Ferdinand von Schirach: Terror

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 JudgeMr 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?

Defendant( stands up ) I agree with the statement made by my Defence Counsel. Everything has been said.

Presiding JudgeLadies 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.

Depending on the result of the audience’s vote the Presiding Judge announces that the defendant has been found guilty or not guilty.

GuardAll 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 JudgeI 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.