Wednesday, February 15, 2006

Germany Disarms Itself Against September 11 Attacks

Germany's Constitutional Court has invalidated a law that would have permitted the German government to shoot down a hijacked plane if that plane was being used as a weapon endangering other people, like in the September 11 attacks. The Court found that the German law "infringed the right to life and human dignity" guaranteed by the German equivalent of a constitution.

I haven't read the decision (which is in German and can be found here), but based on the BBC's description of the decision and the Court's English language summary, the Bundesverfassungsgericht's decision seems almost indefensible. The law would have guaranteed civilian control over any decision to fire on an hijacked airliner. It would have required that decision to be the last resort of any government. Yet, apparently, the German government has no right to take the lives of the hijacked airline passengers to save the lives of others.

Here is the Court's English summary of its analysis of why the law violates the "right to human dignity."

2. § 14.3 of the Aviation Security Act is also not compatible with the right to life (Article 2.2 sentence 1 of the Basic Law) in conjunction with the guarantee of human dignity (Article 1.1 of the Basic Law) to the extent that the use of armed force affects persons on board theaircraft who are not participants in the crime.The passengers and crew members who are exposed to such a mission are in a desperate situation. They can no longer influence the circumstances oftheir lives independently from others in a self-determined manner.

This makes them objects not only of the perpetrators of the crime. Also the state which in such a situation resorts to the measure provided by §14.3 of the Aviation Security Act treats them as mere objects of its rescue operation for the protection of others. Such a treatment ignores the status of the persons affected as subjects endowed with dignity andinalienable rights. By their killing being used as a means to save others, they are treated as objects and at the same time deprived oftheir rights; with their lives being disposed of unilaterally by thestate, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to ahuman being for his or her own sake. In addition, this happens under circumstances in which it cannot be expected that at the moment in whicha decision concerning an operation pursuant to § 14.3 of the AviationSecurity Act is taken, there is always a complete picture of the factual situation and that the factual situation can always be assessed correctly then.

Under the applicability of Article 1.1 of the Basic Law (guarantee of human dignity) it is absolutely inconceivable to intentionally kill persons who are in such a helpless situation on the basis of a statutory authorisation.

The assumption that someone boarding an aircraft as a crew member or as a passenger will presumably consent to its being shotdown, and thus in his or her own killing, in the case of the aircraftbecoming involved in an aerial incident is an unrealistic fiction.. Also the assessment that the persons affected are doomed anyway cannot remove from the killing of innocent people in the situation described itsnature of an infringement of these people’s right to dignity. Human lifeand human dignity enjoy the same constitutional protection regardless ofthe duration of the physical existence of the individual human being.The opinion, which has been advanced on some occasions, that the persons who are held on board have become part of a weapon and must bear beingtreated as such, expresses in a virtually undisguised manner that thevictims of such an incident are no longer perceived as human beings. The idea that the individual is obliged to sacrifice his or her life in theinterest of the state as a whole in case of need if this is the onlypossible way of protecting the legally constituted body politic from attacks which are aimed at its breakdown and destruction also does notlead to a different result. For in the area of application of § 14.3 of the Aviation Security Act the issue is not the defence against attacks aimed at abolishing the body politic and at eliminating the state’s legal and constitutional system. Finally, § 14.3 of the AviationSecurity Act also cannot be justified by invoking the state’s duty to protect those against whose lives the aircraft that is abused as a weapon for a crime is intended to be used. Only such means may be used to comply with the state’s obligations to protect as are in harmony withthe constitution. This is not the case in the case at hand.

I understand that there are very complex moral and philosophical questions involved here. Can you take a life to save a life? But although this is an agonizing option, it is not an option that should be ruled out of hand unconstitutional before any particular circumstance arises. That only invites the likelihood of someone trying out this or other tactics.

Maybe I'm missing something or maybe I'm too Americanist in my thinking. If President Bush had ordered the downing of the two planes heading for the World Trade Center on September 11, I think it could have been morally justified. I certainly don't think it would be unconstitutional. But I look forward to hearing from folks about why I'm wrong.


Blogger geoff said...

Maybe it's hands-tying. If Bush had downed the planes heading for the World Trade Centers he would have been in a world of hurt. Without the carnage of the towers as a reference, the "rash," "unnecessary," "inhumane" and "wanton" decision to murder the people on the planes could have been devastating. But as long as the option isn't constitutionally permissible, he need not even consider it and, to be crass, the blood of the tower victims is less likely to stick (indeed, it surely helped Bush's political fortunes substantially). Not the best state of affairs for the German people, but arguably superior for the German government.

2/16/2006 1:00 AM  
Blogger EVK said...

This is the wildest decision I've seen in a while, and I thought nothing could surprise me. The opinion reads like a philosophy term paper. I know Kant was German, but does German law really require that people be treated as "ends" rather than "means", "subjects" rather than "objects"?

The opinion also seems entirely divorced from the actual stakes and trade-offs such a situation would pose. Does it not matter how many lives would be lost with out the planes being shot down? If they would hit a nuclear reactor (in neighboring France)?

Of course, this is because the opinion IS written outside of any factual context -- and this reaffirms the wisdom of the US ban on advisory opinions. Such a decision will necessarily look different when the situation is going down (and after), than in advance, and it is hard to see why the earlier and thus less-informed posistion should trump.

Incidentally, this logic would seem to bar police shooting at a hostage-taker when doing so might kill the hostages, and perhaps even building a road that is less than 1000% safe. Certainly it means that Germany's handling of the Munich Olympics was unconstitutional, given that the death of the athletes was a predictable consequence of firing on the terrorists, they were all bunched together. Someone should sue.

Doesn't this also counsel against looking to the constitutional judgments of other countries? Whatever the German court is doing here, it has a completely different frame of reference.

2/16/2006 1:44 AM  
Blogger EVK said...

It gets worse the more I think about it. The Court's logic is as follows. One can't kill innocent people regardless of how good a reason there is. Killing innocent people is wrong no matter what. If this is true, then downing a hijacked plane is wrong/amoral regardless of whether the government does it or whether private persons do it.

Under this reasoning, the passengers of the plane hijacked on Sept. 11th who overpowered the terrorists and crashed the plane were not heroes, but amoral killers -- unless they obtained the consent of all of their fellow passengers in advance.

The odiousness of this view should be apparent.

2/16/2006 2:29 AM  
Blogger Andreas Paulus said...

Dear all,
First of all, I would ask all of you to actually read the opinion - a detailed English press release is available - before commenting on it.
Second, the decision does not say you cannot kill a terrorist when he is in operation - the State cannot legally kill the innocent people the terrorist is using as a weapon.
Third, the opinion was not dealing with criminal law - it explicitly said that it did not consider whether some official who shoots a plane in extremis must be punished. It only says that you cannot have a law authorizing the killing of innocent people taken hostage by terrorists. (And it was not an advisory opinion, for that matter.)
If you like, the decision implies that you should analyze such events like the cabin boy incident - the English case where two shipwrecked ate the third - the cabin boy - to survive. The persons were pardoned in the end. Of course, there is a major difference - the shipwrecked did it to save themselves, the official shooting wishes to save others. But is that a relevant distinction? That will be, and is, a matter of debate.
You seem to assume that you can simply count lifes - but you cannot, if only for the uncertainties involved. If you think of Sept. 11, no plane was actually shot - because there was not enough time to even consider shooting. The judgment also says that for a country of the size of Germany, allowing shooting of an airplane with innocent passengers on board would make mistakes probable. Here may be a point where many Europeans disagree with many Americans - you seem (too easily, in my opinion) to believe that uncertainty does not exist - over nukes in Iraq, or about the consequences of intervention, as humanitarian the motives may be, or over the route of a kidnapped passenger jet.
Thus, one may certainly disagree with the opinion. But one should do so by asking the tough questions, after the reflection those difficult questions require.

Best, Andreas Paulus, Munich, Germany

2/16/2006 4:26 AM  
Blogger Kevin Jon Heller said...

I would also point out, in support of Andreas, that the decision is a relatively straightforward application of the German doctrine of necessity, which has always refused to allow a defendant to argue that he sacrificed an innocent life in order to save more innocent lives. The American doctrine of necessity is more generous to defendants, but it is far from clear that it is superior to the German doctrine -- for all the reasons about uncertainty and the slippery slope that Andreas mentions. For example, would Julian countenance shooting down the plane if there was a 1% chance that the hijackers would not go through with their suicide run? 5%? 10% 50%?

2/16/2006 1:04 PM  
Blogger anonymous said...

What Andreas and Kevin appear to ignore, however, in their rarified exegesis of this decision is the possible deterrence effect on potential terrorists considering hijacking a plane.
With this decision terrorists now know, at least over Germany, that if they get a plane in the air with even one innocent person on board they're home free. They can circle at leisure and adjust their suicide run without fear of time running out.

2/16/2006 5:33 PM  
Blogger Nakai said...

"Anonymous" - you missed the part where Andreas pointed out that there was no imposition of a criminal punishment on officials who decide to shoot down a hijacked plane; rather, the decision banned a statutory pre-authorization. Amusingly, this seems more in accord with the doctrine against advisory opinions (making a legal rule prior to any factual context) than the alternative, which would declare such an action legal before seeing any facts.

I have heard that in Germany, abortion is constitutionally criminal - but that there is no enforcement in most cases. Every legal system needs ways to maintain conceptual integrity via various legal fictions. Here, German officials are left appropriately free to make a difficult decision in light of all the relevant moral factors, without a statutory nudge in either direction.

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