Or think of the case that came before an English court in the year 2000. Siamese twins had been joined together from birth. The doctors said that if they remained in that state both of them would soon die. They wanted to separate the children. Separating them would have meant that one of the children would definitely have been killed. The parents did not want this to happen. The matter came to court. The Court of Appeal ruled in favour of the stronger child and allowed the weaker one to be killed. That too, ladies and gentlemen, is nothing other than weighing one life against another. In his written judgement Lord Justice Brooke, who sat in this case, used the example of a pilotless aircraft which is running out of fuel and on course to crash into a city. He decided that the law would allow the passengers who were destined to die to be shot down. And why? Again: it was the lesser evil.
The Vice President of the United States, Dick Cheney, declared a few days after 11th September 2001 that it would have been within the law for the planes to be shot down. Why? It was the lesser evil.
Ladies and gentlemen judges, I admit that this idea of choosing the lesser evil is more at home in other jurisdictions. However, and this is what really matters, it is reasonable. We can go on talking for a long time about the concepts of ‘human dignity’ and ‘the spirit of the constitution’. But the world is not a seminar for law students. In fact we find ourselves exposed to greater dangers than ever before. We may see the pictures every day, but we refuse to believe that they could happen to us. We have banished death from our lives, things will carry on peacefully for ever, so we think. It almost seems as if we are never going to die. But we are under threat: our society, our freedom, our way of life. The terrorists have stated their aims a thousand times: they want to destroy us. And what do we do? Have we got anything to oppose them with? Lars Koch has already explained this to you. Think of an attacker, someone who is confused, someone who because of some abstruse ideology or because of some fanatical beliefs, wants to commit murder. All his efforts are geared towards death and destruction. Now this attacker reads about the verdict of the Federal Constitutional Court. What conclusions does he draw? Does he think to himself: oh yes, human dignity, they’re right, I better not? That terrorist is going to go down the route those judges have provided. He is going to hijack an aircraft with as many innocent people on board as possible. Then he has a guarantee that our fastidiously just state will do nothing to stop him. The Federal Constitutional Court has given in. Don’t you do that, ladies and gentlemen. A guilty verdict for Lars Koch doesn’t protect our lives: it protects our enemies, the terrorists and the attacks they make on our lives.
Ladies and gentlemen judges, if you find Lars Koch guilty today, if you place a dubious constitutional principle above this individual case, by doing that you will be saying that we are not allowed to defend ourselves against terrorists. Perhaps the State Prosecutor is right, perhaps by doing that we are turning the passengers into objects and perhaps we are taking away their dignity. But we have to understand that we are at war. We did not choose it but we cannot change it. And, even if no one wants to hear this any more nowadays, there cannot be wars without victims.
For these reasons I move for a verdict of not guilty.
Presiding Judge Mr Koch, you are the defendant in these proceedings. The court allows you the last word before retiring to consider a verdict. Is there anything else you would like to say in your defence?
Defendant (stands up) I agree with the statement made by my Defence Counsel. Everything has been said.
Presiding Judge Ladies and gentlemen, you have now heard the evidence from the defendant, the witnesses and the closing statements from both the Prosecution and the Defence. You will also bear in mind the defendant’s last words as you consider your decision. Now it is up to you alone to reach a just verdict. Do not let yourself be swayed by sympathy or antipathy towards the Defence Counsel or the State Prosecutor. Judge purely on the basis of what you consider to be right. You are now familiar with the arguments for both sides. I believe that the Prosecution and the Defence have each made their positions sufficiently clear. You must decide.
In 155 BC in Rome the Greek philosopher Carneades gave two orations on consecutive days. On the first day he argued the case brilliantly for a series of legal theories.
On the second day he found equally brilliant arguments to reject them all. His listeners were outraged. Yet all Carneades proved was that the truth is not a matter of argument.
Legally, in making your decision you must know the following: there can be no doubt here that the defendant committed the act – even the Defence Counsel has not disputed this. Your deliberations should therefore focus on the question of whether the defendant was allowed to contravene the restrictions placed upon him by the Federal Constitutional Court and the constitution. That is the heart of the matter. It may be that some among you will be minded to convict the defendant though in the light of the special circumstances of this case you do not wish him to have to serve a prison sentence. We judges have no possibility of first convicting the defendant because he has acted illegally and then subsequently pardoning him. That is the responsibility of other offices.
Once you have reached a verdict I shall announce it immediately. You alone will determine the outcome of this trial.
I know that this is a difficult decision but I am confident that you will succeed in judging the case of Lars Koch properly.
The Presiding Judge exits.
The Verdicts
Depending on the result of the audience’s vote the Presiding Judge announces that the defendant has been found guilty or not guilty.
GUILTY VERDICT
Guard All 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 Judge I declare that the verdict is as follows: On the charge of murder on 164 counts the defendant Lars Koch has been found guilty.
Please be seated. I have to announce the following order:
The arrest warrant made by the county court remains in force as a result of the defendant being convicted.
The 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: