German Constitutional Court prohibits shooting down hijacked passenger planes

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Wednesday, February 15, 2006

The Bundesverfassungsgericht in Karlsruhe

The Bundesverfassungsgericht has declared legislation which would have allowed the German Air Force to shoot down hijacked passenger planes unconstitutional.

The Luftsicherheitsgesetz (literally: Aviation Safety Act) was passed in January 2005 and mainly dealt with uncontroversial matters concerning the safety at airports. One provision however allowed the minister of defense to order the Air Force to shoot down a hijacked plane as a last resort if it could be presumed that that plane would be used as a weapon to kill people on the ground.

The court based its decision to strike down that provision on three considerations:

1) It found that the federal government lacks the legislative competence for that part of the act under the Basic Law, the German constitution, which gives the states the main authority to fight disasters and thus, as the court, implied terrorism. Only the federal cabinet acting as a whole could overrule that in certain cases and as the act specifically gives only one minister, the defense minister, that authority it is unconstitutional.
2) The court also found that the act is incompatible with the constitutional right to life and the human dignity. The act would turn passengers and crew of a hijacked plane, victims themselves, into "objects"--- not only to the terrorists, but also to the state, which does not have the authority to kill innocents. If their deaths would be used to save others they would be reduced to mere "things" at the pleasure of the state. Further, the court believes that the arguments of the federal government, saying that passengers in such a situation would die anyway, are invalid, as human lives deserve protection regardless of the expected duration of their existence and that it is impossible to fully assess the situation leading to an eventual invocation of the act.
3) The third consideration concerned planes manned solely by terrorists. Shooting down those would not violate the right to life and human dignity as in 2), however as described under 1) the federal government lacks competence to pass such legislation.


Gerhart Baum, a former interior minister and one of the plaintiffs, hailed the decision as "historic" and said that were it not for that ruling "we would have martial law while fighting crime".

Defense minister Franz Josef Jung said "it is our duty to protect the citizens from terrorism". He announced that he would consider lobbying to change the Basic Law.

The ruling is expected to also have bearing on current discussions to extend the mandate of the Bundeswehr (German military forces) to help police large events like the upcoming soccer world championship in Germany, as it implicitely reaffirms the separation of armed forces and the police.