Defendant (stands up) I agree with the statement made by my Defence Counsel. Everything has been said.
Presiding Judge Ladies and gentlemen, you have now heard the evidence from the defendant, the witnesses and the closing statements from both the Prosecution and the Defence. You will also bear in mind the defendant’s last words as you consider your decision. Now it is up to you alone to reach a just verdict. Do not let yourself be swayed by sympathy or antipathy towards the Defence Counsel or the State Prosecutor. Judge purely on the basis of what you consider to be right. You are now familiar with the arguments for both sides. I believe that the Prosecution and the Defence have each made their positions sufficiently clear. You must decide.
In 155 BC in Rome the Greek philosopher Carneades gave two orations on consecutive days. On the first day he argued the case brilliantly for a series of legal theories.
On the second day he found equally brilliant arguments to reject them all. His listeners were outraged. Yet all Carneades proved was that the truth is not a matter of argument.
Legally, in making your decision you must know the following: there can be no doubt here that the defendant committed the act – even the Defence Counsel has not disputed this. Your deliberations should therefore focus on the question of whether the defendant was allowed to contravene the restrictions placed upon him by the Federal Constitutional Court and the constitution. That is the heart of the matter. It may be that some among you will be minded to convict the defendant though in the light of the special circumstances of this case you do not wish him to have to serve a prison sentence. We judges have no possibility of first convicting the defendant because he has acted illegally and then subsequently pardoning him. That is the responsibility of other offices.
Once you have reached a verdict I shall announce it immediately. You alone will determine the outcome of this trial.
I know that this is a difficult decision but I am confident that you will succeed in judging the case of Lars Koch properly.
The Presiding Judge exits.
The Verdicts
Depending on the result of the audience’s vote the Presiding Judge announces that the defendant has been found guilty or not guilty.
GUILTY VERDICT
Guard All members of the court please return to the chamber.
The Defence Counsel, State Prosecutor and Stenographer take their seats. The Defendant is led in by the Guard and takes a seat next to the Defence Counsel. The Presiding Judge enters the chamber. All rise and remain standing.
Presiding Judge I declare that the verdict is as follows: On the charge of murder on 164 counts the defendant Lars Koch has been found guilty.
Please be seated. I have to announce the following order:
The arrest warrant made by the county court remains in force as a result of the defendant being convicted.
The Presiding Judge signs the order and passes it to the Stenographer.
It should be recorded that the verdict is based on the following: … judges voted for a conviction and … judges voted for an acquittal.
For the record: the defendant grew up in a middle-class family, began school at the appropriate age and after graduating from high school he completed training as a fighter pilot. He was most recently a Major in the Air Force. His life has been without reproach. He is married and has one son from this marriage.
On 26th May 2013 at 8.21 p.m., using an air-to-air guided weapons system, the defendant shot down a passenger aircraft belonging to Lufthansa German Airlines and did thereby kill the 164 persons on board. I can omit any further details of his actions: they are evident to all of us. The Federal Constitutional Court, as the Defence Counsel has aptly remarked, did not rule on whether this case represents a criminal offence. As to the legal grounds it should be noted:
Our law attaches no blame to a perpetrator who is averting danger from himself, a dependant or another person close to him. So if a father who is driving a car swerves to avoid his daughter and in doing so runs over a cyclist, he is not punished. But there was no such close relationship between Lars Koch and the spectators in the stadium.
So he could only be absolved of blame for a reason which is is not included in law. One possibility might be a so-called ‘extra-legal state of emergency.’ Indeed former Minister of Defence Jung has already called for this.
Such an extra-legal state of emergency is not regulated by the constitution, the criminal code or any other law. Legal commentaries have doubted whether it even exists.
This court at any rate considers it wrong to weigh one life against another, no matter what the numbers are. To do so contravenes our constitution and breaks the fundamental norms our our common life. Even in extreme situations the constitution must be upheld. Its highest principle – human dignity – may be a construct but that does not mean it is not worth protecting. On the contrary; it is and remains our sole guarantee of being able to live in a civilised community.
We shall illustrate this with an example: on 5th July 1884, an English yacht, the Mignonette, was caught in a storm. Some 1,600 miles from the Cape of Good Hope it capsized and sank. The crew was made up of four men: the captain, two strong sailors and a skinny seventeen-year-old ship’s boy. They managed to save themselves in a lifeboat. All they had on board were two tins of turnips. They survived on these for three days. On the fourth day they caught a small turtle which they could eat until the twelfth day. They had no water, and they only occasionally managed to catch a few drops of rainwater with their jackets. On the eighteenth day after the storm – by which time they had not eaten for eight days and not drunk for five days – the Captain suggested that one of the men among them be killed in order that the others be saved. Three days later the Captain had the idea of drawing lots – whoever lost, should be killed. But then they remembered that they had families while the boy was an orphan. They rejected the idea of drawing lots. The Captain was of the view that it was better simply to kill the boy. The next morning – with still no rescue in sight – the Captain approached the boy. He lay in a corner of the boat half crazed with thirst. He had drunk seawater and his body was dehydrated. It was clear that he was going to die within hours. The Captain told him his time had come. Then he stabbed him in the neck with a knife.
In the days that followed the three seamen ate parts of the boy’s body and drank his blood. On the fourth day after the deed, passengers on a passing ship came across the lifeboat. The three survivors were rescued and brought back to London.
The authorities had the seamen arrested. The Captain came forward as a witness. The case went down in legal history under the title: ‘The Queen versus Dudley and Stephens’ – that was the name of the two sailors. The sole question at the trial – very similar to our own case – was: were the seamen allowed to kill the ship’s boy in order to save their own lives? Three lives against one? The judge came straight to the point. In his judgement he said:
‘The prisoners were subject to terrible temptation, to sufferings which might try the conscience of the best … but by what measure is the comparative value of lives to be measured?’
And he went on to say: ‘Is it to be strength, or intellect, or what? In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be “No”.’
The judge sentenced the seamen to death for murder but recommended that they be pardoned. They were released after serving six months. The judgement contains some wonderful words which this court stands by to this day, 130 years later:
‘We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to allow compassion for the criminal to change or weaken in any manner the legal definition of the crime.’
The court has no doubt that the defendant made a serious effort and applied the full powers of his conscience to making the correct decision. It is a tragedy that he failed. But we cannot
allow this failure to set a precedent.
The passengers on the Lufthansa aircraft were the helpless victims not only of the terrorist but also of Lars Koch. They were killed, their dignity, their inalienable rights, their entire human existence were all ignored. Human beings are not objects. Their lives cannot be measured in numbers. They are not subordinate to the laws of the market. Today’s verdict in this court should also be understood as a renewed warning of the terrible dangers created by violating the fundamental values of our constitution.
The defendant has therefore been found guilty.
This trial is now closed. The lay judges are released from their duties with our thanks.
The Presiding Judge rises. At the same time everyone else – except the Defendant – stands up. The Presiding Judge exits via the door behind the judge’s bench.
Curtain.
The End.
NOT GUILTY VERDICT
Guard All members of the court please return to the chamber.
The Defence Counsel, State Prosecutor and Stenographer take their seats. The Defendant is led in by the Guard and takes a seat next to the Defence Counsel. The Presiding Judge enters the chamber. All rise and remain standing.
Presiding Judge I declare that the verdict is as follows: On the charge of murder on 164 counts the defendant Lars Koch has been found not guilty.
Please be seated. I have to announce the following order:
The arrest warrant made by the county court can be lifted as a result of the defendant being acquitted.
Presiding Judge signs the order and passes it to the Stenographer.
It should be recorded that the verdict is based on the following: … judges voted for a conviction and … judges voted for an acquittal.
For the record: the defendant grew up in a middle-class family, began school at the appropriate age and after graduating from high school he completed training as a fighter pilot. He was most recently a Major in the Air Force. His life has been without reproach. He is married and has one son from this marriage.
On 26th May 2013 at 8.21 p.m., using an air-to-air guided weapons system, the defendant shot down a passenger aircraft belonging to Lufthansa German Airlines and did thereby kill the 164 persons on board. I can omit any further details of his actions: they are evident to all of us. The Federal Constitutional Court, as the Defence Counsel has aptly remarked, did not rule on whether this case represents a criminal offence. As to the legal grounds it should be noted:
Our law attaches no blame to a perpetrator who is averting danger from himself, a dependant or another person close to him. So if a father who is driving a car swerves to avoid his daughter and in doing so runs over a cyclist, he is not punished. But there was no such close relationship between Lars Koch and the spectators in the stadium.
So he could only be absolved of blame for a reason which is is not included in law. One possibility might be a so-called ‘extra-legal state of emergency’. Indeed former Minister of Defence Jung has already called for this. Such an extra-legal state of emergency is not regulated by the constitution, the criminal code or any other law. In this the court recognises a contradiction of values which it is unwilling to accept: for if a perpetrator acts egotistically, attempting ‘only’ to rescue himself or close relatives, the law absolves him of blame – whereas if he acts selflessly he is acting against the law. To elevate an egotistical perpetrator above a selfless one is neither reasonable nor consistent with the aims of our communal life.
We have no doubt that the defendant made a serious effort and applied the full powers of his conscience to making the correct decision. Lars Koch did not shoot from personal motives, but in order to save the people in the stadium. He therefore chose what was objectively the lesser evil. For this reason no criminal blame can be attached to him.
The argument of the State Prosecutor that passengers might have been able to force their way into the cockpit or the pilot might have been able to make the aircraft fly higher, is an interesting one but is not ultimately persuasive. For one thing, it cannot be proven. For another, miracles may happen but our duty is not to deal with miracles but with facts. Otherwise it would be impossible to express a verdict. The Prosecution’s view that lives which have been given up for lost may not be curtailed further is doubtless correct. But such cases – we think of organ transplants from the dying, for example – are different from this one. This case bears no parallels to the remaining reality of our lives, so that the Prosecution’s otherwise correct argument to avoid precedent is not applicable.
To summarise we wish to observe: even though this may be hard to bear, we must accept that our laws are evidently not in a position to solve every moral problem in a manner free from contradiction. Lars Koch became a judge of life and death. We possess no legal criteria to test the decision of his conscience definitively. The law, the constitution and the courts left him alone with his decision. It is therefore our considered view that it is wrong to condemn him for it now.
The defendant has therefore been found not guilty.
This trial is now closed. The lay judges are released from their duties with our thanks.
The Presiding Judge rises. At the same time everyone else – except the Defendant – stands up. The Presiding Judge exits via the door behind the judge’s bench.
Curtain.
The End.
‘Keep Going Come What May’
A speech given by Ferdinand von Schirach in presenting
the M100 Sanssouci Media Award 2015 to Charlie Hebdo
Bonsoir, Monsieur Biard. Good evening, ladies and gentlemen.
On 2nd November 2011 the magazine Charlie Hebdo was firebombed. A few days before, a drawing of the prophet Mohammed had been printed on its front cover. Its offices were burnt out, its equipment destroyed and the magazine’s website was hacked. This now read: ‘God’s curse fall upon you.’ Next to these words was a picture of the mosque in Mecca.
Barely four years later, on 7th January 2015, at around 11.30 a.m., two masked men force their way into the editorial offices. Journalists, cartoonists and a visitor are sitting around a conference table with a cake on it. It’s someone’s birthday. The attackers kill eleven people. While on the run through Paris, the murderers shoot in the face a police man who is lying on the ground. He also dies. Later a third Islamist kills five more people in Paris, including customers of a Jewish supermarket.
These men, the sons of Algerian immigrants, were trained in Yemen by Al Qaeda. And indeed a few days later one of the leaders of that terrorist organisation claims responsibility for the attack. This was the most violent terrorist attack in France since 1961 and seventeen people were murdered. A bloodbath because of a couple of cartoons.
Today this prize honours the dead. And it also honours the survivors. Everyone would have understood if the journalists and artists had not kept going. The fact that you and your colleagues have done so, dear Mr Biard, that Charlie Hebdo still exists, comes despite many things. Despite the murder of your friends, despite the grief you feel for them and despite the conditions under which you now have to work. For this you deserve every prize there is and for this I pay tribute to you.
*
In the discussion that followed the murders of 7th January almost every newspaper in Germany quoted an essay written by the author Kurt Tucholsky in the year 1919. Here Tucholsky had asked, ‘What is satire allowed to do?’ to which he promptly supplied his own answer: ‘Everything.’ Arts journalists wrote their pieces, almost every editor composed a leading article and practically all of them agreed with Tucholsky. Their solidarity is understandable – but in fact Tucholsky meant something else entirely.
He wrote those words at a very different time. The First World War had been lost, the Kaiser had fled the country, society had collapsed. Tucholsky’s hopes, like those of so many, lay with democracy. This was what he was fighting for as a writer and essayist, and that is why he did not care in the slightest whether the authorities allowed his writings. Quit
e often they didn’t. At the time artists such as George Grosz and Karl Arnold were also charged with criminal offences. What Tucholsky meant was that satire could allow itself to do anything, that artists were disappointed idealists taking on reality.
He only experienced Hitler’s regime in its infancy. When he wrote those words, the Nazi magazine Der Stürmer did not yet exist. If he had been aware of the outrageous caricatures of Jews it would publish, he would certainly have written those words very differently.
Ladies and gentlemen, cartoons can be art and artistic freedom is now guaranteed in our constitutions. But it is enormously difficult to define what art actually is. In Paris in 1917 Marcel Duchamp placed a urinal on top of a plinth and said that this was art because he declared it was art. Subsequently Kurt Schwitters and Joseph Beuys would advocate the view that everyone is an artist and everything is art. If that were true and if it were also true that art is entirely free then everyone would be allowed to do everything. That would be the end of our society. ‘Strictly speaking, there is no such thing as “art”. There are only artists,’ said the leading art historian of the twentieth century, Ernst Gombrich. It is a wise statement. Who is doing the drawing and the writing is always important too. Art is what artists do.
Quite apart from this, the issue of how far satire and caricature are allowed to go is one that should never concern a satirical magazine. Satire stays alive by being transgressive. Once it stops doing that, it stops being satire. If everything is allowed, there is no need for it any more. Satire has to be sharp, critical and provocative. It has to hurt and upset people. If it doesn’t hurt anyone, it doesn’t mean anything. Artists cannot care whether what they are doing is allowed. And now they have no need to care because they no longer have to fear for their lives because in our enlightened society discussions about the limits of art, satire and caricature take place in a courtroom. That is perhaps art’s true freedom.
Terror Page 7
