- The Washington Times - Friday, April 17, 2009

NAIROBI, KENYA (AP) - The scrawny teenage pirate stormed the Maersk Alabama hoping for a share of a $3 million ransom. He was attacked by its sailors, stabbed in the hand and tied up, and later arrested by the U.S. Navy.

The wound probably saved the life of Abduhl Wal-i-Musi, who was taken aboard the USS Bainbridge for medical treatment before snipers killed his three comrades holding American skipper Richard Phillips hostage in a lifeboat.

Now Wal-i-Musi awaits a flight to the United States for trial _ a rare instance of a piracy case advancing through the justice system.

In fact, most pirates plucked from the seas by warships of differenct countries are simply set free because of the many pitfalls along the path to prosecution.

“Prosecuting detained pirates _ that is simply not our business,” said Cmdr. Achim Winkler of a European Union flotilla that has nine warships and three maritime patrol planes guarding shipping lanes in the Gulf of Aden.

As the world grapples with the scourge of piracy in the busy waters off the Horn of Africa, the United States and other countries are calling for the bandits to be held accountable. Some even are considering a special tribunal.

A Kenya-based diplomat of another country that patrols those waters says putting pirates on trial is “still a lot of hassle.” Pirate boats are often destroyed to prevent the pirates from getting back to sea, but unless they’re caught in the act his navy’s policy is to set the marauders free.

“While nobody would advocate the ancient naval tradition of just making them walk the gangplank, equipment like GPSes, weapons (and) ladders are often just tossed overboard and the pirates let go,” said the diplomat, who asked that his name not be used because he is not authorized to speak to reporters.

What happens to captured pirates often depends on the nationalities of their victims and the navy that detained them. French soldiers take pirates who have attacked French citizens to Paris; pirates who have attacked other nations are hauled to Kenya, such as the 11 seized when the French navy found them stalking a Lebanese-owned ship this week. India took 24 suspects to Yemen, since half were from there.

The Dutch took five suspects to Rotterdam, where they probably will be tried next month under a 17th century law against “sea robbery” in the attack of the Dutch Antilles-flagged ship Samanyulo in January.

The crew fired a flare that set the pirates’ speedboat on fire. They jumped into the sea, and the Danish navy picked them up and sank what was left of the boat. After agreeing to take the case, Dutch investigators interviewed sailors on the freighter to make the case against the pirates.

Among the difficulties facing prosecutors is assembling witnesses scattered across the globe and finding translators in various languages. Other countries are wary of hauling in pirates for trial for fear of being saddled with them after they serve their prison terms.

Some European nations dump detained pirates back into lawless Somalia, said Pottengal Mukundan, director of the Commercial Crimes Services of the International Maritime Bureau.

“I think EU countries are concerned that if the pirates are convicted and spend time in prison, when they finish their sentence, they may not be able to send them back to Somalia,” Mukundan said.

Kenya is the most popular destination for suspects. The East African nation bordering Somalia has agreements with the U.S., EU and Britain to prosecute Somali pirates, leading to a slew of court cases in the southern port of Mombasa.

But diplomats privately fear that if every suspect is brought to Kenya, it could take years to prosecute because of a backlog of 800,000 cases of all kinds in the country’s courts. Some suspects must spend a year or more in jail just to get a hearing.

Kenya’s Foreign Ministry said Friday it is studying a proposal to establish a special tribunal but likely would expect richer countries to foot the bills. Mark Ellis, executive director of the International Bar Association, said Kenya would almost certainly need help.

“I don’t think the hurdles are insurmountable, but it will take a much more structured and aggressive approach by the international community to assist Kenya in undertaking this type of trial,” Ellis said.

Britain, the U.S., Germany and France have brought suspects to Kenya, which convicted 10 pirates arrested by U.S. sailors last year. Each is serving a sentence of seven years _ the maximum.

Francis Kadima, a Kenyan who represents seven Somalis accused of attacking a Norwegian-owned vessel in February, said his clients are innocent fishermen who will challenge the legality of being brought to Kenya.

“That agreement is not legally binding” because it has not been ratified by Kenya’s parliament, he said, adding: “We will also raise the issue of jurisdiction, since they were not arrested in Kenyan waters.”

Kenneth Randall, dean of the University of Alabama School of Law, said Kenyan courts may be able to invoke the concept of universal jurisdiction used to justify prosecuting slavers, torturers and perpetrators of other heinous crimes.

“Piracy was the original crime that was subject to universal jurisdiction,” he said. “Pirates were viewed as stateless, piracy was committed on the high seas where no one nation state has jurisdiction, and they committed heinous acts that disrupted world commerce at a time when it was mainly conducted on the high seas.”

Jurisdiction questions can lead to problems: The U.S. Navy once held a suspect on a ship for seven months largely due to confusion over where he would be prosecuted.

Wal-i-Musi could have been sent to Kenya, but the U.S. decision to prosecute him in New York could be a sign of Washington’s determination to bring pirates to justice.

U.S. Secretary of State Hillary Rodham Clinton emphasized that determination Wednesday when she unveiled an anti-piracy strategy that includes trying to seize their assets.

“These pirates are criminals. They are armed gangs on the sea. And those plotting attacks must be stopped,” she said.

A U.S. official said Wal-i-Musi will face trial in New York, where the FBI has a history of handling African cases involving major crimes against Americans, including the 1998 al-Qaida bombings of U.S. embassies in Kenya and Tanzania. The official spoke on condition of anonymity because he is not authorized to talk about an ongoing investigation.

Farah Yara of the pirate haven of Haradhere, Somalia, told The Associated Press he knows Wal-i-Musi and described him as just another youngster from a fishing family “duped into going to sea to hijack ships.”

Prosecutors have not yet said what charges Wal-i-Musi will face. The United States has old piracy laws on its books and new terrorism statutes that could be used, said attorney Matthew Thomas, who trains the U.S. Navy in commercial maritime law.

Michael Passman, a Chicago lawyer who has written about piracy law, said it has been more than 100 years since the United States used the statutes, and prosecutors could use other federal laws against crimes at sea.

But, he said, “this is a case where the traditional piracy statute fits so well what has been alleged against this individual.”

He said the United States also might want to set a precedent to show pirates they face stern penalties and to serve as an example to other nations.

The law is written in a way that makes it sound as if life in prison is the only option for a piracy conviction, Passman said. Piracy was punished by death in the 1700s and early 1800s, but since at least 1819, it has carried a life sentence, he said.

John J. Byrnes, head of the Manhattan office of the Federal Defenders of New York, said it has more than a dozen lawyers to handle piracy cases just as it handled terrorism and fraud cases.

“We’re aware of this case in the sense we’ve heard it may come in early next week,” he said, adding that based on reports that Wal-i-Musi is a teenager, age could be a factor.

Byrnes was one of two lawyers who represented Mohammad Salameh, the first defendant charged in the 1993 bombing of the World Trade Center. Salameh is serving life in prison.


Associated Press writers contributing to this report include Michelle Faul and Malkhadir M. Muhumed in Nairobi, Larry Neumeister in New York, Jennifer Barchfield in Paris and Devlin Barrett in Washington.

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