Is this only an idea of professors and philosophers? A demand made by Constitutional Court judges who make their judgements far removed from the stresses of our normal lives? No, quite the opposite. The consequences of a decision that ignores human dignity are what you can see here in the case of Lars Koch. Think of the soldiers in the National Situation and Command Centre. If they had all acted according to the constitution, this situation would never have occurred. Because then the stadium would have been evacuated and only a few people would have been in danger. It is up to you, ladies and gentlemen, in your role as judges, to make clear that that is something you will not tolerate. You do not want the constitution to be breached in the way which the former Minister of Defence demanded.
Of course when Lars Koch shot the Lufthansa plane down the stadium was full. It is no fault of his that those soldiers acted in breach of the constitution. But what is relevant to him is the question raised in this trial by the joint plaintiff: could the passengers have overpowered the terrorist? Could they have beaten down the door to the cockpit? How far did they get? Would there have been time? – We don’t know. Could the pilot have acted differently? He was facing his own death and that of so many other people. Would he not have been able to lift the plane up at the last moment to save the people in the stadium? – We don’t know. Could the co-pilot have knocked the gun out of the terrorist’s hand at the last moment? Might everything have turned out alright in the end? – We don’t know that either. And why don’t we know all this? Because the defendant took a decision. He alone decided that the passengers had to die. He had no order to do so, quite the opposite. He knew that he was acting in defiance of his orders, in defiance of our laws, in defiance of the constitution and in defiance of our courts. Lars Koch was trained to make the correct decision in the most trying circumstances. Before that day he had thought hundreds of times about what he would do. And that is why he must now bear the consequences. Lars Koch, ladies and gentlemen, is not a hero. He killed. He turned people into mere objects in his own hands. He denied them any opportunity to make a decision… he took away their human dignity.
It is a terrible thing – the constitution demands a great deal of us, sometimes more than we think we can bear. But it is more intelligent than we are, more intelligent than our emotions, than our anger and our fear. Only if we respect it, if we respect its principles, if we respect human dignity always and everywhere, can we succeed in living together as a free society in an age of terror.
It’s true we are under threat from all sides, our state is exposed to the greatest dangers, and the world around us threatens to collapse. But in this situation it is all the more important for us to rely on the principles of a state based on justice. The law is like friendship – it’s no use if it’s only there for the good times.
The defendant has told you it was right to kill a few people in order to save many of them. But that really would mean that the law is just for the good times – in the bad, the difficult and the dark times we ought to act differently. No. If you find Lars Koch not guilty, you will declare human dignity and you will declare our constitution worthless. Ladies and gentlemen judges, I am certain you do not want to live in a world like that.
I therefore move that the court find the defendant guilty of murder on 164 counts.
Presiding Judge Thank you, Prosecutor.
Counsel, do you need any more time to prepare?
Defence Counsel No.
Presiding Judge Good, then let’s hear your closing statement.
Defence Counsel (stands up) Ladies and gentlemen, did you hear the State Prosecutor? Did you understand what she was saying? She wants you to find Lars Koch guilty because of a principle. Really, that’s exactly what she said – you should lock him up for the rest of his life because of a principle. Because of a principle 70,000 people should have died. I don’t care what this principle is called – whether you call it ‘the constitution’ or ‘human dignity’ or anything else. All I can say is: thank God Lars Koch did not act on principle, instead he did what was right. I could actually finish my plea right now.
However, let us follow the State Prosecutor’s reasoning and consider for a moment whether it actually makes sense to act on principle. The same Immanuel Kant to whom the Prosecutor referred, wrote a short essay on principles. This was in 1797. It was entitled: ‘On the Presumed Right to Lie out of Love for Mankind’. And do you know what Kant wrote in that essay? Well, I can tell you: a murderer is standing outside your front door with an axe. Your friend has just escaped from this man and run into your house. Now the murderer says he wants to kill this friend of yours and asks if you know where he is. According to Kant, ladies and gentlemen, in this situation you are not allowed to lie because you are never allowed to lie. You have to say, ‘Of course, Mr Murderer, he’s back there sitting on the sofa watching the football on television. Have a nice day.’
I’m not joking. Kant really does demand that. And the State Prosecutor is demanding the same of you: to place a principle above an individual case, to value principles above lives. Principles may be reasonable and perhaps in most cases they may even be correct. But to follow them here – what kind of insanity would that be? I for one would always lie to the murderer because I believe it’s more important to save my friends.
And that, ladies and gentlemen, is the central point of these proceedings. Is it right to place the principle of human dignity above saving human lives? Think about that please. Take a step back for a moment and look at the things as they are. Mr Koch saved 70,000 people. To do so he had to kill 164 people. That’s all. Is that horrible? Yes, it is appalling, terrifying, shocking. But was there any alternative? No. Lars Koch weighed up the facts and he made the correct decision. Anyone who has any sense at all can, must and will see that no principle in the world can be more important than saving the lives of 70,000 people. Full stop.
Perhaps now – after the State Prosecutor’s closing statement – you might feel uncomfortable if you follow your conscience and not some set of principles. I admit that decisions of conscience are complex, but they are possible. Let us look at this matter in isolation. First you should know that the judges of the Federal Constitutional Court only ruled on whether the Aviation Security Law was constitutional or not. The question of whether a soldier would be criminally liable for shooting down a plane was specifically not examined by the judges. It’s important that you know this – you are the ones who will now make that judgement. Even though the law itself may have been unconstitutional, whether Lars Koch committed a crime is an entirely different question.
I will try to explain the real problem to you. The judges and our constitution see the value of life as being infinitely large. If that is so, then it is impossible to weigh lives against others – simply because you cannot add anything to infinity. One life is already worth as much as a hundred thousand lives.
Even this basic idea seems rather dubious to me and appears to contradict common sense. And there have always been courts which have decided that it was consistent with the law to choose the so-called ‘lesser evil’.
In 1841 the ship William Brown sank after hitting an iceberg. The lifeboats couldn’t carry all the survivors. They would have sunk and nobody would have survived. Alexander Holmes, an able seaman, threw fourteen or sixteen people – they never did work out the exact number – overboard. After they got back to Philadelphia, Holmes was put on trial for what he had done. The court found him guilty but gave him a very lenient sentence. The judges recognised the necessity of choosing a lesser evil over a greater one. Holmes had rescued the majority of the passengers.