Prosecuting Captured Somali Pirates Poses Challenges

MOMBASA, Kenya – The eight men stood in the courtroom dock and spoke among themselves. One slouched forward — a clear display of insolence in this former British colony, where suspected criminals are expected to stand upright.

Catherine Mwangi, the High Court judge presiding over their trial, was unamused. Twice she told the suspects' translator: “These guys must shut up and listen.”

But her complaints were met with a wave of laughter from spectators in the packed, sweltering courtroom, where temperatures hovered over 90 degrees. The suspects, after all, were pirates. And even as they face life sentences, they show respect for no one.

Piracy has become a symbol of Somalia's lawlessness. For many young Somali men, it is a path to quick riches. Mansions have sprouted up in the Somali towns that host them, with luxury vehicles plying otherwise unused roads. This year alone, Somali pirates have captured 80 ships, most recently a Saudi-owner tanker, the Sirius Star, carrying $100 million worth of oil.

These eight Somalis were intercepted off the coast of Somalia on Nov. 11 as they allegedly attacked a Danish fishing boat. Two pirates were killed in a firefight with sailors aboard a British naval vessel. High-powered weaponry, including automatic machine guns and rocket-propelled grenades, was found aboard the pirate ship.

Once in custody, the Somalis said they were fishermen, and it was unclear just what to do with them.

Somalia, their home country, has not had a functioning judiciary since 1991 and is controlled by a weak transitional government. And even if there were rule of law there, pirates wield influence over the country’s nominal government, as well as over Islamist insurgent groups opposed to the government.

Under anti-piracy laws established by the United Nations, countries can lawfully use whatever "necessary means" to stop piracy in international waters. The U.N. Security Council recognized Somali waters as the "high seas" after passing resolutions on anti-piracy cooperation to help Somalia's weak government, which has been unable to stop the hijacking of World Food Program ships attempting to deliver aid to the country.

The British Navy brought the eight pirates to Mombasa after Kenya agreed to prosecute the case as part of the international anti-piracy agreements.

Western countries have balked at the prospect of hosting pirates, even in prison. Courtrooms in Kenya, which borders Somalia to the south, are increasingly being seen as possible forums for bringing pirates to justice.

Monday they had a courtroom hearing in what marks the first attempt at prosecuting suspected Somali pirates here.

The case, a trial run of this approach, is already posing challenges. The suspects have no documents verifying their identities, and they speak neither English nor Swahili, the languages in which Monday’s court proceedings were transacted. It is unclear whether they even understood the Somali dialect spoken by their court-assigned translator.

Somalia’s lawlessness has allowed pirates to operate with a free hand. But at court, the suspects stand to benefit from the legal protections that come with an English-style trial.

Jared Magolo, a prominent Mombasa attorney, told FOXNews.com after the hearing that he was retained by “someone sent from Dubai,” though he declined to detail his fees or the exact identity of who was paying them.

He maintained that Kenya has no jurisdiction over the case. The Nairobi Star, an influential newspaper, recently published a staff editorial arguing the same. If Magolo can convince a panel of appellate judges of this argument, then the eight men will be set free, even if they are convicted of piracy at the trial.

He accused prison officials of “effectively torturing” his clients. He said they had been kept in handcuffs throughout their incarceration and were thus barred from praying, and that they had been denied a change of clothing.

Mwangi, the judge, mocked the suggestion of torture and noted that the suspects, dressed in prison uniforms, had no visible wounds. “Oh, I can see they're really bleeding, eh?” she said.

Magolo said he had been denied access to his clients, that he was turned away at the prison by guards who cited “security matters.” Mwangi said she would issue a written order granting him and a Somali translator access to the suspects.

The judge said she plans on a quick trial, which will begin Dec. 11 and is likely run into next year. The prosecution so far has lined up 10 witnesses, including British naval officers, and will present as evidence the weapons found on board the Yemen-flagged dhow the pirates sailed.

The judge rejected their application for bail, saying, “I have not been given a single reason by the defense why the accused would not attempt to abscond.” They will be incarcerated for the duration of their trial.

Under Kenyan law, persons convicted of piracy face a maximum sentence of life in prison.