German Bundesverfassungsgericht declares shot down of hijacked airliners invalid

[Avrel]

I think this might concern some people here as well.
Just watched it in the news and immediately checked out on the German FAZ newspaper homepage ( http://www.faz.net/s/Rub28FC768942F3...~Scontent.html ):


Edit: Apart from the rough article translation and my comment below it I added an original press release from the court's website, which I found hours later. It's English and might be far better understandable than this first post here.


"Permission of shot down invalid
Bundesverfassungsgericht (edit. remark: our German Supreme Court) stops German Air Safety Law

15th Feb 2006: The Bundesverfassungsgericht critized the Air Safety Law in its central point. It declared on Wednesday in Karlsruhe the included possibility of a shot down of a hijacked airliner as being against the German constitution and therefore invalid.
FDP-politician Burkhard Hirsch, a professional pilot and several regular fliers had charged against this law. Federal President Horst Köhler had only signed this law with second thoughts and suggested a check by the Bundesverfassungsgericht.

Protection of human dignity may not be limited

The permission of shot down violated according to the judgement of the First Senate under Chief Justice Hans-Jürger Papier the limitation of a Bundeswehr action within German borders, as it is given by the German constitution. The constitution limits the use of German forces within the country to help after natural desasters or large-scale accidents and does also not allow the use of heavy weapons.

The Air Safety Law, as it had been introcuded by the former German government and its Inner Affairs minister Otto Schily, offered as last possibility, to prevent a terrorist attack from happening, in the extreme case also to shoot a civil airliner with many passengers down if it would prevent other people from losing their life. The people charging against this law declared this counterweighting of human lives against each other as being a violation of the fundamental human rights of life and of human dignity. The justices followed this argumentation insofar as that they declared the prevention of human dignity as strict and not being restrictable.

Decision a defeat for people willing to allow use of forces within Germany

Of political importance is also the court's venture against a limitation of Bundeswehr tasks within Germany. " The use of the German Bundeswehr for other purposes than defence is according to constitutional law bound to strict prerequisites." said Papier in the opinion of the decision. The consitution only permits it "for help" or "for support" of the states' police forces after a natural desaster or a large scale accident. This prerequisite is not fulfilled in the central point of the Air Safety Law.

Especially the minister of Inner Affairs Wolfgang Schäuble (CDU) and his Bavarian colleague Günter Beckstein (CSU) suggest since quite some time to make it possible to use the German Bundeswehr to assure safety during the Soccer World Championship, while SPD, Die Grünen and FDP strictly oppose this. In their coalition contract CDU/CSU and SPD had agreed on checking the necessity of a change of the German constitution after the Karlsruher judgement of the Air Safety Law."



As usual at first my apologies for my invalid English as it is not my native language. Secondly perhaps a few explanations if necessary, because this concerns me in two ways. Although I am quite out of aviation interest these days (gave up on it because it was too painful for me), I still could not stop listening to the news. I also study political science so I might be able to give a few explanations as I will do right below and add a few bits from the ARD TV report I watched. They questioned a law expert on this and had a few points the article does not mention.

First of all the point of human dignity and its value is article one in the German constitution. The debate about this particular law has been going for over a year or perhaps even more now. The central question has always been whether it is right to weight up few lives against perhaps more lives on the ground (Sept. 11th).

After the 2nd World War it has indeed been fixed in the German Constitution that our military forces may only be used within the country in those special cases the article mentioned. Even the question whether soldiers may guard our soccer stadiums during the World Championship has been a large point of arguement in the parliament and the media during the past weeks.
So the Air Safety Law broke indeed the human dignity paragraph and it broke the other about use of forces within the German borders, too. I should be able to list the exact number of it, I know, but I can look it up and translate if anyone is interested. Got like 4 books with the constitution standing in the shelf two steps away.

The most interesting point in the TV report was the rosen question, what could happen now after the defeat by the court responsible for checking law conformity with the constitution. In fact as the article mentioned, the government parties seem to have counted on losing in a way. The past elections in September have been difficult and SPD and CDU/CSU have written the coalition contract as a large-scale compromise. Their points of view have been somewhat difficult in many matters (probably also this one hence SPD is now majorly against the use of our forces within the country) that this paper has to be regarded as a compromise. I guess the CDU raised this point, because in general changes of our constitution are a large issue. Still a change with a 2/3 majority in our parliament and a vote in the state chamber (which is unfortunately CDU dominated - also a 2/3 majority needed here) could make it possible that our constitution gets indeed changed allowing the use of forces within the country.

Remains only the point to be explained that this law has been made by an SPD/ Die Grünen coalition during the last legislation period. This can be explained by the former very ambitious Inner Affair Minister Otto Schily, who has been calling for similar things like his dear colleague in the US or also in Britain. In general he was calling for larger scale surveillance and sharper anti-terror laws. In some of these points Otto Schily gravely failed though. If you ask me, it's lucky that he did.

The law expert on TV stated though that even a constitutional change might most likely not change anything and will most likely not bring the Air Safety Law back. The argumentation with human dignity might prevent that from happening since this point cannot be overruled by a constitutional change. Most likely the government will not raise the question of this law in its old form again.

I personally think that it was a good decision and also a signal that human life is valued no matter how. That anti terror laws are not everything that counts. The order of argumentation setting the safety of human dignity and human life prior to the other argument about the latter article about use of forces within our borders is also right. Otherwise it would remind me too much of a killer being caught because he illegally parked on the pavement (if you understand the analogy). This way it will be harder if not impossible to introduce this law. Mostly the Bundesverfassungsgericht's decisions are being followed practially and morally. It's the highest instance after all.

Perhaps I am just so happy about the failure of this law, because I wanted to be pilot myself not too long ago and it thereforce concerns me a bit as well. I dunno.

So much about it. I hope you got at least a bit of it and that it was not too confusing. If there are questions I will be glad to answer them if I can. I do not know everything either, but perhaps a few things.

[Avrel]

Better than I said it above with the help of my dictionary. The press release from the court's website.

Original source: http://www.bundesverfassungsgericht....entscheidungen



"Bundesverfassungsgericht - Pressestelle -

Press release no. 11/2006 of 15. February 2006

Zum Judgment of 15. February 2006 – 1 BvR 357/05 –

Authorisation to shoot down aircraft in the Aviation Security Act void

§ 14.3 of the Aviation Security Act (Luftsicherheitsgesetz – LuftSiG),
which authorises the armed forces to shoot down aircraft that are
intended to be used as weapons in crimes against human lives, is
incompatible with the Basic Law and hence void. This was decided by the
First Senate of the Federal Constitutional Court in its judgment of 15
February 2006. The Federal Constitutional Court held that the Federation
lacks legislative competence to issue such regulation in the first
place. According to the Court, Article 35.2 sentence 2 and 35.3 sentence
1 of the Basic Law (Grundgesetz – GG), which regulates the employment of
the armed forces for the control of natural disasters or in the case of
especially grave accidents, does not permit the Federation to order
missions of the armed forces with specifically military weapons.
Moreover, § 14.3 of the Aviation Security Act is incompatible with the
fundamental right to life and with the guarantee of human dignity to the
extent that the use of armed force affects persons on board the aircraft
who are not participants in the crime. By the state’s using their
killing as a means to save others, they are treated as mere objects,
which denies them the value that is due to a human being for his or her
own sake.

Thus, the constitutional complaint lodged by four lawyers, a patent
attorney and a flight captain, who had directly challenged § 14.3 of the
Aviation Security Act, was successful.

The decision is essentially based on the following considerations:
1. The Federation lacks the legislative competence to issue the
regulation laid down in § 14.3 of the Aviation Security Act. It is true
that Article 35.2 sentence 2 and 35.3 sentence 1 of the Basic Law
directly provides the Federation with the right to issue regulations
that provide the details concerning the use of the armed forces for the
control of natural disasters and in the case of especially grave
accidents in accordance with these provisions and concerning the
cooperation with the Länder (states) affected. The armed forces’
authorisation to use direct armed force against an aircraft which is
contained in § 14.3 of the Aviation Security Act is, however, not in
harmony with Article 35.2 sentence 2 and 35.3 of the Basic Law.

a) The incompatibility of § 14.3 of the Aviation Security Act with
Article 35.2 sentence 2 of the Basic Law (regional emergency situation)
does, however, not result from the mere fact that the operation is
intended to be ordered and carried out at a point time in which a major
aerial incident (hijacking of an aircraft) has already happened but in
which the especially grave accident (intended air crash) itself has not
yet occurred. For the concept of an “especially grave accident” within
the meaning of Article 35.2 sentence 2 of the Basic Law also comprises
events in which a disaster can be expected to happen with near
certainty. The reason why an operation involving the direct use of armed
force against an aircraft does not respect the boundaries of Article
35.2 sentence 2 of the Basic Law is, however, that this provision does
not permit an operational mission of the armed forces with specifically
military weapons for the control of natural disasters or in the case of
especially grave accidents. The “assistance” referred to in Article 35.2
sentence 2 of the Basic Law is rendered to the Länder to enable them to
effectively fulfil the task, which is incumbent on them in the context
of their police power, to deal with natural disasters or especially
grave accidents. Because the assistance is oriented towards this task
which falls under the police power of the Länder this also necessarily
determines the kind of resources that can be used where the armed forces
are employed for rendering assistance. They cannot be of a kind which
is, with regard to their quality, completely different from those which
are originally at the disposal of the Länder police forces for
performing their duties.

b) § 14.3 of the Aviation Security Act is also not compatible with
Article 35.3 sentence 1 of the Basic Law. This provision explicitly
authorises only the Federal Government to order the employment of the
armed forces in the case of an interregional emergency situation. The
regulations in the Aviation Security Act do not take sufficient account
of this. They provide that the Minister of Defence, in agreement with
the Federal Minister of the Interior, shall decide in cases in which a
decision of the Federal Government is not possible in time. In view of
the fact that generally, the time available in such a context will only
be very short, the Federal Government will, pursuant to this provision,
be substituted not only in exceptional cases but regularly by individual
government ministers when it comes to deciding on the employment of the
armed forces in interregional emergency situations. This clearly shows
that as a general rule, it will not be possible to deal with measures of
the kind regulated in § 14.3 of the Aviation Security Act in the manner
that is provided under Article 35.3 sentence 1 of the Basic Law.
Moreover, the boundaries of constitutional law relating to the armed
forces under Article 35.3 sentence 1 of the Basic Law have been
overstepped above all because also in the case of an interregional
emergency situation, a mission of the armed forces with typically
military weapons is constitutionally impermissible.

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 the
aircraft 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 of
their 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 and
inalienable rights. By their killing being used as a means to save
others, they are treated as objects and at the same time deprived of
their rights; with their lives being disposed of unilaterally by the
state, the persons on board the aircraft, who, as victims, are
themselves in need of protection, are denied the value which is due to a
human being for his or her own sake. In addition, this happens under
circumstances in which it cannot be expected that at the moment in which
a decision concerning an operation pursuant to § 14.3 of the Aviation
Security 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 shot
down, and thus in his or her own killing, in the case of the aircraft
becoming 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 its
nature of an infringement of these people’s right to dignity. Human life
and human dignity enjoy the same constitutional protection regardless of
the 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 being
treated as such, expresses in a virtually undisguised manner that the
victims 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 the
interest of the state as a whole in case of need if this is the only
possible way of protecting the legally constituted body politic from
attacks which are aimed at its breakdown and destruction also does not
lead 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 Aviation
Security 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 with
the constitution. This is not the case in the case at hand.

3. § 14.3 of the Aviation Security Act is, however, compatible with
Article 2.2 sentence 1 in conjunction with Article 1.1 of the Basic Law
to the extent that the direct use of armed force is aimed at a pilotless
aircraft or exclusively at persons who want to use the aircraft as a
weapon of a crime against the lives of people on the ground. It
corresponds to the attacker’s position as a subject if the consequences
of his or her self-determined conduct are attributed to him or her
personally, and if the attacker is held responsible for the events that
he or she started. The principle of proportionality is also complied
with. The objective to save human lives which is pursued by § 14.3 of
the Aviation Security Act is of such weight that it can justify the
grave encroachment on the perpetrators’ fundamental right to life.
Moreover, the gravity of the encroachment upon their fundamental rights
is reduced by the fact that the perpetrators themselves brought about
the necessity of state intervention and that they can avert such
intervention at any time by refraining from realising their criminal
plan.

All the same, the regulation is void also in this respect because the
Federation lacks legislative competence in the first place."


Comment:
The debate is already going though. Some people within CDU and CSU still do not wish to let go of the thought of German Bundeswehr soldiers guarding soccer stadiums. Perhaps they should rather spend more money on a suffcient amount of police forces (which have suffered from major fund shortening acts). Might come too late for the World Championship, but will perhaps be better for the future.

About this declaration majorly the part about the court not being willing to degrade the crew and passengers of a hijacked airliner to a mere object of a state's action has caught my attention. It was new to me. It's roughly in the middle about one paragraph below the one starting with 2.

The evening news called the court's decision as being a historical one in the court's and the constitution's history.

[Avrel]

It's a rather general debate I think. I agree with you that shooting down such an airliner is no solution. After all here is still the chance that the situation might get under control again. At least some kind of it. I would not wish to declare everyone on such an airplane dead until they really are and it is proven.

Shooting it down might as well inflict large scale damage on the ground anyway.

The part I would mostly be afraid of is the common hysteria. The pictures on the newspaper article showed that small light plane, which circled over Frankfurt's city 2 or 3 years after Sept. 11th. The media was freaking out that day as well in Germany as international. I remember watching CNN broadcasting live because of an Ultralight airplane... It is silly, but I wonder how much damage that one would have done at all. There are single pilot airplanes crashing down on houses almost every day somewhere in the world, aren't there? Still no one complains about it. That one had been hijacked by some dude, all right, but the media reaction was in no relation to the potential damage. Correct me if I am wrong. It was all just about Sept. 11th.

So there have also been cases I think in which just the contact to an airliner broke off. All of you might know better about that than I do. Still there have also been overreactions in the military.
I think the court's decision will at least prevent this from happening. At least in Germany, because it seems that we are quite unique with our judgement. Maybe we are not patriotic enough or so.

About the guns in the cockpit part I definitely agree that I would rather have that one than a missile shot at an airplane, but honestly I like neither of it.
I think there might be loads of pilots for whom it is as impossible as it would be for me.

[ORAC]

This might prevent the issuing of an order to a pilot to shoot down an airliner, But what will be the effect on the right of self defence? IIRC, a pilot who believes he, or anyone he is protecting, is under attack, he has the right to act in self defence.

If a German fighter pilot believed a hijacked airliner was aiming to fly into a stadium and engaged it, would he still be able to that defence in court after this ruling?

[Avrel]

ORAC: Afaik that is the so called problem of this decision, which has been thematised as well. How do we deal with any attack occuring? It is the question, which the court gradually left open for politics, just limiting the capability of heavy weapon use.

A single fighter pilot would NOT be able to defend this, because such an order will never be issued by his superiors after this court judgement and therefore it would be an illegal action being performed by the fighter pilot. In the end he would be condemned to watch it. He could of course shoot it down, but he would be dragged in front of a court material for that one and additionally have to live with it.

They interviewed a high rankining Bundeswehr officer on the question how they feel about it and he said that he feels relieved and that his men feel the same way. He said no fighter pilot on this world would like to be ordered to pull the trigger to fire on a civil airliner.
It has happened before and my guess would be that they mentally never recovered from it. So I am not sure whether any of them would fire on a civil target without receiving order to do so. The funny thing about it was that the Bundeswehr official mentioned a civil airliner with 130 people on board as example. Dunno what he might say about an A380 with its full amount of passengers and crew then.

The law generally left open a grey zone, because it limited the state's action capabilities without offering any solution if the case X ever occurs in our airspace. It just tells what the government may not do, but not what it should do instead. The news reporter expressed it nice way during the evening news: "I guess it's the legitimate price we have to pay for our democratic freedoms and the value of human dignity." I just have the wish that others might respect those too (what they of course won't do - I know I am naive).

[You Gimboid]

Why not just keep the door locked and maintain control of the airplane and R/T contact with the ground?

With my unflappable faith in humanity, surely even the Yanks wouldn't shoot you down if the flight crew still had complete control of the airplane, if not the cabin?

Or do anyone kno difrent?

[moosp]

This is at last a sensible approach to the problem. Yet again Europe comes up with logic, when others apply emotive reaction.

Oh, and BTW "You Gimboid", the answer to your query is yes, they will shoot you down even if you have full control of the aeroplane. That is in their rules of engagement, and in the control of their military command structure, leading to the Commander in Chief.

Get used to it. From the producers of the Good Ship CG49 Vincennes, we bring you...the next exciting episode.

[Evening Star]

Speaking as SLF, if I may be permitted to join the debate for a moment, the 'do we shoot down' dilemma is somewhat fighting yesterday's battle. Since 11 September 2001 it is very unlikely, as demonstrated by the 'Shoebomber' incident amongst others, that any SLF are going to suffer a potential hijack without taking action. For certain, now knowing how a hijack could end, I will not take that fate without trying something different and I am sure I am not alone in that thinking. And the terrorists know that, so that anybody next planning to use an aircraft to highlight their vainglorious cause will either have to stack the aircraft with terrorists (logistically unlikely?) to control SLF who will take action, or come up with something original and unexpected. I suspect, in the aftermath of the next terrorist outrage, the 'original and unexpected' will render irrelevant any shoot down option.