Italian prosecutors are investigating the captain of the ship Sea-Watch 5 for possible aggravated complicity in illegal immigration after aerial footage recorded by Frontex showed the German NGO vessel receiving migrants directly from a boat apparently operated by smugglers.
The footage, recorded on May 11th, approximately 45 miles northeast of Tripoli, shows five masked men supervising the transfer of 90 people using several smaller boats. Once the transfer is completed, the men wave to the crew and head back at high speed towards the Libyan coast. The following day, other videos show another vessel approaching the Sea-Watch 5 without any visible signs of damage or distress.
The ship later disembarked 166 people in Brindisi, Italy. Most of the illegal immigrants are Bangladeshi nationals, reports say. Italian police searched the vessel, copied its navigation data and seized several logbooks.
Sea-Watch denies that any prior rendezvous took place and maintains that its crew was fulfilling its international obligation to assist people in danger. The organisation also alleges that a Libyan patrol boat fired at and threatened the vessel during the operation.
The investigation will have to determine whether there was prior coordination or whether the incident was a rescue carried out in response to a dangerous situation. That distinction is essential. Maritime conventions require assistance to be provided regardless of the immigration status of those on board. But the duty to rescue cannot become automatic immunity when there are indications of organised contact with those paid to transport people illegally into Europe.
Brussels should use the case to close a grey area that has weakened its migration policy for years. A European proposal to harmonise the prosecution of migrant smuggling is still under negotiation, and the Irish Presidency of the Council has announced that it will make the legislation a priority.
Future legislation should require private vessels to hand over their communications, navigation data and audiovisual records; cooperate immediately with Frontex and national prosecutors; submit to financial audits; and provisionally suspend their operations when there is substantial evidence of collaboration with criminal networks.
A clear exemption must also be preserved for genuine rescue operations. Criminalising every act of rescue would be illegal and irresponsible. Automatically excluding NGOs from any possible liability would be equally so. A humanitarian flag cannot serve as a shield from criminal prosecution.
