Ferdinand von Schirach: Terror

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 JudgeThank you, Prosecutor.

Counsel, do you need any more time to prepare?

Defence CounselNo.

Presiding JudgeGood, 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.