Ferdinand von Schirach: Terror

It’s strange you forget something like that.

Presiding JudgeWhen you fired – that is, when you activated the Sidewinder – did you know what the consequences would be?

DefendantDid I know I’d be put in prison?

Presiding JudgeNo. Was it clear to you that by shooting you would destroy the aircraft and kill the passengers?

DefendantOf course.

Presiding JudgeWhat happened exactly?

DefendantWhen I fired?

Presiding JudgeYes, what happened to the aeroplane?

DefendantThe Sidewinder’s infrared heat-seeker locked on to the right engine of the civilian aircraft. That is where the missile hit. Precisely. The kerosene in the wing exploded. This made the wing detach itself from the fuselage. Along with the wing it also lost the air current.

Presiding JudgeAnd then?

DefendantThe aircraft turned.

Presiding Judge( surprised ) It flew backwards?

DefendantNo, it rotated. It was now flying on its back, so to speak. There’s a simple technical explanation. The air current is lost and…

Presiding JudgeAlright. And then?

DefendantThe heat of the explosion had melted off sections of the plane’s outer skin. Four passengers slipped out through these openings.

Presiding JudgePrecisely four?

DefendantAt least four. That’s how many I could see. And luggage, bags, that sort of thing. The interior of the aircraft was on fire. The plastic melted. Then the second wing exploded and the plane crashed.

Presiding JudgeWhat did you do?

DefendantWe turned around and flew back to base. There we were arrested.

Presiding JudgeWe?

DefendantInitially, yes, my fellow officer too. I immediately made a statement.

Presiding JudgeGood. Let’s go back again. Were you able to see the terrorist at all? Could you tell what he was doing?

DefendantNo.

Presiding JudgeAnd the other passengers? What did you see?

DefendantWhat am I supposed to have seen?

Presiding JudgeDid the passengers try to enter the cockpit, for example?

DefendantNo.

Presiding JudgeDid you see whether passengers were standing in the aisle?

DefendantNo, I did not see that.

Presiding JudgeWe know from studying the Black Box – Volume 93, page 122 and following – that the passengers were attempting to break into the cockpit when the plane exploded.

DefendantI didn’t see that.

Presiding JudgeYou acted against the explicit order of your superior.

DefendantYes, I did.

Presiding JudgeWhy?

DefendantBecause I thought it was right. I wasn’t prepared to let 70,000 people die.

Presiding Judge( turns to the State Prosecutor ) Are there any other questions for Mr Koch? Prosecutor?

State ProsecutorFollowing on from the Presiding Judge’s question: would you have been able to see whether the passengers were attempting to enter the cockpit?

DefendantThe plane was on fire.

State ProsecutorYes?

DefendantI couldn’t see anything, everything was full of smoke.

State ProsecutorSo you weren’t able to see whether the people thrown out of the plane had been sitting in their seats or standing in the aisle or had been in the process of trying to enter the cockpit?

DefendantNo.

Defence CounselProsecutor, I really don’t know where these questions are meant to lead.

State ProsecutorAre you objecting to my question?

Defence CounselI simply want to know what it is you are asking.

State ProsecutorEither make a formal objection to my question or don’t interrupt me any more.

Presiding JudgePlease, please. This is a stressful trial.

Do you want to object to the State Prosecutor’s question? At the moment I can’t see any reason…

Defence CounselFine.

State ProsecutorSo you can’t rule it out?

DefendantWhat?

State ProsecutorThat the passengers had broken into the cockpit at the moment you fired.

DefendantI can’t rule it out.

State ProsecutorYou can’t rule it out. Jolly good.

On another matter…

Defence CounselWhat do you mean by ‘jolly good’? Are we going to comment on all the defendant’s answers now?

State ProsecutorYour Honour, please. I can’t exercise my right of cross-examination like this.

Presiding JudgeCounsel, I must agree with the Prosecutor. If you wish to object to something please do so formally. If not, then please make no further interruption to her questioning.

The Defence Counsel shakes his head but raises no further protest.

State ProsecutorMr Koch, I too have read your personal file. During your training you took a particular interest in matters of law. In light of this would you be prepared to give more precise reasons for your ruling?

DefendantI gave a lecture to young fighter pilots on the Federal Constitutional Court’s ruling. I assume it’s in the file.

State ProsecutorYes, that’s right, there is a note of it. Then I ask you what was your understanding of this ruling. What legal conclusions did you…

Presiding JudgeProsecutor, now I have to interrupt. You know that we do not debate matters of law with the defendant. We investigate the facts. And they are the basis on which we shall come to a ruling. That was also the reason why I did not ask Mr Koch any further questions…

Defence CounselExcuse me please. Not only do I regard the State Prosecutor’s question as admissible, I find it essential. If we are going to determine my client’s guilt, then we need to understand his motivation. It is of relevance how Mr Koch considered his own legal position. As we have heard, he took his decision anything but lightly.

Presiding Judge( to the audience ) Ladies and gentlemen judges, the Defence Counsel points out that his client had considered his legal position and ought to be questioned about this. In this particular case his argument has some merit. We, like all modern states, have a law which is based on guilt. We punish a defendant according to his or her personal guilt. Earlier forms of law took the deed alone to be decisive. Anyone who killed a person would themselves be killed. Why the crime had been committed was irrelevant. Now, however, we want to understand this ‘why’. We want to be able to comprehend what can have motivated someone to break the law. Did he kill to enrich himself? Out of jealousy? Out of pleasure in killing? Or did he have entirely different motives, possibly even ones with which we would agree? Our case today is such that the defendant’s motives are evidently closely connected to his notion of the law. So we should hear his thoughts.

( To the State Prosecutor .) Very well, I shall admit these questions. Prosecutor.

State ProsecutorMr Koch, if I understand you correctly, you acted quite deliberately contrary to the ruling of the Federal Constitutional Court.