Terror

by Ferdinand von Schirach

  But, as you have already heard, the constitution demands something different from us. The judges of the Federal Constitutional Court have put it in these words: one life must not be weighed against another. Never, not even in great numbers. This makes us pause. And we owe it to the defendant and to the victims to think about this more carefully.

  What are the criteria by which we will decide whether the defendant was allowed to kill or not? We are actually deciding according to our consciences, according to our morals, according to our common sense. And there are other words to express this: the former Minister of Defence referred to an ‘extra-legal state of emergency’. Some lawyers call it ‘natural law’.

  However, ladies and gentlemen, the terminology is irrelevant. The meaning is always the same: that we should decide on the basis of ideas which stand above the law, which are greater than the law, ideas therefore, which replace the law. One has to ask: is this wise? I know that each and every one of you believes that you can rely on your own morals and your own conscience. But that is not true.

  In 1951 the German philosopher of ethics Hans Welzel described the so-called trolley problem: on a steep mountain railway, a goods train runs out of control. With all its weight it hurtles down the track into the valley heading for a tiny station. Here, a passenger train is waiting. If the goods train keeps going it will kill hundreds of people. Now imagine for a moment that you are in the signal box. You have the opportunity to change one of the points and divert the goods train on to a siding. The problem is that there are five workmen in this siding repairing the track. If you divert the train, you will kill those five workmen but save hundreds of passengers. What would you do? Would you accept the death of those five people as the price to be paid?

  Indeed most people would divert the train. And after some consideration we believe that it is the right thing to do.

  But if the scenario is changed only slightly, then it immediately becomes much more complicated. In 1976, Judith Thomson, an American moral philosopher, suggested a variant to this example: the goods train is still hurtling down the mountain, but now there are no points that you can change. You are now a bystander, standing on a bridge, watching what is going on. Next to you is an extremely fat man. If he were to fall off the bridge, he would land on the track. He would be run over, but his body would stop the train. Now you can’t simply push the man off, he’s much too fat and too strong. So you would have to kill him first, with a knife, for example, then you could throw him down. If you did that you could save the passengers. What would you, ladies and gentlemen judges, do now?

  Yes, most people would refuse to kill the man. But what has acutally changed? In fact there’s just one thing: we would now have to use our own hands. We would have to kill a human being ourselves with our own hands. And we can’t do that. Even though there is hardly any difference between the two situations, in our heads everything has changed. In the first case we are prepared to kill five people – but now it’s impossible for us to kill only one. Suddenly it no longer seems possible for us to make the right decision. Ladies and gentlemen, we must therefore accept that there is no certainty in moral questions.

  We make mistakes, we make them over and over again, it is in our nature – we cannot help it. Morality, conscience, common sense, natural law, extra-legal state of emergency – each one of these terms is suspect, they shift, and it is in their nature that we cannot be certain what the correct course of action is today and whether we will draw exactly the same conclusions tomorrow.

  So we need something more reliable than our spontaneous convictions. Something that we can use to judge by at any time and that we can hold on to. Something that provides us with clarity amid the chaos – a guideline which applies even in the most difficult situations. We need principles.

  And, ladies and gentlemen judges, we have given ourselves these principles. They are our constitution. We have agreed to judge each individual case by it. Every case is to be measured by it and tested by it. By that constitution – not by our consciences, not by our morals and certainly not by any other higher power. Law and morality must be kept strictly separate.

  It has taken us a long time to understand: this is the essence of a state based on justice. You all know what a high price we have had to pay for this knowledge. Only what has become law may be binding for all. A true law passed through the complex democratic procedures of our parliament. And that is why laws, even if to some of us they may appear immoral or wrong, remain valid. Our only recourse is to repeal them. And moral views? Regardless of how correct they may appear to us – they bind no one. Only the law and nothing else can do that. And what is more: a ‘morally correct’ view may never be placed above the constitution. At least not in a functioning democratic state based on justice.

  Now you will also be aware that the constitution allows for a right to resist. There may be laws which lead to such intolerable injustice that to apply them would be inhuman. However, ladies and gentlemen judges, we really cannot say that in the case of Lars Koch: this was not about killing a tyrant.

  Our constitution is a collection of principles which must always and unreservedly take precedence over morals, conscience and any other notion. And the highest principle of this constitution is human dignity.

  Our constitution begins with the sentence: ‘Human dignity shall be inviolable.’ It isn’t at the beginning by accident. That sentence is the most important statement in the constitution. This first article is ‘guaranteed in perpetuity’– that means it cannot be amended as long as the constitution is in force. But what is this dignity actually? The Federal Constitutional Court says that dignity means a human being may never be turned into a mere object of action by the state. ‘A mere object of action by the state’: what does that mean? The idea can be traced back to Kant. Human beings, says Kant, are able to give themselves their own laws and act according to them, and that is what distinguishes them from all other creatures. They recognise the world and they can think about themselves. This makes them subjects and not mere objects, like a stone. Every human being possesses this dignity.

  If decisions are made about any person over which they can have no influence, if decisions are made over their heads, then they become objects. And it is therefore clear: the state may never weigh one life against another. And not against a hundred, or against a thousand lives either. Every individual person – and every one of you ladies and gentlemen judges – possesses this dignity. People are not objects. Life cannot be measured in numbers. It is not a market.

  Is this only an idea of professors and philosophers? A demand made by Constitutional Court judges who make their judgements far removed from the stresses of our normal lives? No, quite the opposite. The consequences of a decision that ignores human dignity are what you can see here in the case of Lars Koch. Think of the soldiers in the National Situation and Command Centre. If they had all acted according to the constitution, this situation would never have occurred. Because then the stadium would have been evacuated and only a few people would have been in danger. It is up to you, ladies and gentlemen, in your role as judges, to make clear that that is something you will not tolerate. You do not want the constitution to be breached in the way which the former Minister of Defence demanded.

  Of course when Lars Koch shot the Lufthansa plane down the stadium was full. It is no fault of his that those soldiers acted in breach of the constitution. But what is relevant to him is the question raised in this trial by the joint plaintiff: could the passengers have overpowered the terrorist? Could they have beaten down the door to the cockpit? How far did they get? Would there have been time? – We don’t know. Could the pilot have acted differently? He was facing his own death and that of so many other people. Would he not have been able to lift the plane up at the last moment to save the people in the stadium? – We don’t know. Could the co-pilot have knocked the gun out of the terrorist’s hand at the last moment? Might everything have turned out alright in the end? – We don’t kn
ow that either. And why don’t we know all this? Because the defendant took a decision. He alone decided that the passengers had to die. He had no order to do so, quite the opposite. He knew that he was acting in defiance of his orders, in defiance of our laws, in defiance of the constitution and in defiance of our courts. Lars Koch was trained to make the correct decision in the most trying circumstances. Before that day he had thought hundreds of times about what he would do. And that is why he must now bear the consequences. Lars Koch, ladies and gentlemen, is not a hero. He killed. He turned people into mere objects in his own hands. He denied them any opportunity to make a decision … he took away their human dignity.

  It is a terrible thing – the constitution demands a great deal of us, sometimes more than we think we can bear. But it is more intelligent than we are, more intelligent than our emotions, than our anger and our fear. Only if we respect it, if we respect its principles, if we respect human dignity always and everywhere, can we succeed in living together as a free society in an age of terror.

  It’s true we are under threat from all sides, our state is exposed to the greatest dangers, and the world around us threatens to collapse. But in this situation it is all the more important for us to rely on the principles of a state based on justice. The law is like friendship – it’s no use if it’s only there for the good times.

  The defendant has told you it was right to kill a few people in order to save many of them. But that really would mean that the law is just for the good times – in the bad, the difficult and the dark times we ought to act differently. No. If you find Lars Koch not guilty, you will declare human dignity and you will declare our constitution worthless. Ladies and gentlemen judges, I am certain you do not want to live in a world like that.

  I therefore move that the court find the defendant guilty of murder on 164 counts.

  Presiding Judge Thank you, Prosecutor.

  Counsel, do you need any more time to prepare?

  Defence Counsel No.

  Presiding Judge Good, then let’s hear your closing statement.

  Defence Counsel (stands up) Ladies and gentlemen, did you hear the State Prosecutor? Did you understand what she was saying? She wants you to find Lars Koch guilty because of a principle. Really, that’s exactly what she said – you should lock him up for the rest of his life because of a principle. Because of a principle 70,000 people should have died. I don’t care what this principle is called – whether you call it ‘the constitution’ or ‘human dignity’ or anything else. All I can say is: thank God Lars Koch did not act on principle, instead he did what was right. I could actually finish my plea right now.

  However, let us follow the State Prosecutor’s reasoning and consider for a moment whether it actually makes sense to act on principle. The same Immanuel Kant to whom the Prosecutor referred, wrote a short essay on principles. This was in 1797. It was entitled: ‘On the Presumed Right to Lie out of Love for Mankind’. And do you know what Kant wrote in that essay? Well, I can tell you: a murderer is standing outside your front door with an axe. Your friend has just escaped from this man and run into your house. Now the murderer says he wants to kill this friend of yours and asks if you know where he is. According to Kant, ladies and gentlemen, in this situation you are not allowed to lie because you are never allowed to lie. You have to say, ‘Of course, Mr Murderer, he’s back there sitting on the sofa watching the football on television. Have a nice day.’

  I’m not joking. Kant really does demand that. And the State Prosecutor is demanding the same of you: to place a principle above an individual case, to value principles above lives. Principles may be reasonable and perhaps in most cases they may even be correct. But to follow them here – what kind of insanity would that be? I for one would always lie to the murderer because I believe it’s more important to save my friends.

  And that, ladies and gentlemen, is the central point of these proceedings. Is it right to place the principle of human dignity above saving human lives? Think about that please. Take a step back for a moment and look at the things as they are. Mr Koch saved 70,000 people. To do so he had to kill 164 people. That’s all. Is that horrible? Yes, it is appalling, terrifying, shocking. But was there any alternative? No. Lars Koch weighed up the facts and he made the correct decision. Anyone who has any sense at all can, must and will see that no principle in the world can be more important than saving the lives of 70,000 people. Full stop.

  Perhaps now – after the State Prosecutor’s closing statement – you might feel uncomfortable if you follow your conscience and not some set of principles. I admit that decisions of conscience are complex, but they are possible. Let us look at this matter in isolation. First you should know that the judges of the Federal Constitutional Court only ruled on whether the Aviation Security Law was constitutional or not. The question of whether a soldier would be criminally liable for shooting down a plane was specifically not examined by the judges. It’s important that you know this – you are the ones who will now make that judgement. Even though the law itself may have been unconstitutional, whether Lars Koch committed a crime is an entirely different question.

  I will try to explain the real problem to you. The judges and our constitution see the value of life as being infinitely large. If that is so, then it is impossible to weigh lives against others – simply because you cannot add anything to infinity. One life is already worth as much as a hundred thousand lives.

  Even this basic idea seems rather dubious to me and appears to contradict common sense. And there have always been courts which have decided that it was consistent with the law to choose the so-called ‘lesser evil’.

  In 1841 the ship William Brown sank after hitting an iceberg. The lifeboats couldn’t carry all the survivors. They would have sunk and nobody would have survived. Alexander Holmes, an able seaman, threw fourteen or sixteen people – they never did work out the exact number – overboard. After they got back to Philadelphia, Holmes was put on trial for what he had done. The court found him guilty but gave him a very lenient sentence. The judges recognised the necessity of choosing a lesser evil over a greater one. Holmes had rescued the majority of the passengers.

  Or think of the case that came before an English court in the year 2000. Siamese twins had been joined together from birth. The doctors said that if they remained in that state both of them would soon die. They wanted to separate the children. Separating them would have meant that one of the children would definitely have been killed. The parents did not want this to happen. The matter came to court. The Court of Appeal ruled in favour of the stronger child and allowed the weaker one to be killed. That too, ladies and gentlemen, is nothing other than weighing one life against another. In his written judgement Lord Justice Brooke, who sat in this case, used the example of a pilotless aircraft which is running out of fuel and on course to crash into a city. He decided that the law would allow the passengers who were destined to die to be shot down. And why? Again: it was the lesser evil.

  The Vice President of the United States, Dick Cheney, declared a few days after 11th September 2001 that it would have been within the law for the planes to be shot down. Why? It was the lesser evil.

  Ladies and gentlemen judges, I admit that this idea of choosing the lesser evil is more at home in other jurisdictions. However, and this is what really matters, it is reasonable. We can go on talking for a long time about the concepts of ‘human dignity’ and ‘the spirit of the constitution’. But the world is not a seminar for law students. In fact we find ourselves exposed to greater dangers than ever before. We may see the pictures every day, but we refuse to believe that they could happen to us. We have banished death from our lives, things will carry on peacefully for ever, so we think. It almost seems as if we are never going to die. But we are under threat: our society, our freedom, our way of life. The terrorists have stated their aims a thousand times: they want to destroy us. And what do we do? Have we got anything to oppose them with? Lars Koch has already explained this to you.
Think of an attacker, someone who is confused, someone who because of some abstruse ideology or because of some fanatical beliefs, wants to commit murder. All his efforts are geared towards death and destruction. Now this attacker reads about the verdict of the Federal Constitutional Court. What conclusions does he draw? Does he think to himself: oh yes, human dignity, they’re right, I better not? That terrorist is going to go down the route those judges have provided. He is going to hijack an aircraft with as many innocent people on board as possible. Then he has a guarantee that our fastidiously just state will do nothing to stop him. The Federal Constitutional Court has given in. Don’t you do that, ladies and gentlemen. A guilty verdict for Lars Koch doesn’t protect our lives: it protects our enemies, the terrorists and the attacks they make on our lives.

  Ladies and gentlemen judges, if you find Lars Koch guilty today, if you place a dubious constitutional principle above this individual case, by doing that you will be saying that we are not allowed to defend ourselves against terrorists. Perhaps the State Prosecutor is right, perhaps by doing that we are turning the passengers into objects and perhaps we are taking away their dignity. But we have to understand that we are at war. We did not choose it but we cannot change it. And, even if no one wants to hear this any more nowadays, there cannot be wars without victims.

  For these reasons I move for a verdict of not guilty.

  Presiding Judge Mr Koch, you are the defendant in these proceedings. The court allows you the last word before retiring to consider a verdict. Is there anything else you would like to say in your defence?