Our law attaches no blame to a perpetrator who is averting danger from himself, a dependant or another person close to him. So if a father who is driving a car swerves to avoid his daughter and in doing so runs over a cyclist, he is not punished. But there was no such close relationship between Lars Koch and the spectators in the stadium.
So he could only be absolved of blame for a reason which is is not included in law. One possibility might be a so-called ‘extra-legal state of emergency.’ Indeed former Minister of Defence Jung has already called for this.
Such an extra-legal state of emergency is not regulated by the constitution, the criminal code or any other law. Legal commentaries have doubted whether it even exists.
This court at any rate considers it wrong to weigh one life against another, no matter what the numbers are. To do so contravenes our constitution and breaks the fundamental norms our our common life. Even in extreme situations the constitution must be upheld. Its highest principle – human dignity – may be a construct but that does not mean it is not worth protecting. On the contrary; it is and remains our sole guarantee of being able to live in a civilised community.
We shall illustrate this with an example: on 5th July 1884, an English yacht, the Mignonette, was caught in a storm. Some 1,600 miles from the Cape of Good Hope it capsized and sank. The crew was made up of four men: the captain, two strong sailors and a skinny seventeen-year-old ship’s boy. They managed to save themselves in a lifeboat. All they had on board were two tins of turnips. They survived on these for three days. On the fourth day they caught a small turtle which they could eat until the twelfth day. They had no water, and they only occasionally managed to catch a few drops of rainwater with their jackets. On the eighteenth day after the storm – by which time they had not eaten for eight days and not drunk for five days – the Captain suggested that one of the men among them be killed in order that the others be saved. Three days later the Captain had the idea of drawing lots – whoever lost, should be killed. But then they remembered that they had families while the boy was an orphan. They rejected the idea of drawing lots. The Captain was of the view that it was better simply to kill the boy. The next morning – with still no rescue in sight – the Captain approached the boy. He lay in a corner of the boat half crazed with thirst. He had drunk seawater and his body was dehydrated. It was clear that he was going to die within hours. The Captain told him his time had come. Then he stabbed him in the neck with a knife.
In the days that followed the three seamen ate parts of the boy’s body and drank his blood. On the fourth day after the deed, passengers on a passing ship came across the lifeboat. The three survivors were rescued and brought back to London.
The authorities had the seamen arrested. The Captain came forward as a witness. The case went down in legal history under the title: ‘The Queen versus Dudley and Stephens’ – that was the name of the two sailors. The sole question at the trial – very similar to our own case – was: were the seamen allowed to kill the ship’s boy in order to save their own lives? Three lives against one? The judge came straight to the point. In his judgement he said:
‘The prisoners were subject to terrible temptation, to sufferings which might try the conscience of the best… but by what measure is the comparative value of lives to be measured?’
And he went on to say: ‘Is it to be strength, or intellect, or what? In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be “No”.’
The judge sentenced the seamen to death for murder but recommended that they be pardoned. They were released after serving six months. The judgement contains some wonderful words which this court stands by to this day, 130 years later:
‘We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to allow compassion for the criminal to change or weaken in any manner the legal definition of the crime.’
The court has no doubt that the defendant made a serious effort and applied the full powers of his conscience to making the correct decision. It is a tragedy that he failed. But we cannot allow this failure to set a precedent.
The passengers on the Lufthansa aircraft were the helpless victims not only of the terrorist but also of Lars Koch. They were killed, their dignity, their inalienable rights, their entire human existence were all ignored. Human beings are not objects. Their lives cannot be measured in numbers. They are not subordinate to the laws of the market. Today’s verdict in this court should also be understood as a renewed warning of the terrible dangers created by violating the fundamental values of our constitution.
The defendant has therefore been found guilty.
This trial is now closed. The lay judges are released from their duties with our thanks.
The Presiding Judge rises. At the same time everyone else – except the Defendant – stands up. The Presiding Judge exits via the door behind the judge’s bench.
Curtain.
NOT 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 not guilty.
Please be seated. I have to announce the following order:
The arrest warrant made by the county court can be lifted as a result of the defendant being acquitted.
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:
Our law attaches no blame to a perpetrator who is averting danger from himself, a dependant or another person close to him. So if a father who is driving a car swerves to avoid his daughter and in doing so runs over a cyclist, he is not punished. But there was no such close relationship between Lars Koch and the spectators in the stadium.
So he could only be absolved of blame for a reason which is is not included in law. One possibility might be a so-called ‘extra-legal state of emergency’. Indeed former Minister of Defence Jung has already called for this. Such an extra-legal state of emergency is not regulated by the constitution, the criminal code or any other law. In this the court recognises a contradiction of values which it is unwilling to accept: for if a perpetrator acts egotistically, attempting ‘only’ to rescue himself or close relatives, the law absolves him of blame – whereas if he acts selflessly he is acting against the law. To elevate an egotistical perpetrator above a selfless one is neither reasonable nor consistent with the aims of our communal life.