Since 22nd November 2010, a group of ten Somali men have been on trial in the Hamburg Youth Court. They are facing charges of kidnapping and seizing a ship, charges that carry a maximum of 15 years imprisonment. What they are alleged to have done is board a German ship, the 'Taipan', as it sailed 500 miles off the coast of Somalia last April. The group were captured by a Dutch marine commando and taken to Netherlands and from there they were extradited to Germany to stand trial in Hamburg. Hamburg being the city where the ship's owner's multi-national company is registered.
20 lawyers are representing the ten accused and so far 14 trial dates have been set, meaning that the proceedings are set to last until the end of January 2011. The reason the case is being heard in the youth court is that three of the defendants are not yet adults in German law. The youngest is only 13 years old and cannot be tried under German law.
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| Drawing from the trial - an 'Expert Witness' shows x-rays of the hand of the youngest accused |
400 Years of Legal Piracy
When news of the trial against the ten Somali men in a Hamburg court broke, the media in unison printed the headline “First Piracy Trial in 400 Years”. This refers to the last reported piracy trial around 1600. But most people would associate the term with the local folk hero, the legendary pirate Klaus Störtebeker, who was, according to the folklore, beheaded in 1401. The story goes that a deal was struck with the prosecutor; it was agreed that after his head was chopped off, any of his men that he walked past would be set free. He lined up his men and managed to walk past 11 of them before the executioner tripped him. However, his nemesis saw no reason to stick to a deal with a dead man and all of Störtebeker's accomplices were beheaded as well. So much for doing deals with the authorities. Legend has it that Störtebeker's group were 'Likedeelers' (share-alike), that is, they shared the loot equally, a story which adds to their popularity. Between 1400 and 1600, more than 500 pirates were executed in Hamburg.
Probably none of the details around Störtebeker are true, but they make for a good story and one that lends itself to marketing. Go to to the tourist shops on the waterfront or the “fish market” on Sunday mornings and you can't escape the pirate image on everything from flags to t-shirts to coffee mugs. The popular football club FC St Pauli sells millions in merchandise with skull and cross-bones images, and its official pub is – surprise: the Jolly Roger. The city has erected a Störtebeker memorial and every year there are Störtebeker festivals up and down the coast.
"The Beer of the Righteous" - Available at your local supermarket...
Given this popularity, one could expect a lot of support for the young men who are on trial for piracy in this city, but not so. The reason probably has to do with the fact that the real wealth of the city was built on the pirates' opponents: the merchants, especially the spice traders. To this day, the local term for someone who is filthy rich is 'pepper sack'. They were the ones who developed the 'Hanse', an anti-piracy pact between port cities which operated between the 12th and the 17th century. This seemed necessary because back then it was quite common for the rulers of little fiefdoms to give pirates a license to attack and loot their enemies, guaranteeing the pirates freedom from prosecution and a market to sell the loot.
So while on the one hand the romantic image of the buccaneer is held high, the power has always been with the legal pirates: the exploiters of other continents, the slave traders, the looters of other countries' treasures. None of them were ever executed. And that is where the power is now. Ten young men from one of the poorest countries of the world are being prosecuted by the authorities of one of the richest countries, in order to protect the profit of some of Hamburg's pepper sacks. No room for romantic images here.
What pirates?
It is now well documented that since the start of the civil war in Somalia in 1991, European, Asian and North American trawlers have helped themselves to the Somalian fishing grounds. So much, that the once rich Somalian waters have hardly any fish left. The livelihood of many Somalians has been destroyed. The revenue from the poaching is estimates to be at least US$300 million annually.
"It's almost like a resource swap, Somalis collect up to $100 million a year from pirate ransoms off their coasts and the Europeans and Asians poach around $300 million a year in fish from Somali waters." Peter Lehr, from the University of St. AndrewsA resource swap it may be, but not a very even one. In addition, the UN reports that after the Asian Tsunami at the end of 2004, toxic and radioactive waste was washed up on the Somali coast.
“Initial reports indicate that the tsunami waves broke open containers full of toxic waste and scattered the contents. We are talking about everything from medical waste to chemical waste products,” Nick Nuttal, United Nations Environment Programme (UNEP) spokesman.
Waste that was dumped there in the years before by European companies.
'Anarchy' for whom?
Western political analysts keep re-iterating that the reason why there are so many cases of piracy off the Somalian coast is the absence of a 'proper' government in Somalia. There is no-one there to prosecute them, they say, the 'pirates' can operate freely. They talk about 'anarchy' as if they knew what that meant. To them the 'priate problem' only exists because of the lack of a 'strong' government.
They turn a blind eye on the other groups that are taking advantage of a so-called lack of government. They ignore all the foreign trawlers that invade the Somalian fishing grounds so freely and without fear of retribution. They turn a blind eye on the countries and companies that dump toxic waste. It was precisely the lack of a functioning coast guard that made this possible. The balance of the 'resource swap' clearly shows who the real beneficiaries of the alleged 'anarchy' in Somalia are: the industrialized countries.
One of the hallmarks of capitalism is that there is the potential for profit in everything, so ships being held up by pirates is no exception. A number of security companies have specialized in supplying armed guards for freight ships. And as Greg Bangs from Chubb Insurances says: “So this is a new and rapidly developing insurance market.”
And at the same time that the European and North American governments raise the specter of pirates threatening the lifestyle of their population (“Eventually it could be consumers who will pay the ransom for pirate hijackings.” - Greg Bangs, Chubb Insurances), they write Somalia off as a “failed state”.
Coalition of the willing
It's not as if the EU, the US and other countries aren't doing anything to fight piracy. The question is which piracy. There are a number of multinational Naval Task Forces operating around the Horn of Africa:
- The Combined Task Force (CTF) 150. Originally a US Navy unit, it became a multinational task force of about 15 vessels to fight the 'war on terror' after 9/11. It then became part of “Operation Iraqi Freedom”, i.e. the invasion of Iraq (originally named “Operation Iraqi Liberation”, but the acronym sounded too obvious). Since 2006 it has also been tasked with chasing pirates.
- Since 2009, the CTF 150 has been supported by the CTF 151, whose sole purpose is to hunt down pirates. Up to 20 countries contribute to the fleet.
- Then there is the European Union Naval Force Somalia – Operation ATALANTA with 12 ships from EU countries.
These are all there to hunt down the Somalian ex-fishermen they call pirates. They are not there to interfere with the European pirates who poach the Somalian fish. On the contrary, there are reports that these fleets provide shelter for the poachers, that ordinary Somalian fishing boats have been shot at - presumably because they were mistaken for pirates, when really they were just the competition.
“We've made piracy a community activity”
What all pirates, back in the old days and today, whether they are supported by rich governments or they are poor ex-fishermen, have in common is that they don't operate in isolation. First, they need investors to finance their equipment. Then they need a harbour from which to start and to which they can return. After their return, they need access to a market to sell the loot. And they need a place to hide from prosecution.
For the internationally operating poachers, these conditions are obviously met. The ships are built with EU subsidies. Pretty much every harbour in the world is open to them. The industrialized nations' appetite for fish is immense, just like their output of toxic waste. And no African authority would dare ask for the extradition of a German ship owner.
The other pirates are struggling a bit more, but they are making progress. According to reports by Reuters, a stock exchange system has been set up in Haradheere. A former Pirate says:
"Four months ago, during the monsoon rains, we decided to set up this stock exchange. We started with 15 'maritime companies' and now we are hosting 72. Ten of them have so far been successful at hijacking, The shares are open to all and everybody can take part, whether personally at sea or on land by providing cash, weapons or useful materials ... we've made piracy a community activity." That's a lot more than can be said of the other pirates.
Some Figures:
- Amount of humanitarian aid that Germany gave to Somalia in 2007: €10 million
- Germany's expenditure for operation ATALANTA in 2009: €43 million
- Estimated revenue of non-Somalian fishing fleets in Somalian waters: €250 – 750 million
- Disposal cost per tonne of toxic waste in Europe: €200 – 250
- Disposal cost per tonne of toxic waste in Somalian waters: €2
Disputes about the process of “Age Determination” have a history in Hamburg. The process has been used for decades to ascertain if refugees arriving in Germany are minors (people under the age of 18) or adults. This distinction is important from a legal perspective: minors are granted a number of protections that adults aren't. Minors have a right to attend school and cannot be deported as easily as adults (according to the Dublin II agreement, adult refugees can immediately be deported back to the country of their first entry into the EU). The state has an obligation to care for children, which it doesn't have for adults.
The process of 'age determination' is therefore, in reality, one of 'making people older'.
This is why the Hamburg 'Ausländerbehörde' (Foreigners Authority) has put a lot of effort into establishing methods to determine a person's age. For many years they have been working closely with the Forensic Institute at the University Hospital Eppendorf in Hamburg (UKE), especially with its head, Prof. Püschel.
In the past, the 'age determination' was usually done by an employee of the Foreigners Authority, simply by looking at the person and giving an estimate. In some cases, medical examinations were also done, mostly at the request of the person involved. The resulting birthday is either the 1st of January or the day they entered the country. This way, whole families have their official birthday on the same day. In 2009, the procedure was changed. Since then the young person is automatically sent (or accompanied) to a medical examination at the University Hospital. The examination includes x-rays of of the carpal bones.
This is not without problems itself. According to German law, no-one can be forced to undergo a medical examination, especially not one that is potentially harmful, such as an x-ray. Performing an x-ray examination on a person without medical indication or a relevant court order is strictly speaking a case of assault. However, hardly any of the young persons who are subjected to the procedure know their rights or are even told what is happening to them. And experience shows that those who refuse to have x-rays taken are then immediately classified as adults.
The methods used are also disputed. First of all, refugee organisations argue that the question of whether someone can be treated as an adult or needs the protection of a child depends on a lot of factors, not just the chronological age. Secondly, in 2007, the German Medical Association decided to reject any participation of its members in the process of 'age determination'. Among the reasons was that the method of taking x-rays of the carpal bones was “scientifically highly disputed” and “potentially dangerous”. There are at least two court rulings that found the method inadmissible.
There are also accusations that a particular form of racism is applied: refugees from African countries are found to be adults in 80% of the cases, while the average figure for all refugees is around 50%.
The problem of age determination applies to the youngest of the accused in the trial. His ability to stand trial stands or falls by his age: if the court agrees with his stated age of 13 he cannot be tried at all. If the court decides that he is under 18, the trial has to take place in a youth court. Therefore the prosecution has tried its best to make him older than what he claims to be: they took him to the Forensic Institute without a translator, so he didn't know where he was taken. The so-called 'medical experts' then gestured to him what they wanted him to do – open his mouth, bite on something, lie down or stand up to have his x-rays taken.
This is a young person who is unlikely to have ever encountered the methods or the devices used on that day. He had no idea what an x-ray machine does, there was nobody there who understood his language, so he had no means of objecting to what may well have been an illegal procedure. The same procedure which the Medical Association resolved not to take part in.
And if the statistics are to be believed, being from an African country made his chances even worse. So it is no surprise that the examining doctor found him to be “at least 18”. How convenient for the prosecution.
