Guilty or Not Guilty

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Back in graduate school we were required to watch a movie entitled “Terror” and write a critique about it.

The story happened in March 26 of 2002. A commercial plane carrying 164 passengers was hijacked by a terrorist. This terrorist was frightened that because of the killings committed by the Germans to his tribe, the Muslims, they (all living) too shall die the same way his tribe died.

The pilot reactor transmitted that two venues are being targeted: the old Olympic Stadium, where there were 35,000 concert viewers and the Allianz Arena, where 70,000 football visitors were present. The duty controller screen showed that the trajectory of the private plane was heading towards Allianz Arena. Before the plane could land, Major Larry Koch, decided to shoot the private plane to avoid mass killings of 70,000.

He was then arraigned in court and accused of multiple murder under Sec. 211 (2) group 2 variant 3, 52 (1) of Criminal Code in Germany.

The issue in this case is whether killing of 164 people justify saving the 70,000 other lives? Was it right to kill some to save many?

The stakeholders in the whole incident were as follows:

1. the defendant;

2. the defendant’s lawyer;

3. the prosecutor;

4. the witnesses;

5. the National Situation and Management Center for Security in Airspace;

6. the terrorists;

7. the German citizens;

8. the pilot of the private plane;

9. the civil air traffic control;

10. the state and federal police and/or intelligence services.

However, I will confine them in the main actors within the court: the defendant, his lawyer, the prosecutor, the witnesses and the audience who were representative of the German citizenry.

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Larsh Koch (defendant) – He was a 32-year-old pilot of Luftwaffe who pleaded guilty of shooting the plane threatened by a terrorist to fall in the middle of the football and killed 164 passengers. He contended that he did it to save the 70,000 other lives in the football stadium, who would probably die. His basic contention was based on the principle of RAISON D’ETRE. Under this doctrine, he did what he thought was right as a soldier who took his oath to defend and protect the lives of the German people under threat. He was trained to save people’s lives and if he did not, the Constitution then was giving the terrorists an opportunity to kill his fellowmen.

Lawyer of Larch Koch – He requested for acquittal and defended his client by arguing that under the Aviation Security Act of 2005, the Secretary of Defense can actually order the use of firearms against a passenger machine for as long as it is under a justifying circumstance. However, the Federal Constitution Court reversed the most important paragraph of the Act, accordingly, allowing the state to kill its people. He also emphasized that this opposition of the court to the Act is contrary to the provision of the German Constitution that life shall never be weighed against life. He further proved that in many instances the highest court have decided in favor of the “lesser evil” because the Constitution is supposed to protect people from enemies and not be used as attack on people’s lives, especially in times of war. He said there are no winners in a war. We all are victims, a fact that has to be accepted.

In the case at bar, Koch cannot choose not to kill because there definitely will be casualties, either the 164 ot 70,000. The only option that Koch had was to change the situation, and that was to save the 70,000 over the 164.

Prosecutor – She stood by the Rule of Law and requested for the conviction of the defendant for murder of 164 people. She argued that Major Koch deliberately violated the order of the highest court. Different people may think that our conscience, morality, natural law or supernatural emergency may allow us to do what is right, but they do not. They instead make us fickle-minded and allow us to make our own laws. This puts our society in chaos. Therefore, according to her, men need a principle that will put all chaos in order and that the highest principle is the Constitution. The Constitution according to her incorporates the dignity of man, as he is considered as subject not an object. The constitution states that human dignity is inviolable, but when Koch measured life based on numbers, he took away the dignity of the 164. He took away from them their decision-making possibility.

Christian Lauterbach (witness) – He was a Duty Controller on duty when the shooting happened. He narrated that it was the private plane pilot who delivered the message of the terrorist. He said that the terrorist had NO specific goal but was possible in the cities of Germany. He said too that it was the pilot who declared that thousands of people would die. His statements were unreliable particularly when he said that they gather data from civil air traffic control, state and federal police and/or intelligence services through primary and secondary radar. He emphasized their reliance of “renegade” too. This refers to the civil airliner used by air pirates for a terrorist attack. He admitted that abnormalities happen such as when airplane deviates from its course, automatic recognition system is off or radio contact is not possible. During that day, he clearly knew no contact was possible.

Female witness – She believed that the killing was deliberately committed by Koch. Her concern was more of how she would appease and explain the sudden death of her husband to her 8-year-old daughter.

German citizens – They would have to weigh the whole circumstance based on what they heard in the court and judge accordingly. Whichever could have happened, whether it was the 164 or 70,000 that was saved, the fact that there was probability of death, puts threat on their lives. They would have to doubt, what really is the purpose of the German Constitution towards life and human dignity?

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The approach was traditional or typical in a court room, where there was examination of the statements of the defendant and witnesses through question and answer. The fiscal and en banc justices were all present at the same time. The setting manifested a speedy trial. I like the way the judge did his role because he was particular about the motivation and stated that the reflections of the defendant were important, particularly that they reconcile with his legal concepts.

I find it unusual because here in the Philippines, there are several levels of trial. It begins with a complaint with prosecutor’s office. The prosecutor then conducts a preliminary investigation. If the prosecutor finds a probable cause for the complaint, the case is forwarded to sala of the judge. The judge’s task is then to determine whether the defendant is guilty beyond reasonable doubt. The judge’s decision is appealable until it reaches the Supreme Court, where an En Banc finally decides on a case. These levels justify why we have delayed justice or even undecided cases to decades.

The leadership of judges is tried in situations like this. If I were a judge, I would try and decide cases using my head and heart. I would make sure there is a balance between the two. I would not just use my head to rationalize provisions of the laws, rather use my heart to try to understand where the defendant is coming from, especially if he/she is not really of a criminal character. I think it is important to reconcile what my purpose is as a judge and my general purpose of existence.

I think our system must make an alignment between our professional oaths and the provisions of the law. Sometimes, the reason our world is chaotic is because we do not know what our purpose is. If the judge must make his decision, he must think of the consequences to all the stakeholders, not just to the justice system.

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