Presiding Judge Prosecutor, 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 Counsel Excuse 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 Prosecutor Mr Koch, if I understand you correctly, you acted quite deliberately contrary to the ruling of the Federal Constitutional Court.
Defendant Yes.
State Prosecutor You know – this is something else you would have learnt in your training – that you may only contravene an order if that order is against the law.
Defendant I am aware of that.
State Prosecutor And you knew that as part of the powers of the state you are bound by the rulings of the Federal Constitutional Court.
Defendant Basically yes.
State Prosecutor Basically?
Defendant I think the Federal Constitutional Court’s ruling is wrong.
State Prosecutor Can you explain that to us?
Defendant Yes. The question is whether the killing of non-participants is permissible in an extreme case.
State Prosecutor The Federal Constitutional Court ruled against that…
Defendant But the point is that there are 164 passengers on one side and 70,000 spectators in the stadium on the other. When the figures are so disproportionate, it’s impossble not to weigh one side against the other.
State Prosecutor If I understand you correctly, you believe that the larger number of spectators in the stadium justifies killing the passengers.
Defendant Yes.
State Prosecutor So you do weigh one life against another?
Defendant No, not one individual life against another individual life. I just believe that it was right to kill a few people in order to save a great many.
State Prosecutor Fine. Do you fundamentally believe that every human life is of equal value?
Defendant Of course.
State Prosecutor However, protecting an individual life may be abandoned if this will save several other lives?
Defendant Yes.
State Prosecutor Would you imagine please a man who is admitted to hospital because he has broken his arm. Apart from this, he is in excellent health. In this hospital there is a whole series of patients urgently awaiting transplants. It is their only hope. According to your argument they would be entitled to kill the man with the broken arm on the spot in order to harvest his organs.
Defendant No, of course not.
State Prosecutor Why not?
Defendant Exceptions can only be made for large numbers of people.
State Prosecutor So four to one’s not enough as far as you’re concerned?
Defendant No, definitely not.
State Prosecutor I see. Is a hundred to one better? Or a thousand to one? Ten thousand to one, maybe? Where exactly do you draw the line?
Defendant I can’t say. One would have to decide case by case.
State Prosecutor Not ‘one’. You mean you would have to decide case by case.
Defendant Me?
State Prosecutor Yes, you. Isn’t it true that with your decision you’re putting yourself in what is – to put it pathetically – a God-like position? You alone are now allowed to decide the proportion which is required for someone to carry on living. You dictate who lives and who dies.
Defendant I…
State Prosecutor You see, if every human life is of equal value – as you yourself believe – isn’t it impossible to weigh lives against each other by number? Wouldn’t that go against this principle?
Defendant The passengers on the civilian plane only had a few minutes to live anyway.
State Prosecutor That is an entirely different argument, though.
Defendant The situation is that the plane would have exploded in the stadium. The passengers only had a very short time to live. Even if I had not fired, they would all have been killed.
State Prosecutor Let me ask again: is the length of the life remaining the sole determining factor now?
Defendant Yes.
State Prosecutor In that case you alone are setting the time frame. Your notion is that people with low life-expectancy are no longer worth protecting. How long are you willing to give those people? Five minutes?
Defendant I don’t know…
State Prosecutor Less?
Defendant I…
State Prosecutor Or more? Can those people phone their relatives and say goodbye? A lot of passengers in the New York attacks did that.
Defendant You… You’ve got to see this in practical terms.
State Prosecutor In practical terms?
Defendant I only shot that plane down at the last moment. I couldn’t have waited any longer.
State Prosecutor But that doesn’t change anything, does it? Think of our example: if the man in hospital hasn’t just broken his arm but is mortally ill and only has a few hours to live, then according to your argument, you don’t wait for him to die. You can kill him straight away to harvest his organs.
Defendant No, of course not.
State Prosecutor Why not?
Defendant A few hours are very different from a few minutes. And what’s more, the mortally ill patient in your example is innocent.
State Prosecutor Innocent? But weren’t the passengers just as innocent?
Defendant Not entirely, no.
State Prosecutor You’re going to have to explain that.
Defendant The passengers placed themselves in danger by boarding the aircraft.
State Prosecutor Ah.
Defendant Nowadays it is clear to everyone that there’s always a risk of being hijacked. Every airline passenger today knows they could become the victim of a terrorist attack. They can see it everywhere – just think of all the security checks you have to go through at the airport. The threat is obvious to everyone.