Between 2007 and 2009, Italy and Libya (then under the rule of Colonel Muammar Gaddafi) concluded several agreements to combat clandestine immigration. Pursuant to these agreements, Italy instated a policy of sending undocumented migrants and asylum seekers who had crossed the Mediterranean Sea from Africa back to Libya. In a number of cases, boats were intercepted on the high seas, and those on board sent back to Libya without a prior individualized assessment of their situation and protection needs. The present judgment concerns one such ‘‘push back operation’’ during which Italy intercepted a group of Somali and Eritrean nationals on the high seas, took them back to Tripoli, and handed them over to the Libyan authorities.

In recent years, national and international courts have grappled with the questions of foreign state immunity and foreign official immunity from domestic jurisdiction over claims arising from human rights abuses committed under color of foreign law. Foreign state immunity involves the immunity ratione personae of the state as a juridical person, as well as that of the state’s agencies, instrumentalities, and political subdivisions. Foreign official immunity involves the immunity ratione personae of incumbent heads of state and diplomats, as well as the immunity ratione materiae of other current and former officials for acts performed in the scope of their official duties.

On October 15, 2015, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Perinçek v. Switzerland. The judgment contested a criminal provision applied in Switzerland against a Turkish politician who had publicly denied a historical fact of the Armenian genocide. Notwithstanding variations in reasoning, the outcome in the Grand Chamber is similar to the previous decision of the Chamber on this case in 2013. The Swiss criminal provision applied in the context of the denial of the Armenian genocide was again found irreconcilable with freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).