Terror

by Ferdinand von Schirach

  Presiding Judge From the witness, Lt Col Lauterbach?

  Defendant Yes, that’s right. So there was nothing else we could do other than fly alongside the plane. We repeatedly attempted to make contact. By radio and visually. But without success.

  Presiding Judge The witness Lt Col Lauterbach told us that you had questioned the order not to shoot.

  Defendant That is correct. I checked twice with the command centre to see whether the order to shoot had not been given after all. I knew that the Lufthansa aircraft was only a few minutes away from the stadium.

  Presiding Judge What did you think in that moment?

  Defendant That’s hard to explain.

  Presiding Judge We have time. Please, try.

  Defendant You have to understand that our entire training, the complicated selection procedures, the courses, the years of physical conditioning, the appraisals by our superiors and so forth, all of that has just one objective: in the most difficult and testing circumstances we have to hold our nerve. Our job is to assess danger quickly and precisely. That is what we’re trained to do.

  Presiding Judge I see.

  Defendant And while we were flying alongside the Lufthansa aircraft, the worst situation which we can encounter in peacetime occurred. I know every one of us has thought about it hundreds of times. We’ve discussed amongst ourselves, with our families, our friends, our superiors, our law lecturers. Of course, every pilot hopes he’s never going to find himself in this situation.

  Presiding Judge It’s not a combat mission.

  Defendant That’s just it. The people on board that Lufthansa plane are civilians, we’re supposed to be protecting them.

  Presiding Judge But what did you think?

  Defendant I considered whether I was disobeying an order. To save tens of thousands of people by killing hundreds of them. If you’re asking me what was actually going through my mind in that second …

  Presiding Judge Yes?

  Defendant (more quietly) I thought about my wife and my son. Innards.

  Presiding Judge Innards?

  Defendant That’s my word for it.

  Presiding Judge Aha.

  Defendant I thought about death. That everything in my life was now going to change …

  That’s what I thought.

  Presiding Judge Very well. What did you do?

  Defendant I slipped back behind the Lufthansa plane. So we were now flying a little behind the civilian aircraft, slightly above it. Then I let go of the Sidewinder. I can’t remember shouting into the microphone. I only heard that afterwards. My lawyer played me the tape.

  It’s strange you forget something like that.

  Presiding Judge When you fired – that is, when you activated the Sidewinder – did you know what the consequences would be?

  Defendant Did I know I’d be put in prison?

  Presiding Judge No. Was it clear to you that by shooting you would destroy the aircraft and kill the passengers?

  Defendant Of course.

  Presiding Judge What happened exactly?

  Defendant When I fired?

  Presiding Judge Yes, what happened to the aeroplane?

  Defendant The Sidewinder’s infrared heat-seeker locked on to the right engine of the civilian aircraft. That is where the missile hit. Precisely. The kerosene in the wing exploded. This made the wing detach itself from the fuselage. Along with the wing it also lost the air current.

  Presiding Judge And then?

  Defendant The aircraft turned.

  Presiding Judge (surprised) It flew backwards?

  Defendant No, it rotated. It was now flying on its back, so to speak. There’s a simple technical explanation. The air current is lost and …

  Presiding Judge Alright. And then?

  Defendant The heat of the explosion had melted off sections of the plane’s outer skin. Four passengers slipped out through these openings.

  Presiding Judge Precisely four?

  Defendant At least four. That’s how many I could see. And luggage, bags, that sort of thing. The interior of the aircraft was on fire. The plastic melted. Then the second wing exploded and the plane crashed.

  Presiding Judge What did you do?

  Defendant We turned around and flew back to base. There we were arrested.

  Presiding Judge We?

  Defendant Initially, yes, my fellow officer too. I immediately made a statement.

  Presiding Judge Good. Let’s go back again. Were you able to see the terrorist at all? Could you tell what he was doing?

  Defendant No.

  Presiding Judge And the other passengers? What did you see?

  Defendant What am I supposed to have seen?

  Presiding Judge Did the passengers try to enter the cockpit, for example?

  Defendant No.

  Presiding Judge Did you see whether passengers were standing in the aisle?

  Defendant No, I did not see that.

  Presiding Judge We know from studying the Black Box – Volume 93, page 122 and following – that the passengers were attempting to break into the cockpit when the plane exploded.

  Defendant I didn’t see that.

  Presiding Judge You acted against the explicit order of your superior.

  Defendant Yes, I did.

  Presiding Judge Why?

  Defendant Because I thought it was right. I wasn’t prepared to let 70,000 people die.

  Presiding Judge (turns to the State Prosecutor) Are there any other questions for Mr Koch? Prosecutor?

  State Prosecutor Following on from the Presiding Judge’s question: would you have been able to see whether the passengers were attempting to enter the cockpit?

  Defendant The plane was on fire.

  State Prosecutor Yes?

  Defendant I couldn’t see anything, everything was full of smoke.

  State Prosecutor So you weren’t able to see whether the people thrown out of the plane had been sitting in their seats or standing in the aisle or had been in the process of trying to enter the cockpit?

  Defendant No.

  Defence Counsel Prosecutor, I really don’t know where these questions are meant to lead.

  State Prosecutor Are you objecting to my question?

  Defence Counsel I simply want to know what it is you are asking.

  State Prosecutor Either make a formal objection to my question or don’t interrupt me any more.

  Presiding Judge Please, please. This is a stressful trial.

  Do you want to object to the State Prosecutor’s question? At the moment I can’t see any reason …

  Defence Counsel Fine.

  State Prosecutor So you can’t rule it out?

  Defendant What?

  State Prosecutor That the passengers had broken into the cockpit at the moment you fired.

  Defendant I can’t rule it out.

  State Prosecutor You can’t rule it out. Jolly good.

  On another matter …

  Defence Counsel What do you mean by ‘jolly good’? Are we going to comment on all the defendant’s answers now?

  State Prosecutor Your Honour, please. I can’t exercise my right of cross-examination like this.

  Presiding Judge Counsel, I must agree with the Prosecutor. If you wish to object to something please do so formally. If not, then please make no further interruption to her questioning.

  The Defence Counsel shakes his head but raises no further protest.

  State Prosecutor Mr Koch, I too have read your personal file. During your training you took a particular interest in matters of law. In light of this would you be prepared to give more precise reasons for your ruling?

  Defendant I gave a lecture to young fighter pilots on the Federal Constitutional Court’s ruling. I assume it’s in the file.

  State Prosecutor Yes, that’s right, there is a note of it. Then I ask you what was your understanding of this ruling. What legal conclusions did you …

  Presiding Judge Prosecutor, now I have to interrupt. You know th
at we do not debate matters of law with the defendant. We investigate the facts. And they are the basis on which we shall come to a ruling. That was also the reason why I did not ask Mr Koch any further questions …

  Defence Counsel Excuse me please. Not only do I regard the State Prosecutor’s question as admissible, I find it essential. If we are going to determine my client’s guilt, then we need to understand his motivation. It is of relevance how Mr Koch considered his own legal position. As we have heard, he took his decision anything but lightly.

  Presiding Judge (to the audience) Ladies and gentlemen judges, the Defence Counsel points out that his client had considered his legal position and ought to be questioned about this. In this particular case his argument has some merit. We, like all modern states, have a law which is based on guilt. We punish a defendant according to his or her personal guilt. Earlier forms of law took the deed alone to be decisive. Anyone who killed a person would themselves be killed. Why the crime had been committed was irrelevant. Now, however, we want to understand this ‘why’. We want to be able to comprehend what can have motivated someone to break the law. Did he kill to enrich himself? Out of jealousy? Out of pleasure in killing? Or did he have entirely different motives, possibly even ones with which we would agree? Our case today is such that the defendant’s motives are evidently closely connected to his notion of the law. So we should hear his thoughts.

  (To the State Prosecutor.) Very well, I shall admit these questions. Prosecutor.

  State Prosecutor Mr Koch, if I understand you correctly, you acted quite deliberately contrary to the ruling of the Federal Constitutional Court.

  Defendant Yes.

  State Prosecutor You know – this is something else you would have learnt in your training – that you may only contravene an order if that order is against the law.

  Defendant I am aware of that.

  State Prosecutor And you knew that as part of the powers of the state you are bound by the rulings of the Federal Constitutional Court.

  Defendant Basically yes.

  State Prosecutor Basically?

  Defendant I think the Federal Constitutional Court’s ruling is wrong.

  State Prosecutor Can you explain that to us?

  Defendant Yes. The question is whether the killing of non-participants is permissible in an extreme case.

  State Prosecutor The Federal Constitutional Court ruled against that …

  Defendant But the point is that there are 164 passengers on one side and 70,000 spectators in the stadium on the other. When the figures are so disproportionate, it’s impossble not to weigh one side against the other.

  State Prosecutor If I understand you correctly, you believe that the larger number of spectators in the stadium justifies killing the passengers.

  Defendant Yes.

  State Prosecutor So you do weigh one life against another?

  Defendant No, not one individual life against another individual life. I just believe that it was right to kill a few people in order to save a great many.

  State Prosecutor Fine. Do you fundamentally believe that every human life is of equal value?

  Defendant Of course.

  State Prosecutor However, protecting an individual life may be abandoned if this will save several other lives?

  Defendant Yes.

  State Prosecutor Would you imagine please a man who is admitted to hospital because he has broken his arm. Apart from this, he is in excellent health. In this hospital there is a whole series of patients urgently awaiting transplants. It is their only hope. According to your argument they would be entitled to kill the man with the broken arm on the spot in order to harvest his organs.

  Defendant No, of course not.

  State Prosecutor Why not?

  Defendant Exceptions can only be made for large numbers of people.

  State Prosecutor So four to one’s not enough as far as you’re concerned?

  Defendant No, definitely not.

  State Prosecutor I see. Is a hundred to one better? Or a thousand to one? Ten thousand to one, maybe? Where exactly do you draw the line?

  Defendant I can’t say. One would have to decide case by case.

  State Prosecutor Not ‘one’. You mean you would have to decide case by case.

  Defendant Me?

  State Prosecutor Yes, you. Isn’t it true that with your decision you’re putting yourself in what is – to put it pathetically – a God-like position? You alone are now allowed to decide the proportion which is required for someone to carry on living. You dictate who lives and who dies.

  Defendant I …

  State Prosecutor You see, if every human life is of equal value – as you yourself believe – isn’t it impossible to weigh lives against each other by number? Wouldn’t that go against this principle?

  Defendant The passengers on the civilian plane only had a few minutes to live anyway.

  State Prosecutor That is an entirely different argument, though.

  Defendant The situation is that the plane would have exploded in the stadium. The passengers only had a very short time to live. Even if I had not fired, they would all have been killed.

  State Prosecutor Let me ask again: is the length of the life remaining the sole determining factor now?

  Defendant Yes.

  State Prosecutor In that case you alone are setting the time frame. Your notion is that people with low life-expectancy are no longer worth protecting. How long are you willing to give those people? Five minutes?

  Defendant I don’t know …

  State Prosecutor Less?

  Defendant I …

  State Prosecutor Or more? Can those people phone their relatives and say goodbye? A lot of passengers in the New York attacks did that.

  Defendant You … You’ve got to see this in practical terms.

  State Prosecutor In practical terms?

  Defendant I only shot that plane down at the last moment. I couldn’t have waited any longer.

  State Prosecutor But that doesn’t change anything, does it? Think of our example: if the man in hospital hasn’t just broken his arm but is mortally ill and only has a few hours to live, then according to your argument, you don’t wait for him to die. You can kill him straight away to harvest his organs.

  Defendant No, of course not.

  State Prosecutor Why not?

  Defendant A few hours are very different from a few minutes. And what’s more, the mortally ill patient in your example is innocent.

  State Prosecutor Innocent? But weren’t the passengers just as innocent?

  Defendant Not entirely, no.

  State Prosecutor You’re going to have to explain that.

  Defendant The passengers placed themselves in danger by boarding the aircraft.

  State Prosecutor Ah.

  Defendant Nowadays it is clear to everyone that there’s always a risk of being hijacked. Every airline passenger today knows they could become the victim of a terrorist attack. They can see it everywhere – just think of all the security checks you have to go through at the airport. The threat is obvious to everyone.

  State Prosecutor So it’s your belief then that by buying a ticket, the passengers are consenting to be killed?

  Defendant Potentially killed.

  State Prosecutor You don’t think that’s lost all touch with reality? That it’s entirely unrealistic?

  Defendant It’s the way we live now.

  State Prosecutor What about the children on the plane?

  Defendant Children?

  State Prosecutor There were children on the aeroplane. Did they consent to being killed too?

  Defendant I …

  Yes, their parents did on their behalf.

  State Prosecutor Interesting. But – if I were to follow your reasoning – weren’t the people in the stadium also taking such a risk?

  Defendant I don’t understand.

  State Prosecutor In the world as you see it everyone is aware of the dangers of being in a place wher
e crowds congregate. On an underground train, for example, or at a rock concert, a fan zone, or in a football stadium. You could go even further and say that anybody who goes to a cinema or a nightclub or a department store is placing themselves in danger and thereby consenting to being killed.

  Defendant That’s not what I meant.

  State Prosecutor So what did you mean?

  Defendant Passengers on aeroplanes are in particular danger.

  State Prosecutor Well …

  Defendant You know, you spend the whole time talking about emotions.

  State Prosecutor What do you mean by that?

  Defendant You need to look at the whole thing differently.

  State Prosecutor Do I?

  Defendant Those civilians had become part of a weapon. A terrorist weapon. The terrorist had turned that entire plane into his weapon. And that weapon is what I have to fight against.

  State Prosecutor Mr Koch, you’re an intelligent man. But aren’t you getting carried away just now?

  Defendant How?

  State Prosecutor By doing that is it not the case that you are denying that the passengers are still human?

  Defendant I beg your pardon?

  State Prosecutor You are turning the passengers into things, into objects, if you claim that they had become part of a weapon.

  Defendant But that’s what they were.

  State Prosecutor Is there anything human left of them as far as you’re concerned? Are they still people if we can only see them as part of a weapon? Doesn’t being human have to mean a lot more than that?

  Defendant Maybe you can afford these nice ideas. But I’m up there, I am responsible. I can’t allow myself to reflect on the nature of human existence. I’ve got to make a decision.

  Takes a drink of water.

  Presiding Judge Do you need to take a break, Mr Koch?

  Defendant No thank you. Prosecutor, if you’re going to go this far, let me explain how a soldier has to think. I swore an oath.

  State Prosecutor Yes?

  Defendant ‘To faithfully serve the Federal Republic of Germany and to bravely defend the rights and freedoms of the German people.’ I know it off by heart.

  State Prosecutor I don’t understand the connection.

  Defendant That oath means that a soldier must sacrifice his life if it will protect his country.