Trial in Germany or Kenya?

On March 10, German marines operating under an EU anti-piracy mission captured nine Somalis who had launched a rocket attack on a commercial vessel called MV Courier in the Gulf of Aden.

The vessel is owned by a Hamburg shipping line, but was registered under an Antiguan flag. The captain on that day was Filipino as were most of the 23 crew, all of whom were uninjured in the attack.

Political decision to try pirates in Kenya

There were no German nationals on board, so Berlin decided there was not sufficient national interest for the alleged Somali pirates to be tried in Germany, an argument that Oliver Wallasch, a Frankfurt lawyer representing one of the alleged pirates, says is politically motivated.

"This was not a judicial decision about where to try them. It was purely political," Wallasch told Deutsche Welle.

"Elections are coming up in Germany (in September). The average German won't understand why Somalis captured in international waters should be tried at German taxpayers' expense," he said, adding that the likelihood the suspects would seek political asylum was a further reason for the German government to look for a trial venue outside Germany.

EU-Kenya accord negotiated in a hurry

During the 12 days the Somalis were detained aboard a German frigate, the European Union hurriedly negotiated an agreement with Kenya that allowed the alleged pirates to be prosecuted in Mombasa, according to Wallasch.

"They produced a 450 page file in only 3 or 4 days," he said, referring to the memorandum of understanding, in which Kenya agreed to prosecute pirates detained by warships operating under the EU's Atalanta anti-piracy mission.

Most pirates seizing or attacking vessels in the Gulf of Aden - a major shipping route carrying nearly one-third of the world's crude into the Indian Ocean - are from Somalia, a former Italian colony in the Horn of Africa that is now too politically unstable to stage a proper trial.

Kenyan justice inadequate

The justice system of nearby Kenya however satisfied EU legal requirements, even though human rights advocates have been critical of prison conditions in Mombasa, where the nine alleged pirates have been awaiting their trial, which opened on Wednesday.

Wallasch argues that his client and the other suspects do not stand a chance of a fair trial in Kenya, since there is no presumption of innocence. He also disputes the German government's argument that the conditions in Kenyan prisons meet acceptable European standards.

"They're deplorable," he said, citing reports documenting the lack of hygiene that contribute to the spread of life-threatening diseases. "There is no medical treatment available whatsoever. Food for the inmates does not conform to Islamic requirements. Fifty percent of the inmates have tuberculosis or some contagious skin disease."

Lawsuit against Germany

Wallasch's client, known as Ali Mohamed A.D., filed a civil lawsuit against the German government last week on grounds of inhumane treatment he received since his captors handed him over to Kenyan authorities. Ali Mohamed A.D. is seeking 10,000 euros ($13,300) in damages for his "unlawful" transfer to the country.

The UN convention on the Law of the Sea, a multi-lateral treaty which has been ratified by nearly 160 countries, gives foreign warships the right to prevent, deter and respond to acts of piracy but it's less clear about the issue of where suspected criminals are to be transferred to for trial.

Traditionally piracy is regarded as a crime by all civilized states, and can therefore be prosecuted under the concept of "universal jurisdiction."

Wallasch points out that the German criminal code says that the German legal process can apply for acts committed against German vessels on the high seas. He argues that the Hamburg court is the proper jurisdiction for the trial to take place, since the shipping line Gebrueder Winter which owns the MV Courier is based there.

But as the trial started, the French navy also handed over 11 suspected pirates to authorities in Kenya, where they are being charged with hijacking.

Germany in a no-win situation

Another German lawyer who is a member of the legal team defending another alleged pirate told the Christian Science Monitor that Germany is in a double bind in this case.

Berlin lawyer Andreas Schulz said that, if the German government changes its mind and decides to prosecute the case in a Hamburg court instead, "German foreign policy will be subject to massive criticism."

But if Germany decides to fight the civil lawsuit that Ali Mohamed A.D. filed, "then it proves the agreement between the EU and Kenya is a political and judicial bluff package."

Author: Diana Fong

Editor: Michael Lawton