Ferdinand von Schirach: Terror

Does the court have any more questions about the defendant’s personal details?

The State Prosecutor and Defence Counsel both shake their heads.

Fine. If there are no further motions or questions… I would ask the prosecution to read out the charge.

Defence CounselCan we open a window? The air in here’s terrible.

Presiding JudgeYou’re right. We’ve had this problem for days. Apparently the ventilation system is broken, that’s what the people in the office tell me. But if we open the window there’s too much noise.

Defence CounselFrom the street?

Presiding JudgeIt’s so loud you can’t even hear yourself think.

Defence CounselI have enough trouble with that as it is.

Presiding JudgeI beg your pardon?

Defence CounselNever mind.

Presiding JudgeBut would you please put on your gown, Mr Biegler?

Defence CounselOh. I hadn’t noticed. Rogues.

Presiding JudgeRogues? I don’t understand you.

Defence CounselThe gown… You know. In 1726 Frederick William I declared that all lawyers were to wear dark gowns. His exact words were: ‘So you can see the rogues coming from a long way off.’

Presiding JudgeAha.

Defence CounselHe had a point, the old King. Our colleagues are rather hard to take sometimes.

Presiding JudgeVery well. Are you ready now, Mr Biegler?

Defence CounselYes.

Presiding JudgeThen, if you please, State Prosecutor, the charge.

State Prosecutor( standing ) Lars Koch, whose personal details have just been specified, is charged under the German Criminal Code according to section 154a, paragraph 1 of the Code of Criminal Procedure that on 26th May 2013 above the village of Oberappersdorf he did use deadly force to kill 164 people.

The charge states that on 26th May 2013 at 20:21 hours, using an air-to-air guided weapons system, he did shoot down a passenger aircraft type A320-100/200 manufactured by Airbus Industries belonging to Lufthansa German Airlines which was at that time flying from Berlin to Munich under flight code LH 2047, and did thereby kill the 164 persons on board. He is charged with the crime of murder according to section 211, paragraph 2, group 2, variant 3.52, paragraph 1 of the German Criminal Code.

Presiding JudgeThank you.

The charge has been referred unamended by a decision of the chamber on 28th February this year, on page 256 in Volume 6 of the main files.

( To the Defendant. ) Mr Koch, in this trial you are accused of multiple murder. I am obliged to instruct you as the defendant that you may defend yourself by speaking or by being silent. You are not obliged to provide any testimony. If in the face of the charges raised against you you remain silent, the court cannot and shall not use your silence against you. Have you understood the charge and my instruction?

DefendantYes.

Presiding JudgeVery well. You will certainly have already discussed this with your Defence Counsel: at the preliminary proceedings you made a full confession. How do you wish to proceed today? Will you give testimony here?

Defendant( stands ) I…

Defence Counsel pulls the Defendant by the sleeve back down on to his seat, and then stands up himself.

Defence CounselI shall make a statement on behalf of the defendant.

Presiding JudgeFine. But you may remain seated.

Defence CounselYou know I prefer to stand. The dignity of the court…

Presiding JudgeIf it helps us get at the truth, very well.

Defence CounselLadies and gentlemen judges, every one of us knows where we were on 11th September 2001. Everyone knows where we saw those pictures for the first time – of the two planes which flew into the World Trade Center in New York, the third one which exploded by the Pentagon, and the fourth which crashed into a field near Pittsburgh. We can all see those people in front of us jumping to their deaths from a burning skyscraper. This was a terrorist act of mass murder. Eighteen months later a man here in Germany hijacked a light aircraft. He circled over Frankfurt and threatened to crash the plane into the headquarters of the European Central Bank. This triggered a major security alert and Frankfurt city centre was evacuated. In the event everything ended peacefully, the man landed and offered no resistance to his arrest.

But we had learnt something from this incident: we had finally understood that we need to protect ourselves.

That is why in 2005 a new law was passed, the Aviation Security Act. Our parliament agreed that if the worst did happen, then the Minister of Defence would be entitled to use armed force. Even against a passenger plane with innocent people on board. In the most extreme case a hijacked aircraft could be shot down. A majority of members of parliament voted for this law. It allowed the state to kill people. Not people who have committed a crime but people who are the victims of crime. You can imagine how long those debates went on in parliament.

A year after it was passed, the most significant paragraphs of this legislation were revoked by the Federal Constitutional Court. The Federal Constitutional Court is our supreme court. All powers of the state are bound by its decisions. And this court decreed that it was unconstitutional to kill innocent people in order to save other innocent people. One life should never be weighed against another.

You, ladies and gentlemen, are the judges who have to come to a decision today. What happened is as follows. A terrorist hijacked a passenger plane. He wanted to crash it into a football stadium and kill 70,000 people. But one man – this man – had the courage and the power to act. He shot that plane down and all 164 people aboard died. That is the charge which has been brought. And the prosecution is correct: Lars Koch did do this. He killed the people on that plane, men, women and children. He weighed it up: the lives of 164 innocent people against the lives of 70,000 innocent people. Lars Koch has admitted that he did this and we will do nothing to cover that up.

But, ladies and gentlemen, that is not the end of this trial, that is the beginning. There are 82 main files, 154 supplementary files, 46 folders of evidence, 15 files of photographs… All material relating to this case. My client has been in custody now for seven months, he has not seen his son in all that time, his wife is allowed to visit him once a fortnight for half an hour. But the only question in this case, the only question which you are being asked here today is: was Lars Koch permitted to kill these 164 people? Are there situations in our lives where it is right, proper and prudent to kill people? And indeed: where doing anything else would be absurd and even inhuman?

Of course such cases are so frightful as to make us question ourselves. But to believe that they do not exist because they are not allowed to exist – that is not only naive, it’s dangerous. In fact it’s very dangerous. There is no alternative: we have to accept that we live in a world where the most unimaginable and terrible things became reality a long time ago. We have to accept that there are limits to the principles of our constitution. And it is your job, ladies and gentlemen, as judges, your duty, to recognise this reality and to take account of it. I am confident that if you do so – do so fairly – that at the end of this trial you will find Lars Koch not guilty. You will find him not guilty because he acted. You will find him not guilty even though he killed 164 people.