Torture? Execution? German Justice Through the Eyes of a Somali Pirate

A courtroom in Hamburg is the scene of a head-on collision between two worlds as the German justice system tries 10 Somali pirates who hijacked a cargo ship. The pirates, some of whom are under 18, had no idea what a court or a trial was and were afraid they would be tortured -- or executed -- by the judge.

By Beate Lakotta in Hamburg

AP

This odyssey is Abdiwali's fate, and only God knows how it will end. It almost came to an end for him once before, in the Indian Ocean.

They had been held on board the Dutch warship Tromp, where Dutch marines had blindfolded them and secured them to the deck with handcuffs. Abdiwali was terrified that they would be tortured, so much so that he managed to loosen his handcuffs and jump overboard, hundreds of nautical miles off the Somali coast.

As he watched the Tromp slip away in the cool, smooth waters, he expected to be attacked by a shark. "I wanted the ocean to swallow me. I preferred to die quickly," he says today. Instead, they returned to fish him out of the water. Abdiwali swam a few strokes in an attempt to get away, but then he gave up, realizing trying to swim away from a frigate was pointless. He wept as they pulled him out of the water.

Abdiwali was eventually brought to Hamburg, where he now presses his face against the vision slit in the prisoner transport vehicle every time he is taken to court. First the port flies by, and then the vehicle travels through the tunnel under the river and along the wide streets of downtown Hamburg, with its magnificent buildings. He has never seen anything as beautiful as this city.

It's so clean outside, as if everything had been licked clean. There is no trash. There are no wrecked buildings riddled with bullet holes. The people walk around in coats and hats. He too was given warm clothing, after arriving here in a T-shirt and sandals -- the uniform of a Somali pirate.

Trying to Understand German Justice

Since last November, Abdiwali has seen the free world fly by outside the prisoner transport vehicle twice a week, when he is taken from the youth prison far out on a bleak peninsula jutting into the Elbe River to the courthouse, which looks like a castle from the front. But defendants arrive in the back of the building, through the basement of the pretrial detention center, which looks more like a dungeon.

The officers take the Somalis through long, dark hallways until they finally reach the door to the courtroom, with its pale white walls, as large as a gymnasium with high ceilings. None of the 10 Somalis on trial has ever been in a courtroom before. They have been in Germany for almost a year now, and yet none of them knows the language or the customs of this country. All they know are the prison and this courtroom. Abdiwali's seat is in the last row where the defendants sit. He is flanked by Rainer Pohlen and Markus Blumenstein, his defense lawyers. He puts on the simultaneous interpretation headphones for Somali and tries to get his head around his fate.

It began on April 5, 2010. The MV Taipan, a container ship owned by the Hamburg-based shipping company Komrowski, was 530 nautical miles east of the Horn of Africa, en route from Djibouti to Mombasa, Kenya. The vessel was sailing under the German flag, which meant that under international maritime law it is effectively considered a floating piece of German territory in the Indian Ocean. In the calm waters, the Taipan was a sitting duck when the pirates attacked.

Their mother ship was the Hud Hud, an Indian dhow. From there, they approached the Taipan in small, open speedboats known as skiffs. The pirates fired at the bridge with Kalashnikovs, and also apparently used a grenade launcher. The bullets pierced windows and steel bulkheads. Using ladders and ropes, 10 pirates boarded the Taipan and searched the ship. But they couldn't find the crew, who had fled into a hidden safe room.

Caught Red-Handed

Before going to the safe room, the crew had sent out a distress call. One of the ships that received the call was the Dutch frigate Tromp, which was searching for pirates nearby as part of the European Union's anti-piracy "Operation Atalanta."

A helicopter took off from the Tromp, and elite soldiers in combat gear slid down ropes while others provided covering fire. They liberated the crew and detained the pirates. One of them was Abdiwali M., who said that he was 16.

The Dutch marines could have disarmed the pirates and dropped them off in a skiff near the Somali coast, as is sometimes done with suspects. However, these 10 men had been caught red-handed, and they hadn't even thrown their weapons overboard. But because the Dutch didn't want to be stuck with the pirates, the Somalis were handed over to the Germans.

Not surprisingly, Abdiwali had never heard of the principle of universal jurisdiction under international law, which served as the legal basis for his odyssey. Under the universal jurisdiction principle, piracy is an internationally outlawed offence. According to the United Nations Convention on the Law of the Sea (UNCLOS), it can be prosecuted on the high seas at any time and by almost every country on earth. But since Kenya recently withdrew from a treaty under which it had agreed to conduct the costly piracy trials in its courts in return for payment from the West, the industrialized nations have had to come up with their own solutions to dealing with the pirates. This is a new set of circumstances, and it is one of the reasons the world is now looking to Hamburg with such great interest.

Hung from the Yardarm

In the past, pirates were hung from the yardarm or dumped into the sea. In Somalia, their hands and feet would be chopped off, at the very least. The German government, however, has had 10 pirates transported 6,000 kilometers to grant them a fair trial. In this sense, the trial in courtroom 337 at the Hamburg district court is also providing Germany with a chance to reaffirm the superiority of its democratic values, including its commitment to the rule of law.

The pirates are being charged with attacking maritime traffic and abduction with intent to extort money, for which the maximum penalty is 15 years for adults and 10 for minors. It ought to be a short trial, given the amount of evidence piled up in the room where the court keeps its exhibits: ladders, knives, pistols, five assault rifles, two grenade launchers and a cricket bat.

On the other hand, the Dutch also fired their weapons, leading to questions like: Who was responsible for which bullet holes? Evidence deteriorates quickly in the salty sea air. There are no fingerprints, and most of the defendants have been tight-lipped. Nevertheless, the court is leaving no stone unturned in its effort to prove who did the shooting and what kinds of weapons were used. If the rule of law is supposed to be a universal principle, there can be no second-class justice for Somali pirates.

Each pirate has two defense lawyers, and because everything has to be translated, three Somali interpreters are working in shifts to accommodate the many witnesses brought in from abroad. Polyglot murmurs fill the courtroom. Three professional judges are presiding over the case, assisted by a supplementary judge, two public prosecutors, two lay judges, 10 court bailiffs (one for each defendant). When the shipping and travel costs are factored in, the entire proceedings will cost German taxpayers at least half a million euros.

'I Just Wanted to Survive'

The question is: How much sense does it make to conduct a trial against defendants from a country where there is little food, no work, no functioning state and no legal system?

Somalia, a failed state where there are more weapons than food, has been at war with itself for the last 20 years. It is a place of hunger and suffering, where Islamist al-Shabab militias inflict terror and the law of the jungle rules. Civilians are killed seemingly at random, women are raped and children are recruited as child soldiers. Can Western ideas of law and order even be applied to people from such a traumatized country?

This is how Abdiwali sees it: "What I did cannot be justified. But the court should know that I wasn't trying to hijack a ship to get rich. I just wanted to survive."

This too is an issue that the criminal court, under presiding Judge Bernd Steinmetz, will have to address in its search for a fair punishment. In an enlightened legal system, punishment is not an end in itself. Instead, it must fulfill a purpose, such as to deter copycats, strengthen the awareness of norms within society or rehabilitate criminals. But a verdict handed down in Hamburg, no matter how draconian, will have no effect in Somalia. This leaves the purpose of reintegrating the offender into society.

The only question is: Which society?

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KTScholz 04/09/2011
1. great article
This court can produce an idea who the real pirates are and who are poor chaps forced to participate. But in the end, we must get our hands on the guys on land in Somalia and in the rich oil-exporting countries of the Middle East. I think we will meet some well-known fellows who finance drugs and war and Afghanistan, Islamist terror and yes, piracy, in Somalia and possibly also in other regions like the Strait of Malacca. If I was caught as pirate I would also claim to be as innocent as possible, however, the missing butter is a clear case in point that these guys were very hungry. So we could take a more lenient approach towards them and judge them like our homeless people who steal to get caught and spend the winter in prison.
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