07 November 2012

All Go for Atalanta

A few comments regarding the verdict.

“I am feeling a great injustice,” said one of the defendants. “The freedom of international maritime trade is affected,” said the judge.

The 'Piracy' trial against 10 Somali that has been dragging on for almost two years finally came to an end on October 19, 2012. After 105 trial days, the verdict came rather suddenly.

Two days earlier, after the defendants had had their 'last words', one of them announced having another witness. The witness was supposed to prove that another defendant who had promoted himself to the status of 'crown witness' was in fact lying. But, as with most applications made by the defence, this one was also declined.

Then, for the sixth time, the judge declared the trial to be over and proceeded to announce the verdict.

He spoke calmly for four hours, after a lengthy break so that the media and the chief prosecutor could attend the performance. Guilty of kidnapping and armed assault on a shipping vessel.

Time and place of the incident: April, 2010, 500 nautical miles off the coast of Somalia on board the German-flagged container ship MV Taipan.

The sentences: two years imprisonment for the under-age defendants, who have already served two years in remand and are therefore free. Between six and seven years for the others. Even the 'crown witness' was given six years, despite the prosecution having asked for a discount of four years for him compared to the others.

The detailed reasoning of the corroborating and the exonerating circumstances for each defendant sounded like a summing up of the criticism that observers had voiced all along: the destruction of fishing grounds by foreign fishing fleets, illegal waste dumping and colonial justice.

The judge even spoke of “subsistence piracy” - a term that certainly was not part of his vocabulary prior to the trial. Many of those present were surprised by the obvious learning curve.

The prison sentences are based on two arguments. Firstly, the assumption that the defendants had not been forced to participate as they had claimed. This argument had been made possible by the court's refusal throughout the trial to hear even a single witness who could have supported the defendants' version of the events. Secondly, the allegedly professional equipment and military style of the attack, supposedly proven by the skiffs and the weapons used, as well as the damage done to the Taipan.

Anyone who has seen the pictures of the accused at the time of their arrest, dressed in flip-flops and t-shirts, will wonder what a non-military group would look like in the eyes of the judge. And to what degree the damage sustained by the Taipan was caused by the covering fire from the Dutch frigate during their operation was never investigated.

There were many aspects where the judge had to admit that even 105 trial dates were not sufficient to reveal the truth. It was never established who entered the Taipan first, who took control of the helm, and who actually fired shots.

However, the judge acknowledged that the accused had not been the ones who had planned the attack and that they had no intention to kill.

The timid attempt of the court to acknowledge the difficulties inherent in applying German judicial concepts to events that took place off the coast of Somalia did not stop it from handing down long prison sentences. Instead, the sentencing sounded in parts like emotional assault.

Two items made it clear how the court was willing to risk re-traumatising the defendants.

One of the defendants had stated his age as 13 years. Had the court accepted this, he could not have been held in custody and he could not have been tried in a criminal court in Germany. Therefore every attempt was made to make him older. His birth certificate, school records and even an affidavit by his own mother were ignored on the basis that Somalia was not a functioning state, therefore it could not have issued valid documents.

Instead, the dubious methods of the Hamburg forensic institute were employed. After his arrival in Hamburg, the accused was taken there to have his age assessed. There was no translator present and his hands and feet were in cuffs. His was gestured to put his hand under an x-ray machine. The young Somali, who had never seen modern medical equipment, assumed that his hand was about to be chopped off.

Another one of the accused has been suffering from mental health issues for a long time. His small son had been kidnapped in Somalia to force repayment of debt. He had claimed that the reason he had participated in the attack on the Taipan had been to earn money to release his son. However, he had not repeated this in his closing words.

For the judge, this meant that his claim was implausible. The accused was expected to repeat the traumatising story in order to be credible. The thought that it may have been unbearable for him to tell the story again did obviously not cross the judge's mind.

All this indicates that the entire programme, including the sentencing had been primarily driven by the desire to publicly justify a multi-million Euro military presence. The most powerful nations do not deploy dozens of well equipped war ships in order to stop a hand full of flip-flop wearing pirates. These ships are deployed to control the flow of goods between the producer and consumer regions.