Presiding Judge I see.
Defendant And while we were flying alongside the Lufthansa aircraft, the worst situation which we can encounter in peacetime occurred. I know every one of us has thought about it hundreds of times. We’ve discussed amongst ourselves, with our families, our friends, our superiors, our law lecturers. Of course, every pilot hopes he’s never going to find himself in this situation.
Presiding Judge It’s not a combat mission.
Defendant That’s just it. The people on board that Lufthansa plane are civilians, we’re supposed to be protecting them.
Presiding Judge But what did you think?
Defendant I considered whether I was disobeying an order. To save tens of thousands of people by killing hundreds of them. If you’re asking me what was actually going through my mind in that second…
Presiding Judge Yes?
Defendant (more quietly) I thought about my wife and my son. Innards.
Presiding Judge Innards?
Defendant That’s my word for it.
Presiding Judge Aha.
Defendant I thought about death. That everything in my life was now going to change…
That’s what I thought.
Presiding Judge Very well. What did you do?
Defendant I slipped back behind the Lufthansa plane. So we were now flying a little behind the civilian aircraft, slightly above it. Then I let go of the Sidewinder. I can’t remember shouting into the microphone. I only heard that afterwards. My lawyer played me the tape.
It’s strange you forget something like that.
Presiding Judge When you fired – that is, when you activated the Sidewinder – did you know what the consequences would be?
Defendant Did I know I’d be put in prison?
Presiding Judge No. Was it clear to you that by shooting you would destroy the aircraft and kill the passengers?
Defendant Of course.
Presiding Judge What happened exactly?
Defendant When I fired?
Presiding Judge Yes, what happened to the aeroplane?
Defendant The 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 Judge And then?
Defendant The aircraft turned.
Presiding Judge (surprised) It flew backwards?
Defendant No, 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 Judge Alright. And then?
Defendant The heat of the explosion had melted off sections of the plane’s outer skin. Four passengers slipped out through these openings.
Presiding Judge Precisely four?
Defendant At 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 Judge What did you do?
Defendant We turned around and flew back to base. There we were arrested.
Presiding Judge We?
Defendant Initially, yes, my fellow officer too. I immediately made a statement.
Presiding Judge Good. Let’s go back again. Were you able to see the terrorist at all? Could you tell what he was doing?
Defendant No.
Presiding Judge And the other passengers? What did you see?
Defendant What am I supposed to have seen?
Presiding Judge Did the passengers try to enter the cockpit, for example?
Defendant No.
Presiding Judge Did you see whether passengers were standing in the aisle?
Defendant No, I did not see that.
Presiding Judge We 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.
Defendant I didn’t see that.
Presiding Judge You acted against the explicit order of your superior.
Defendant Yes, I did.
Presiding Judge Why?
Defendant Because 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 Prosecutor Following on from the Presiding Judge’s question: would you have been able to see whether the passengers were attempting to enter the cockpit?
Defendant The plane was on fire.
State Prosecutor Yes?
Defendant I couldn’t see anything, everything was full of smoke.
State Prosecutor So 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?
Defendant No.
Defence Counsel Prosecutor, I really don’t know where these questions are meant to lead.
State Prosecutor Are you objecting to my question?
Defence Counsel I simply want to know what it is you are asking.
State Prosecutor Either make a formal objection to my question or don’t interrupt me any more.
Presiding Judge Please, 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 Counsel Fine.
State Prosecutor So you can’t rule it out?
Defendant What?
State Prosecutor That the passengers had broken into the cockpit at the moment you fired.
Defendant I can’t rule it out.
State Prosecutor You can’t rule it out. Jolly good.
On another matter…
Defence Counsel What do you mean by ‘jolly good’? Are we going to comment on all the defendant’s answers now?
State Prosecutor Your Honour, please. I can’t exercise my right of cross-examination like this.
Presiding Judge Counsel, 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 Prosecutor Mr 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?
Defendant I gave a lecture to young fighter pilots on the Federal Constitutional Court’s ruling. I assume it’s in the file.
State Prosecutor Yes, 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…