Dutch court looks at 'child pirate' case

Child soldiers are a well-known phenomenon. But the child pirate is a relative newcomer among underage combatants.

Germany has asked the Netherlands to hand over ten Somali pirates captured on April 5 by Dutch marines. The Somalis had taken control of the German freighter, Taipan, until they were arrested and taken on board the Dutch frigate, HMS Tromp. The Hamburg prosecutor's office intends to file criminal charges against the pirates, but an Amsterdam court will first decide whether the Somalis, still imprisoned in the Netherlands, can be sent to Germany. A potentially complicating factor is that one of the pirates might be under the minimum age for prosecution.

"My client has been subjected to X-ray testing at Leiden University Medical Centre to determine his age," said lawyer Robert Malewicz. "The results show he is 14 or 15." The X-ray test was carried out at the request of the German authorities, who had been told that the suspect was "obviously only a kid", said Malewicz. The lawyer expressed doubts his client had become a pirate of his own free will.

Under German law, children from the age of 14 can face criminal charges. In principle, the Somali boy could be sent to Germany, as the minimum age for extradition to European countries is 12 in the Netherlands. But Malewicz claims this case is not as simple as it may first seem. According to the lawyer, the boy himself claims to be 13, meaning that the Dutch could hand him over to Germany, but it would still be impossible to prosecute him there. The reliability of X-ray testing to determine children's age has also been called into question.

"With 14-year-old boys you should take into account a margin of 18 months in either direction," said Simon Robben, a paediatric radiologist at Maastricht's academic hospital. "The Somali boy could well be 13."

An X-ray scanner can be used to determine the age of children by examining their hands. "Hands have a lot of bones and therefore a lot of growth plates, which means you can gather a lot of data," said Robben. "But some variety exists in growing children. That margin depends on biological factors, nutrition and disease. If you were to scan the hands of a class full of 14-year-olds, some would have bone structures common to 15-year-olds, others would resemble 13-year-olds. X-ray studies are not a hard science."

It is unlikely the Amsterdam district court will take these lingering doubts into account. The judge will only consider the validity of the German request, and will not look at the merits of the case against the Somalis. These types of requests have almost unfailingly been honoured in the past. "It would then be up to a German judge to determine the Somali boy's real age," a Dutch lawyer familiar with immigration law said. "If it turns out he is 13, the German judge could decide to drop the case, leaving him free to go home or apply for asylum."

If the Somali boy is not handed over to Germany, Dutch authorities could decide to prosecute him themselves. But that can only be decided after the Amsterdam district court's verdict, which is scheduled for June 4.