Since 1991, Somalia is being ravaged by civil war; the UN classifies the country as a 'failed state' – a country that can't be helped, even by the UN. Similar to Afghanistan, the political and social structures have largely been destroyed. Hundred of thousands Somalians are suffering from hunger, the medical system has collapsed. Frequently military fighting between clan militias breaks out, with a high number of casualties. Al-Shahb are terrorizing large parts of the population. The Somalians are suffering; there is no escape within the country.
The accused were arrested on the 5th April, 2010 on the open sea off the Somali coast, and were transferred via the Netherlands to Hamburg.
From the viewpoint of the defence, the following questions will need to be addressed foremost:
1. According to German law, only persons may be subject to a criminal trial who were over 14 years of age at the time of the offence. With one of the defendants, there are serious doubts about his ability to stand trial because of his age. Criminal proceedings may not be initiated against anyone under the age of criminal responsibility. Determining the age of this defendant is therefore a priority.
2. According to the files, Dutch Marines took the accused from a German Freighter to a Dutch war ship, exercising national law, and held them there for a length of time. A court-issued arrest warrant did not exist. Following that, the accused were held in deportation detainment in the Netherlands; the Dutch state was not willing to start criminal proceedings against them. It will have to be established whether the arrest of the accused by Dutch Marine personnel, the transfer to a Dutch prison and the subsequent deportation to Germany were lawful according to international, German and Dutch law. An unlawful transfer of the accused to Germany could be sufficient reason for a stay of proceedings.
3. There are indications in the files that German authorities were informed about the happenings on the MV 'Taipan' from an early stage, and that they may have been involved significantly in the arrest and transfer of the accused to the Netherlands. The defence is seeking information regarding the level of involvement of German officials and what knowledge these officials had. This will have to be determined.
4. In the case that the guilt of the accused can be proven, the living conditions of each of the accused with regards to the local conditions will have to be established precisely. Only then can their guilt be determined and judged. In conjunction with this, the developments in Somalia since 1991 will have to be examined by means of expert opinions, as well as the question of what impact the poaching of European and Asian fishing fleets and the disposal of toxic waste off the coast of Somalia has had on the lives of the accused.
5. It remains to be seen in how far the Justice Department of Kenya will be willing to be the “sweeper” for the prosecution of Somalians. The EU and other countries are negotiating with Kenya about a financial wish list of the Kenyan government in order to come to an agreement of mutual assistance. The rather random assignment of prosecutions against Somalians in the USA, France, the Netherlands, Kenya and now Hamburg are no solution to the problem. Everyone knows that only a political solution can be effective.
6. This trial will show whether the engagement of the Hamburg Courts with events in the Indian Ocean is appropriate. The terms of general and special prevention, as they are defined in German criminal law are certainly not applicable. A guilty verdict of of this court will certainly not have any effect on piracy in the Indian Ocean. A rehabilitation of the accused in Germany is not likely to be desired, a rehabilitation in their home country is impossible.