Ferdinand von Schirach: Terror

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.

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 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.

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.