German Justice Through the Eyes of a Somali Pirate

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30 Sep 2011

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. 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?
The 10 pirates will not be sent back because there is a de facto ban on deportations from Germany to Somalia. "I love my country," says Abdiwali, "but I don't want to die. I wouldn't go back to Somalia for a million dollars."
Even if he wanted to return, how would he travel to the other end of the world as a person without documents or money? There are not even scheduled transportation connections to Somalia. In other words, Abdiwali will be staying in Germany.
Abdiwali is an attractive boy with short-cropped hair, soft facial features and almost no facial hair. At least two of the other defendants are also quite young. This creates another challenge for the court: If its purpose is to demonstrate fairness and the rule of law, its treatment of the young defendants must be exemplary. It cannot treat an adolescent pirate from Somalia worse than it would treat a young offender from Germany.
Attorney Rainer Pohlen insists that, in juvenile law, the emphasis should be on the educational rather than the penal aspect of punishment. Only when all other measures prove to be insufficient can the court impose a custodial sentence. Germany's juvenile criminal law stipulates that the goal of the punishment must be to educate the offender. But Abdiwali must first be able to learn German before he can be educated. In pretrial detention, he has received three hours a month of German instruction.
"What is the point of imprisoning an adolescent who is experiencing a free society for the first time in his life?" asks Pohlen. "No one here will encourage him to hijack a ship. He doesn't have to starve here, and he will have opportunities to develop. There is no reason to assume that he would become criminal in Germany."
Under German juvenile law, remand detention can only be imposed in exceptional cases. But no one was harmed on the Taipan, and Abdiwali says that he did not shoot a weapon. The court would have to prove that he committed another offence.
Integrated into German Society
The youth welfare office has assigned Walter Hubert to serve as Abdiwali's guardian. Hubert has experience with criminal careers. His wards have included thugs and stabbers, "but pretrial detention has been extremely rare." Hubert is convinced that "if Abdiwali were from Hamburg, he wouldn't be there."
Pohlen and his fellow attorney, Markus Blumenstein, have petitioned the court to release Abdiwali from pretrial detention. Hubert has also made it clear to the court that this is what he recommends. He argues that because Abdiwali will not be deported, he will have to become integrated into German society as quickly as possible. The boy seems bright, Hubert argues. He suggests that Abdiwali could be housed in a managed apartment reserved for youths on trial. While the trial is underway, he could spend seven hours a week learning German, go to school and be enrolled in a vocational training program.
It had been touted as the most spectacular case of the year. But now the trial revolves around concepts like accountability, criminal liability and the age at which youth offenders are determined to be legally culpable -- all concepts that mean nothing to the defendants. The Somali language doesn't even have words for many of these ideas.
The scene in courtroom 337 represents a collision between two worlds: that of the German judiciary, in which each sheet of paper is numbered and a code is assigned to each motion, and that of Somali reality. One pirate stated that he was born under a tree, while another could only say that he was born during the rainy season. When asked for the exact date, he said that he didn't know, not even roughly.
Estimating Ages
Besides Abdiwali, four other pirates told the court that they were under 21. One insists that he is only 13, which would make him a child and legally incapable of crime. Ironically, the witness testimony suggests that this alleged 13-year-old used a grenade launcher.
Abdiwali is the only defendant the court has recognized as a minor to date. It hasn't decided yet how it intends to prosecute two others. The court has obtained expert reports in an attempt to estimate their age, but it is not clear how reliable they are. Based on a wrist X-ray, a Dutch expert estimated that the defendant who claims to be 13 is "15 or older." The experts in Hamburg, however, are convinced that he is "18 or older." How should the court proceed?
Older defendants would present less of a challenge to prosecutors. The court spent several days deliberating over whether so-called growth plates, which are found in the bones of children and adolescents but not of adults, could be considered reliable indicators of age. When an expert on wrist bones from the University Medical Center Hamburg-Eppendorf was called to testify, he projected X-rays onto a screen in the courtroom. He proceeded to deliver a lecture on calcification in the sesamoid bone of the thumb, bone stages and skeleton age, percentile curves, sectional imaging and summation methods, the 20-bone method, point values and diagrams -- all based on data obtained from Central Europeans.
But does any of this apply to people of a different ethnicity, not to mention people who were malnourished and had to work hard from an early age?
'I Was Scared to Death'
For Abdiwali, the testimony of the medical professors solved another mystery. After his arrival in Germany, he was taken to a large building, where he saw people walking around in white coats. There was no interpreter, and he didn't know why he was there. A man gave him instructions using hand gestures: undress, naked. Then the man touched his body and looked at his genitalia. "I was scared to death," says Abdiwali. "I was submissive, and I did everything they wanted."
The images of Abu Ghraib had also been seen in Somalia. Abdiwali thought to himself: Soon they'll show up with dogs, then I'll get the electroshocks and then they'll execute me. When he was told to place his left hand on a metal plate, he thought: Now they're going to cut off my hand! Instead, he only heard a humming noise and a click.
Then he was told to place his head in a large cradle. They pushed something hard between his teeth, and he thought: They're going to crush my skull like a nut. More humming and clicking. Then they brought him back to the prison.
Only when Abdiwali saw the X-rays in the courtroom did he understand that it was the same thing they do with tuberculosis patients in Somalia. He had heard about such images, but he had never seen one. Now he knew that he had been in a hospital.
It had never occurred to anyone to explain any of this to him.
It's a cold February day, and Pohlen and an interpreter have driven out to Hamburg's Hahnöfersand juvenile detention center. Abdiwali comes in from outside, where he was shoveling snow and raking leaves. He likes the work. He is wearing a green parka, blue tracksuit pants and heavy lace-up shoes that are still coated in mud.
Pohlen, 57, is from the western city of Mönchengladbach and has the cheerful disposition considered typical of people from the Rhine area. With his shoulder-length black hair, he looks not unlike a pirate himself. He pulls a chocolate bar out of his bag and says: "Well, my boy, how are you?"
"I was so excited that you were coming that I didn't sleep for four days," says Abdiwali. He is so shy that he almost speaks in a whisper. "I'm so lonely here. No one comes to visit me." He is desperate for human contact, maybe even a foster family. "Can you do something?" he asks. "Please, show some compassion!"
Enforcing the Sentence
He is occasionally allowed to call his family in Somalia, and when he speaks with his brothers and sisters, there are always tears. They pray for him, but they don't understand what is happening to him, and he can't explain it to them, either.
For the last seven nights, he has had nightmares in which Judge Steinmetz stabs him in the stomach with a knife. Pohlen pats him on the shoulder, half comforting and half in amusement, and tells him that things won't get that bad.
"I think he's serious," says the interpreter, who left Somalia more than 20 years ago. When Pohlen asks the boy what he means, it turns out that Abdiwali believes that the uniformed bailiffs are soldiers and the people in the visitors' gallery are members of the secret police. He can't tell the many people in black robes apart. He is convinced that the prosecutor, who has such a low opinion of him, will pronounce the verdict and that he will be tortured. He thinks that, in the end, the man in charge, who sits in the middle at the front of the room and asks so many questions, will be the one to enforce the sentence.
Abdiwali believes that Steinmetz is his executioner.
'No Death Penalty'
Dr. Bernd Steinmetz, 52, the presiding judge of the 3rd Criminal Division, is a somewhat short, friendly man with an alert gaze, gray hair and delicate facial features. He comes across as being cultivated, respectable and polite, almost excessively so. He treats everyone the same, whether it's the public prosecutor, the frigate captain or the defendants, who sit in front of him wearing prison-issue jackets and trousers that are much too big for them.
Steinmetz has meticulously prepared himself for this trial, which is the biggest case of his career. The white bowtie worn by judges suits him. He looks like he could just as well be a violinist in a string quartet or a Latin teacher. Someone would have to come from a very different world indeed to imagine that he could be an executioner.
Pohlen is flabbergasted.
"But you must know by now that there is no death penalty in Germany?"
"I don't know that."
"No one can be executed in this country," Pohlen explains. "Capital punishment was abolished 60 years ago. And torture is forbidden. So is cutting off hands."
Explaining the Rule of Law
Abdiwali nods, but he doesn't look very convinced. He was told that pirates are beheaded in Hamburg. "That was Störtebeker," says Pohlen, referring to a legendary German pirate from the Middle Ages. "But that was 600 years ago. Now we live in a modern democracy based on the rule of law."
"What is the rule of law? And what is the court?" Abdiwali asks. "Who is responsible? I don't understand any of this. Can you explain it to me?"
Pohlen explains it to Abdiwali in as simple terms as possible. He says that the court is part of the state's justice system, and that the people at the long table in the front are the court. He explains the public prosecutor's job, how the court arrives at a verdict at the end of a trial and what kind of punishment he can expect. "So, let's assume that the court were to sentence you to three years and six months. Then they would deduct the time you already served in pretrial detention, and you would get out after two-thirds of the sentence, which would be…"
The interpreter interrupts Pohlen. "Just a moment," he says. "First I have to explain to him what two-thirds means. He doesn't understand that." And while the interpreter uses his fingers to explain the basic principles of fractions, Pohlen thinks about what else the boy might not understand in court.
As Pohlen is leaving, Abdiwali says to him: "You are father and brother to me. Your rule of law is a miracle on earth. All the expense, and two lawyers fighting just for me, and I don't have to pay any money at all! I have rights -- I didn't know that. I am grateful that I have the chance to learn this. It all seems like a fairy tale to me."
And then he says to the interpreter: "But one thing is still a mystery to me: What do they get out of it?"
No Welfare State in Somalia
It's obvious that it isn't just about noble legal principles when a German public prosecutor's office prosecutes 10 starving men from Africa, Pohlen says on the drive back. With more than 30,000 ships passing through the Gulf of Aden every year, the pirates have tapped into a vein that is vital to the industrialized world. "This is about rich against poor, and about securing trade routes, which Horst Köhler talked about when he was still president," says Pohlen, referring to controversial comments by Köhler that were heavily criticized in Germany, leading the then-president to resign.
On the first day of the trial, in November, protesters in front of the court building had held up sheets with slogans like "Neo-colonial exploitation of Africa" written on them. Inside, defense attorneys speaking to the international press made a statement about the suffering of the Somali people. The 10 defendants were dressed too lightly for the cold, and they seemed intimidated. Some had explained that they were fishermen, few of them could read and write, and some have wives and children who are now even poorer than before. There is no such thing as welfare in Somalia.
Though not a fan of making political statements in court, Pohlen does quote a saying: "If you do not share your wealth with the poor, they will share their poverty with you." The poor on the Somali coast see piracy as compensation for past injustices. For years, foreign fleets depleted their fishing grounds, while others dumped their toxic wastes in their waters. Eventually the fishermen hit upon the idea of getting something back.
What began as a politically motivated David-versus-Goliath campaign has grown into a criminal industry that supports entire villages. There is said to be a stock exchange of sorts in the Somali town of Haradheere, a notorious pirate stronghold, for investors in piracy. Millions in ransom money are sent to Nairobi and Dubai, where the pirates' backers are. "The 10 men who are on trial here are poor suckers," says Pohlen.
The international community could take on the job of cleaning up the Somali coastal fishing grounds and providing legal sources of income for Somali youth. Ideally, the Somalis should be given assistance in establishing law and order in their own country, and training should be provided for judges, defense attorneys and prison wardens. But, at the moment, this is nothing but a wish list.
One of the witnesses, Taipan captain Dierk Eggers, said as much in his testimony. Piracy, according to Eggers, is a form of violence that has to do with politics -- or, rather, as he puts it, "with the absence of politics."
The video that the Dutch made of the liberation of the Taipan is shown, and Eggers is asked to comment. He is an older man with his white hair combed back from a weather-beaten face. He has been sailing the world's oceans for the last 30 years. This was not his first encounter with pirates.
The crew was not afraid, says Eggers, even though the bullets had punctured the steel bulkheads like butter. They felt secure in the ship's hidden safe room, and they were pretty sure that the Dutch would come and rescue them. "But we were also very lucky."
The video shows thin men in shorts and flip-flops coming out of their hiding places with their hands up. They hadn't tried to resist. One man had hidden in the bathroom, while several were in the dining room. They must have been starving. Eggers had had two pounds of butter in storage. After the rescue, all that was left was the paper.
Abdiwali was very impressed by the captain's testimony. He felt that the old man was very nice, and he hadn't said anything bad about the pirates. When Eggers was finished with his testimony, Abdiwali asked to be allowed to speak. "I am sorry that I was involved in the attack," he said. "I want to personally apologize for the attack on Captain Eggers' ship."
Eggers accepted the apology, appearing moved.
Motivated by Hunger
In the next hearing, Abdiwali explained to the court how he became a pirate. His parents died when he was four, he said, and he grew up with his older brothers. Two sisters died in a grenade attack. He attended a Koran school for two months, but then the money ran out. He taught himself to read and write. The family lived in a hut with a corrugated metal roof and slept on pieces of cardboard. Sometimes they had nothing to eat for days at a time.
Abdiwali said that he had to begin fending for himself at the age of 10. At 13, he worked as a night watchman in the harbor, where he was paid $1. He learned to drive a fishing boat. They would spend weeks at sea, and when they returned his wages were barely enough to survive for the next week. One day a man offered him $500 for a better job.
It wasn't until he was on board the dhow that they told him that a ship was to be hijacked. Abdiwali said that he felt queasy when the weapons were loaded onto the ship, but that they told him that the arms were only there so that they could scare the crew. He insisted that he didn't touch any of the weapons, and that he only helped the man driving the skiff. Hunger and poverty, he said, had motivated him to commit this crime, and he never asked himself whether he wanted to be part of it -- it had all seemed self-evident to him.
Abdiwali felt relieved after making his statement.
'I Haven't Eaten in Days'
A few days later, the court rejected his defense attorneys' petition to release him from custody. Pohlen had argued that his client had acted out of necessity, and that he had only been an accessory to the crime. In light of his past and his age, Pohlen told the court, Abdiwali had lacked the maturity and sense of responsibility to understand his actions. Besides, Pohlen said, even though the attack was dangerous, it had only resulted in property damage.
The public prosecutor argued that acting from personal necessity did not offset the extent of Abdiwali's culpability. The educational purpose of youth custody could certainly be qualified, he added, but the penalty could, as an exception, be based on the idea of atonement.
"Someone who has to rely on his own devices at an early age can also mature earlier than usual," said the presiding judge. Besides, he added, it was also known in Somalia that robbery and extortion are crimes. A serious youth custody verdict could be expected, said the judge. And then the unfamiliar words rained down on Abdiwali from the judges' table: extent of guilt, felony, quasi-military, highly dangerous actions, risk of flight.
Abdiwali has heard enough. He takes off the headphones, buries his face in his arms and starts to cry. After a while he says, through the interpreter: "I have lost hope. I haven't eaten in days." The words "hunger strike" are mentioned.
He tells his attorneys that he doesn't want to live anymore. He says that he met someone in pretrial detention who was released even though he had stabbed someone else. "I haven't done anything to anyone, and I apologized. But they're keeping me in. I think your justice system has weaknesses. It is not fair."
"Oh, come on!" says Pohlen in his paternal fashion. "You're not entirely innocent, you know. And if the al-Shabab militias had caught you, you wouldn't have your head anymore!"
A Slave under the Somali System
Reports of new pirate attacks have been appearing weekly during the course of the trial. In the past, hostages were usually freed, but now several have been killed, both on a German freighter and an American sailing yacht.
This is not good for the mood in the courtroom. Now you can see what happens when no help arrives, the public prosecutor said. Abdiwali and the others immediately began to fear that the Germans could decide to take horrible revenge on them. When the presiding judge learned of their fears, he turned to the defendants and said: "You are not under any danger to life and limb. This sort of thing doesn't happen in the German legal system."
It was a good day for Abdiwali. "Now I know that Dr. Steinmetz has no bad intentions," he says.
There has also been a promising development. Pohlen has convinced the court to allow a pediatric psychiatrist to form an opinion of Abdiwali's ability to make responsible decisions. In doing so, the psychiatrist is expected to consider Abdiwali's position within the hierarchy of clans and castes in Somalia, which still divides people into people of noble birth and outcasts. No one had mentioned this in court because it hadn't occurred to anyone, not even Abdiwali, that it could be important.
"I'm from the Tumal," he explains. "As a Tumal, you are like a slave. I cannot live freely and do as I please. I belong to the Hawiye." The Hawiye are the dominant clan and his masters, he says, the people he depended on for work as a fishermen or a security guard. They gave him food, cigarettes and his daily ration of khat, a drug made with leaves that kept him awake and dispelled his fears. The man who had hired him to help hijack the ship was a Hawiye. "A Hawiye would not use the same dish that I had eaten from because I am unclean, like a dog. A Hawiye would not shake my hand."
Abdiwali has noticed that, in Germany, everyone shakes his hand.
'I Want to Go to School and Learn'
Abdiwali reasons that the Germans are not like the people in Somalia because they are educated. "Education is everything! When I get out of here, I want to go to school and learn. Maybe one day I can work as a teacher and help rebuild my country." The government, Pohlen had said, is even going to give him an apartment and enough to eat.
"I can't believe any of this is happening," says Abdiwali. "I feel as if I were waking up from a dream. I don't know: Is it true, is it not true?" He has a television set in his cell, and the news show "Hamburg Journal" is his favorite program. It shows him how people live outside the prison, how they go to shops, museums, hospitals, kindergartens and universities. He is learning German by watching television.
When asked what he had for lunch today, Abdiwali replies, in German: "Potatoes and gravy." He can also say: "Hello. Thank you. How are you? What is your name? I love Germany."
There could be another life for him out there in the city they show on television. "Who knows? Maybe it was good luck that they caught me and brought me here," he says.
"Not yet," he adds, "but maybe soon."
Source: Spiegel