered from overreliance on structural arguments (e.g. Italy’s funding, training, and equipping of Libya’s Coastguard) while under developing more important individualised factual narratives demonstrating Italy’s control over the applicants, and an ambitious framing that leaned heavily on underdeveloped doctrines like procedural jurisdiction, which the Court has historically been reluctant to accept outside of investigative contexts (H.F. and Others v. France, § 195).

The inclusion of copious material from UN agencies, International Maritime Organisation (IMO), Medicines Sans Frontiers (MSF), and Forensic Oceanography was impressive in breadth, but possibly overwhelmed the Court without connecting every piece back to personal jurisdiction over the applicants. The applicants’ case risked being “over-lawyered”—strong on structural critique, but weaker on the concrete “why this engages jurisdiction here and now”.

This does not diminish the value of the case as advocacy. But for Strasbourg litigation—particularly in the sensitive domain of migration control—the Court has shown itself to be doctrinally cautious and highly fact-dependent. To trigger jurisdiction under Article 1, applicants must be able to show that the respondent State exercised direct, operational control over them in a way that materially affected their rights.

 

Beyond Strasbourg: Other Legal Avenues

The Court in S.S. briefly acknowledged that other international legal frameworks may govern rescue coordination and refoulement at sea (S.S., § 87). These include obligations under the International Convention for the Safety of Life at Sea (SOLAS) and the United Nations Convention on the Law of the Sea (UNCLOS), and customary international law. The limitations of Article 1 ECHR jurisdiction in this context may signal the need to litigate such “outsourced” responsibility in other fora. One pending example is Case T-136/23 – Sea-Watch v Frontex before the Court of Justice of the European Union (CJEU), which challenges the EU agency’s alleged role in facilitating interceptions by the Libyan Coastguard. There, unlike S.S., applicants invoke direct documentary evidence of Frontex’s aerial surveillance data being used to support pullbacks in a systematic way. While the facts of the case are not publicly disclosed yet, it most likely concerns the case of 30 July 2021 incident, in which a migrant boat was intercepted and returned to Libya after being detected by a Frontex surveillance drone operating within the Maltese SAR zone. This alternative litigation strategy—using a different legal regime and possibly a stronger evidentiary trail—may prove more effective in establishing responsibility and ensuring accountability. It reinforces the central theme of this piece: that strategic litigation must align legal argument, jurisdictional doctrine, and a compelling factual substrate.

 

Another alternative forum for litigation is the UN Human Rights Committee (HRC). In fact, through its decision in A.S. and Others v. Italy (Communication No. 3042/2017), the Committee already accepted once a functional understanding of jurisdiction in a strikingly similar context. The HRC reasoned that Italy had established jurisdiction when its MRCC received a distress call and continued operational involvement, had a naval asset in close proximity and had legal obligations under maritime law and consequently created a “special relationship of dependency” between the individuals on board and Italian authorities (see A.S. and Others, paras 7.5–7.8, citing HRC Gen. Comm. 36). They held that this dependency, coupled with Italy’s operational decision-making, was sufficient to trigger obligations under the International Covenant on Civil and Political Rights (ICCPR)—including non-refoulement—despite the absence of physical custody as per Hirsi.

The ECtHR’s dismissal of such reasoning in S.S. (see § 80) thus highlights a significant divergence between ECHR and the International Covenant on Civil and Political Rights (ICCPR) jurisprudence. That said, I would argue that in A.S. and Others, the facts reveal a higher degree of control exercised by the Italian authorities compared to the S.S. case. This underscores the importance of assessing each case on its own merits, as jurisdictional findings depend on the specific circumstances and evidence presented and less on more academic discourse.

These alternative fora underscore that accountability for outsourced border practices is not foreclosed—only displaced. While the ECtHR may adopt a narrow interpretation of jurisdiction, other institutions, such as the EU courts and the Human Rights Committee, have demonstrated greater openness to recognising functional forms of control. For strategic litigators, this means diversifying venues and tailoring claims to the doctrinal terrain of each forum.

 

Conclusion: A Missed Opportunity, and a Lesson for the Future

While the S.S. judgment may be considered disappointing by some, part of the problem lies in the litigation strategy itself. S.S. is a reminder that strategic litigation must be strategic. The cause may be just. The legal theory may be sound. The political climate may be urgent. But if the factual matrix does not lend itself to a clear jurisdictional finding, the case will falter.

In contrast, other emerging cases—where the Rome MRCC more directly excludes European rescue actors and instructs Libyan authorities to intervene—offer a firmer and more evidentiary-rich basis for establishing jurisdiction. These scenarios may provide the ECtHR with an opportunity to revisit the issues left unresolved in S.S., and to do so through doctrinal continuity rather than rupture. However, it is important to bear in mind that jurisdictional determinations remain case-specific. Recognition of functional jurisdiction in one case does not automatically imply the same outcome in others. That said, courts may be encouraged to draw broader conclusions—such as identifying a minimum threshold of degree of control necessary to trigger jurisdiction in such cases—as they did in Hirsi Jamaa.

S.S. also illustrates a broader truth: when one door closes, others may still be ajar. As the pending Frontex case and the A.S. and Others v. Italy ruling before the UN Human Rights Committee show, different legal regimes may be more receptive to the realities of functional control at sea. Strategic litigation must therefore be both doctrinally agile and forum-sensitive—matching facts not just to law, but to the institutions most likely to listen. Yet whatever the forum of choice, the lesson remains: a sound legal argument must be paired with the right vehicle. Otherwise, as in S.S., the Court may close a door it was not yet ready to open.

A Dutch dangerous experiment in criminalizing compassion: How a parliamentary "slip-up" could create Europe's harshest migration law

 

Huub Verbaten, Research Fellow at the Clingendael Institute

Photo credit: Markus Bernet, via Wikimedia commons

On the evening of July 3, 2025, as Dutch parliamentarians prepared to vote on what could become some of Europe's most restrictive asylum laws, NSC MP Diederik Boomsma posed a question that cut to the heart of a dangerous policy experiment. Would offering a "bowl of soup" to someone without legal papers now be a criminal offense?

The question wasn't rhetorical. Just days earlier, a last-minute amendment by Geert Wilders' far-right PVV had passed through what opposition parties later called a "slip-up" in parliamentary procedure. The amendment didn't just criminalize being undocumented in the Netherland, it also made helping undocumented people a punishable offense. Suddenly, the simple act of human kindness that Boomsma described could land someone in jail.

Justice Minister David van Weel's initial response was telling: "Illegal is illegal. The law, is the law." But when pressed again later that evening, he backtracked, saying the criminalization clause wouldn't take immediate effect and would need assessment by the Council of State. The next day, Deputy Minister Thierry Aartsen offered a more pointed critique: "There should be no soup police."

This exchange encapsulates something profound about the moment we're witnessing in European migration policy. What began as political theater, a way for parties to signal toughness on immigration, has evolved into something more dangerous: the systematic criminalization of both vulnerability and compassion. The Netherlands, long seen as a pragmatic, tolerant society, is conducting an experiment in governance through criminalization that could reshape not just migration policy, but the very nature of civil society.

The mechanics of a political accident

To understand how the Netherlands arrived at this point, you need to understand the chaotic final days of the parliamentary session that ended July 3, 2025. What unfolded was less deliberate policymaking than political accident, resulting in a series of miscalculations and missed opportunities that produced legislation even its supporters seemed uncomfortable defending.

The story begins with the collapse of the four-party coalition government just one month earlier. Migration had been the breaking point. Geert Wilders, whose PVV party led the coalition, pulled the plug in June, claiming his partners were moving too slowly on promised migration restrictions. The irony was palpable: Wilders destroyed his own government over the very issue he'd finally gained power to address.

The criminalization amendment emerged from this toxic environment. Originally, the asylum legislation focused on reducing temporary residency permits from five to three years, suspending new permanent residency permits, and restricting family reunification.

These were significant changes, but they operated within existing legal frameworks. The PVV amendment changed everything. When the vote came on July 3, the numbers tell the story of a deeply divided parliament. The main asylum bill passed 95 to 55 MP votes, a comfortable margin that reflected broad support for tighter restrictions. But the criminalization amendment passed much more narrowly, and only because several opposition MPs were absent during the crucial vote. It was, in the words of multiple observers, a "slip-up" that produced one of Europe's harshest migration laws.

The Christian Democrats, who had initially supported the broader asylum package, immediately withdrew their backing once the criminalization clause was added. This wasn't careful policymaking. It was political improvisation under pressure, with consequences that extend far beyond the immediate parliamentary arithmetic.

The evidence against criminalization

The Dutch experiment in criminalizing illegal residence isn't happening in a vacuum. Other European countries have tried similar approaches, and the results offer a sobering preview of what the Netherlands can expect. The evidence is clear (see here and here): criminalization doesn't reduce irregular migration, but it does create a host of new problems.

Start with the basic premise underlying the Dutch legislation that making illegal residence a crime will deter people from coming or staying. Research (here and here) from the Netherlands' own Research and Documentation Centre (WODC) has repeatedly debunked the assumption that illegality and criminality go hand in hand. A recent German study reached similar conclusions, finding no evidence that immigration increases crime rates. Migrants are primarily driven by safety, prospects, and family, not by policy measures. The deterrence theory, appealing as it might sound to politicians, simply doesn't hold up under scrutiny.

The international evidence is even more damning. Belgium offers perhaps the most instructive comparison. Since 1980 - 45 years ago - Belgium has maintained criminal penalties for illegal residence, with fines up to 200 euros and prison sentences up to three months. The result? Belgium currently hosts an estimated 112,000 undocumented residents (see here and here), more than double the highest estimates for the Netherlands (23,000 to 58,000). If criminalization were an effective deterrent, Belgium should have far fewer undocumented residents, not far more.

Germany has taken a different approach that highlights the contradictions in criminalization strategies. Through its Duldung (toleration) system, Germany provides temporary legal status to people who cannot be deported. Between 2015 and 2020, Germany issued nearly 660,000 residence permits to people who had previously been living illegally in the country. Rather than criminalizing these individuals, Germany regularized their status, reducing the undocumented population from 300,000 in 2022 to 240,000 in 2023.

Italy provides the starkest example of criminalization's failures. Since 1998, Italy has maintained criminal penalties for illegal residence, with fines reaching 10,000 euros and mandatory deportation orders. Yet Italian courts have repeatedly rejected the harshest applications of these laws (see here and here). In 2023, it was determined that a protection permit (protezione speciale) may not be automatically denied without an individual assessment. Meanwhile, the informal economy grew, and with it, the vulnerability of undocumented individuals. Since 2020, the number of detected irregular migrants has increased nearly tenfold, from fewer than 23,000 to more than 195,000 in 2023 (see here and here). The paradox is stark: the stricter the policy, the larger the population it fails to control.

What is criminalized in one European country can offer protection in another. While the Netherlands seeks to criminalize illegal stay, countries like Italy and Germany have humanitarian exceptions: protezione speciale, Duldung. The result? Two people in exactly the same situation can face completely different outcomes, purely depending on where they are.

These differences are not minor legal technicalities because they touch on something fundamental: the fairness of European migration policy. How do you explain that someone in Germany might receive a Duldung for policy-related or personal reasons, while that same person would be considered a criminal in the Netherlands?

Systems under breaking point

The Dutch criminalization experiment arrives at a particularly unfortunate moment: when the country's justice system is already stretched beyond capacity. The Netherlands' justice system is currently in crisis. Prison overcrowding has become so severe that the government recently implemented early release programs for convicted criminals to free up cell space. Into this strained system, the criminalization amendment would inject thousands of new cases annually.

The Association of Dutch Municipalities (VNG) has been particularly vocal about the implementation challenges. In their assessment, the legislation creates an impossible situation: municipalities are legally required to provide basic services to vulnerable populations, but the new law would criminalize providing those very services. As VNG chairperson Sharon Dijksma put it, "Municipalities will soon have to break one law in order to comply with another law."

Police leadership opposes Minister Van Weel’s legislation (see here and here): 'Not every illegal alien is a nuisance' and 'When providing assistance to someone who is in the country illegally, the police would actually be in violation. This is an undesirable situation.'

The system strain isn't limited to formal institutions. Civil society organizations that have provided humanitarian assistance for decades suddenly find themselves in legal jeopardy. Churches offering sanctuary, NGOs providing food and shelter, even individual citizens helping neighbors could face criminal prosecution.

The logic of political theatre

If criminalization doesn't work as policy, why does it persist as politics? The answer reveals something uncomfortable about contemporary democratic governance: the gap between what sounds effective and what actually works has become a chasm that politicians exploit rather than bridge.

The Dutch criminalization amendment serves primarily as what political scientists call "symbolic legislation”, laws designed more to send messages than to solve problems. The message is clear: we take illegal immigration seriously enough to make it a crime. The audience isn't primarily migrants, who research shows are rarely deterred by such policies. The audience is voters who want to see their representatives "doing something" about immigration.

This dynamic isn't new in Dutch politics. The current proposal represents the third major attempt to criminalize illegal residence in the past two decades. Each time, the same pattern emerges: political pressure builds for "tough" action on migration, criminalization is proposed as a solution, experts warn about practical problems and limited effectiveness, and the proposal either dies or gets watered down. The current version broke this cycle not because the underlying problems were solved, but because political circumstances aligned to push it through despite expert opposition.

The criminalization approach also serves another political function: it shifts responsibility away from government failure. If the Netherlands cannot effectively manage migration through existing legal and administrative tools, criminalizing the problem makes it someone else's responsibility e.g. police, prosecutors, judges. When these institutions inevitably struggle with implementation, politicians can blame them for being "soft" rather than acknowledging the inadequacy of the policy itself.

When compassion becomes criminal

The most profound impact of the Dutch criminalization experiment may not be on migration patterns, which research suggests will remain largely unchanged, but on the fabric of civil society itself. When basic human compassion becomes potentially criminal, the effects ripple far beyond the immediate targets of the legislation.

Consider the position of healthcare providers who regularly treat undocumented patients. Under the new legislation, providing medical care to someone without legal status could potentially constitute "assistance" to illegal residence. The law contains no explicit medical exemption, leaving healthcare providers in an impossible position: violate their professional oath to "do no harm," or risk criminal prosecution for helping vulnerable patients.

The Dutch legislation creates what legal scholars call "overcriminalization", the expansion of criminal law into areas traditionally governed by administrative procedures or moral obligations. When criminal penalties attach to activities that most people consider morally neutral or even praiseworthy, the law loses legitimacy and becomes harder to enforce fairly.

The European Court of Justice has recognized this complexity in a series of recent rulings that establish minimum standards for human dignity even in restrictive migration regimes. The Jawo decision established that Dublin transfers cannot leave asylum seekers destitute. Haqbin confirmed that even problematic asylum seekers retain rights to basic accommodation. The ruling in Changu underlines that Member States may be strict in their return policies, but they remain responsible for the basic needs of people who cannot (yet) be deported.

The Court recently ruled that illegal travel into EU by a third-country national with minors does not constitute a criminal offence when claiming international protection. Therefore, the Italian law contravenes EU law. These rulings reflect a fundamental principle: human dignity is not conditional on legal status.

The European Commission made a proposal at the end of 2023 for a new directive aimed at clarifying the approach to assisting with illegal residence in the EU. The Netherlands supports the proposal but at the same time emphasized as recently as March 2024 that humanitarian aid must not be criminalized. The Meijers Committee warns that the directive risks criminalizing humanitarian aid and urges the EU to amend vague provisions allowing Member States too much discretion in prosecutions.

An increasing number of aid workers have appeared in court across several Member States for assisting undocumented individuals. According to a recent report by the PICUM network, at least 142 people in Europe were prosecuted in 2024 for helping migrants, including 62 in Greece, 29 in Italy, 17 in Poland, and 17 in France.

The choice ahead

The Dutch criminalization experiment now moves to its final act. When the upper house reconvenes after the summer recess, senators will face a choice that extends far beyond migration policy. They will decide whether the Netherlands embraces governance through criminalization or returns to its tradition of pragmatic, evidence-based policymaking.

The vote is expected to be extremely close. The Christian Democrats, who withdrew support in the lower house over the criminalization amendment, hold enough seats in the upper chamber to block the legislation if they maintain their opposition. This means the fate of one of Europe's harshest migration laws may come down to a handful of votes from politicians who weren't even directly elected on this issue.

The choice facing Dutch senators reflects a broader tension in contemporary democracy between responsive governance and responsible governance. Responsive governance gives people what they want, even when what they want is based on incomplete information or emotional reactions. Responsible governance sometimes requires leaders to resist popular pressure in favor of policies that actually work.

The criminalization amendment represents responsive governance at its worst, a policy that sounds tough but creates more problems than it solves. Responsible governance would acknowledge the legitimate concerns about migration while pursuing solutions that actually address those concerns rather than simply expressing frustration about them.

What would responsible migration governance look like? It would start with honest assessment of what's actually possible. Most undocumented residents in the Netherlands cannot be deported, either because their countries of origin won't accept them or because deportation would violate international law. Criminalizing these people doesn't make deportation more feasible; it just makes their lives more precarious.

The question that began this analysis - whether offering a bowl of soup to someone without papers should be a crime - captures the essence of this choice. Societies that criminalize basic human compassion don't become more secure or more prosperous. They become less humane and ultimately less democratic.

The Netherlands still has time to choose a different path. The question is whether its democratic institutions are strong enough to take it.