But a German-led legal defense team is setting out to fight an altogether different battle: how best to defend them.
A team of seven attorneys specializing in international criminal law is taking up the cause of nine Somali pirates accused of hijacking the MV Courier, a German freighter, on March 3 near the coast of Yemen. [Editor’s note: The original version misstated the number of pirates.]
The suspected pirates are being held in Kenya and awaiting the start of a criminal trial there next week. The defense team, which is working pro bono, will land in Kenya on Sunday and is expected to make the case in front of a judge that the men should stand trial in Germany.
Pirate trials are still the exception rather than the rule, and objections such as this over jurisdiction suggests the challenges confronting the European Union and United States, who are searching for a uniform legal framework by which to hold criminals accountable after they are apprehended in international waters.
Lawyers say fair trial not possible in Kenya
The nine Somalis accused in the Courier incident are in Kenya because of a memorandum of understanding signed recently between the EU and the East African nation. Although other European countries, notably France and the Netherlands, are pushing to try accused pirates in their own courts, Germany is not making similar demands.
With the EU leading the efforts to prosecute Somali pirates, it might seem strange that lawyers from its own ranks are prepared to press the pirates' case. Yet the attorneys say it is a matter of human rights: Their aim is to guarantee the accused get a fair trial – and that cannot happen in Kenya, where a presumption of innocence does not exist, according to Oliver Wallasch.
Mr. Wallasch, one of the attorneys leading the defense team and the founder of the European Criminal Lawyers Advisory Panel, filed a civil lawsuit against the German government on Tuesday alleging it violated the human rights of Ali Mohamed aw-Dahir, one of the men facing trial in Kenya.
According to the 12-page complaint, the German government agreed to have the accused pirates moved to the Shimo La Tewa prison in Kenya knowing full well the deplorable conditions at the facility, which houses 3,500 inmates in overpopulated cells and where prisoners can contract deadly health infections in as little as six weeks. The German government "consciously and deliberately gave [Mr. Dahir] into danger of death or health risk," the complaint reads.
"It was a political decision to ask Kenya to have jurisdiction in this case, and you often have something like a smelly fish when political decisions are made," says Wallasch. "Kenya is not involved at all."
Does German law apply?
It is unlikely that a civil case against the German government will postpone criminal proceedings in Kenya, which are expected to last six months. But it could cut through the EU-Kenya agreement and compel legal authorities to ultimately change the trial's venue to Germany, Wallasch says.
Right now, the lawyers do not even know whether Kenya's courts will allow them to represent the accused pirates in the criminal case, though they are standing by to do just that, Wallasch says.
Three of the accused, including Dahir, maintain they were simply catching a ride to Yemen and did not know they were in the company of pirates. The case is complicated by the fact that the captain of the MV Courier did not provide a witness account of the incident to the German Navy.
The question remains to what extent does German law govern in this case. The lawyers say quite a lot: A section of the country's criminal code outlines that the German legal process applies for acts committed against German air and sea traffic.
The public prosecution office in Hamburg, the home of the German company that owns the MV Courier, has already prepared a 500-page brief in the case and argues it has jurisdiction in the matter.
"The public prosecution in Hamburg is well prepared. The case in Germany is well prepared. If these men were allowed to go to Hamburg, there is a good chance that they would have a fair trial," Wallasch says.
If it fights the civil lawsuit, "then it proves the agreement between the EU and Kenya is a political and judicial bluff package," Mr. Schulz says. If the government changes its mind, "German foreign policy will be subject to massive criticism."
On Wednesday, a spokesman for the government told the Sueddeutsche Zeitung newspaper, of Munich, that accusations of human rights abuses were baseless and that "the judicial process in Kenya is being followed by German observers as well."
One observer, Jürgen Trittin, of the Green Party, is expected to fly to Kenya next week.