Air Force may not pick off passenger planes

[Franconicus]

The German supreme court stopped a law that would have allowed the Bundeswehr to shoot down civil planes in cases like 9/11. It said that the government is not allowed to sacrifice innocent lifes and that the law violates the right to live and dignity of man.

What do you think?

[Fragony]

Plenty stupid, that is what I think. What else can you do when someone decides that skyscrapers polute the horizon?

[econ21]

I think it is a mistake.

Firstly, I can see situations in which shooting down a plane would be justified. The sad fate of the 4th plane in 9/11 is one case in point. If the passengers did even inadvertently cause the plane to crash in a field ("let's roll"), in some way I think they did not die in vain.

Secondly, I think the threat of such action would be useful as a deterrent in some hijacking cases. If fighters buzz a jet and the terrorists know that legally they are invulnerable, it is very different from if they think they are sitting ducks.

I hazard it might even deterr some hijackings from happening in the first place. It's one of those cases where having a hardass willing to press the button may be a smart move even for an admirably restrained nation such as modern Germany.

[Papewaio]

How many passenger jets would it take to become an ace? :dizzy2:

A bit stupid tying ones hands. Better to have a general ethos then a case by case law.

Mind you considering the case of "Honest he had a large jacket, back pack and was running away vs pinned down and in normal clothes... so we shot him".

I can't say I am really happy with the idea of the military shooting people they suspect might on the off chance be terrorists or just energetic tradesmen....

[Templar Knight]

Those innocent lives are going to be lost anyway if the terrorists wish to crash into a building, so obviously shooting it down over a safe area would save lives in the long run.

[Haudegen]

I think the court´s decision is not that dramatic. In fact their reasoning is quite good.

http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705.html

1. The constitution doesn´t allow the military to be used for internal affairs.

2. The court assumed that it not possible to identify a hijacked plane in time. Therefore all decisions that the government would make on the basis of the "Luftsicherheitsgesetz" are too unsafe to justify the loss of innocent lives.

3. Most important thing in my view: The supreme court does NOT say, that a fighter pilot who is at the right time at the right place to stop a hijacked plane, must be prosecuted. (see No. 130 in the court´s decision). This means: Legally the fighter pilot is in the same situation like for example a police sniper who shoots a criminal that has taken hostages: As a representative of the state they have no permission to shoot. But as private persons they can not be punished because of the justifications that German crimninal law gives to everyone (Notwehr, Nothilfe, Übergesetzlicher Notstand).

Therefore any hijacker in German airspace must take into account that he CAN be shot down by the airforce, although the supreme court doesn´t say it loudly.

On the other hand the supreme court´s decision has avoided to create a precedent that allows the state to kill a few people for the benefit of a majority of other people. Regarding recent discussions about the question, if German police should be allowed to torture in certain situations, this is a good sign, I think.

[Ser Clegane]

Those innocent lives are going to be lost anyway if the terrorists wish to crash into a building, so obviously shooting it down over a safe area would save lives in the long run.

The big problem is the if - unless you have several planes of which some already have crushed into buildings (like on 9/11) it will be somewhat difficult to be sure (or even close to sure) about the hijackers' intentions.

[rory_20_uk]

In essence, the ruling is completely pointless: Yes it is sort of illegal, but if the pilot is under the impression that it is worthwhile then it's doable... And proving one way or another from the wreckage that there was a threat ir not is impossible.

Planes that are out of the flight path and have been told, and are heading towards somewhere which is densely populated... well I'm afraid that that action needs to be taken on the "best guess"

~:smoking:

[Philippus Flavius Homovallumus]

The decision looks sound, it avoids a precident but leaves the pilot wiggle room to do the right thing.

[Templar Knight]

The big problem is the if - unless you have several planes of which some already have crushed into buildings (like on 9/11) it will be somewhat difficult to be sure (or even close to sure) about the hijackers' intentions.

Of course, the hijackers intensions might well be to land at an airport and issue demands. If they have killed the pilots however their intentions may be more sinister.

[Haudegen]

In essence, the ruling is completely pointless: Yes it is sort of illegal, but if the pilot is under the impression that it is worthwhile then it's doable... And proving one way or another from the wreckage that there was a threat ir not is impossible.

Planes that are out of the flight path and have been told, and are heading towards somewhere which is densely populated... well I'm afraid that that action needs to be taken on the "best guess"


I´d rather say making laws for such unique scenarios is pointless. In these situations it all depends on a few people who make decisions. If they are really convinced that a plane poses a threat they can shoot it down and after that their responsibility must be checked. To make the to decision to shoot is really a question of conscience for these people.

Therefore I don´t think it´s good if there was a procedure from a "Luftsicherheitsgesetz" that the airforce would automatically execute.

[Adrian II]

1. The constitution doesn´t allow the military to be used for internal affairs.Then why bother at all with this ruling?
2. The court assumed that it not possible to identify a hijacked plane in time.That is quite an assumption for a court of law.
Therefore all decisions that the government would make on the basis of the "Luftsicherheitsgesetz" are too unsafe to justify the loss of innocent lives.Even if the German government has clear indication that there is a nuclear device on board? And I daresay the sixteen justices would change their minds real quick if a hijacked plane was about to crash into Schloßbezirk 3, 76131 Karlsruhe.
Legally the fighter pilot is in the same situation like for example a police sniper who shoots a criminal that has taken hostages: As a representative of the state they have no permission to shoot. But as private persons they can not be punished because of the justifications that German crimninal law gives to everyone (Notwehr, Nothilfe, Übergesetzlicher Notstand).So the decision on a possible shoot-down is the sole responsibility of the pilot?

This ruling looks like total nonsense to me.

[Ser Clegane]

Then why bother at all with this ruling?
Actually the Bundeswehr can be used internally - e.g., in natural disaster situations or very heavy accidents. The administration assumed that this would also cover a hijacking in which the plane might be used as a weapon - the Court disagreed with this view

That is quite an assumption for a court of law.
The Courts expands on this assumption starting in paragraph 125 - assuming that a minister cannot say with absolute certainty that the passengers are going to die anyway seems to be quite reasonable - the opposite would be quite an assumption


Even if the German government has clear indication that there is a nuclear device on board?
Then the law should specifically cover such an exceptional situation


And I daresay the sixteen justices would change their minds real quick if a hijacked plane was about to crash into Schloßbezirk 3, 76131 Karlsruhe
(EDIT: removed last part from quote)

Completely irrelevant


This ruling looks like total nonsense to me.
The ruling seems to be completely in line with our constitution

[Adrian II]

Completely irrelevantNot so fast, please. If I understand this ruling correctly, German soldiers are in no way allowed to shoot down the plane, give the order to shoot it down, contribute to its shooting down etcetera. Only a civilian, who just happens to make an afternoon stroll in his Tornada ADV with IWKA-Mauser 27-mm cannon and Skyflash air-to-air missiles, can decide (1) that there is a plane hi-jacking going on, and (2) that he can make a citizen's arrest on the hijackers should he fancy it?

[Ser Clegane]

Not so fast, please.

I was indeed too fast - my comment was only referring to the first part of the quote - I removed the part it did not relate to.

...


Although, thinking about it - the other part is actually also irrelevant in this case.
It was the job of the Court to decide about the new law - which it did. The other situation you mention has nothing to do with the law that was subject of the court ruling.

[Adrian II]

The other situation you mention has nothing to do with the law that was subject of the court ruling.The last part was mentioned by Haudegen, we better let him explain then.

[Ser Clegane]

The last part was mentioned by Haudegen, we better let him explain then.

The part Haudegen refers to is just saying that the Court's decision does not deal with the hypothetical situation of a fighter pilot who decides to shoot the hijacked plane without getting the order.
The Court's decision makes clear that only the law itself (which does not cover such a situation) is subject to it's decision - the hypothetical situation that is described above is subject to previous court rulings (which I do not know in details) which are not affected by this Supreme Court ruling.

[Haudegen]

Then why bother at all with this ruling?

Because there have already been discussions underway to change the constitution in this point. After such a change in the constitution the question might rise again. However a change regarding the dignity of man is unthinkable (Article 79 III Grundgesetz).


That is quite an assumption for a court of law.Even if the German government has clear indication that there is a nuclear device on board? And I daresay the sixteen justices would change their minds real quick if a hijacked plane was about to crash into Schloßbezirk 3, 76131 Karlsruhe.

The court´s assumption is based on statements from the German pilots association "Cockpit".


So the decision on a possible shoot-down is the sole responsibility of the pilot?

This ruling looks like total nonsense to me.

The court says that German government can´t order a pilot to shoot down a plane full of innocent people. This is because of the principles of man´s dignity and right to live in our constitution.

But it´s true on the other hand that the pilot in the mentioned situation lacks legal safety because he can´t pledge that he just executed orders. He must prove that he had reasons to assume that there was imminent threat for many other innocent people and that he made a decision based on his conscience. This is called "Übergesetzlicher Notstand".

Honestly I´m hoping that no pilot will ever face such a choice. But I think it´s important that any potential hijacker gets the message that he CAN be shot down.

[Adrian II]

Because there have already been discussions underway to change the constitution in this point.Thanks for the elaboration, Haudegen. I understand some points better now, though not the last one.

You write that the pilot 'must prove that he had reasons to assume that there was imminent threat for many other innocent people and that he made a decision based on his conscience'.

What is a pilot to do when he gets the message from ground control that the plane he has been tailing for the last two minutes has been hijacked and will probably be made to crash into the Bundestag? Go back and land, listen to all the tapes, speak to experts, investigate the suspects' police files, maybe learn Arab or Egyptian to make a better judgment? And then -- still ever so quickly! -- run over to the Bundestag to count heads, compare the number to the plane's passenger list, and then present the Bundesverfassungsschutz with an informed decision on paper before pulling the trigger? :dizzy2: ~:)

[Haudegen]

The pilot will have to look at any information available to him, including information from ground stations. He must decide in a reasonable way whether he believes there is a real threat. And make his decision based on this. More than this can not be expected from any pilot, I think.

[Devastatin Dave]

You can't shoot down these planes!!! That would be religious discrimination by not allowing these people to participate in the basic tennaments of thier faith. :book:

[Ser Clegane]

What is a pilot to do when he gets the message from ground control that the plane he has been tailing for the last two minutes has been hijacked and will probably be made to crash into the Bundestag? Go back and land, listen to all the tapes, speak to experts, investigate the suspects' police files, maybe learn Arab or Egyptian to make a better judgment? And then -- still ever so quickly! -- run over to the Bundestag to count heads, compare the number to the plane's passenger list, and then present the Bundesverfassungsschutz with an informed decision on paper before pulling the trigger? :dizzy2: ~:)

The point is, that what you describe above is an issue of criminal law and therefore not subject to the ruling of the Supreme Court in this case.

[Kaiser of Arabia]

Not like Germany has much to worry about, but yeah, mistake.

Whatever, though. I doubt AQ would try the tactic again any time soon. Mix it up. It'd be like if you, as a general in the 7 years war, used the Oblique formation in every. last. battle.

Eventually the enemy would figure it out and counter it. So you gotta mix it up.

You have to assume AQ has at least some form of tactical knowlage.

[Husar]

Thanks for all the explanations, Haudegen, there were quite a few things I didn´t know before about our law. :)
And I also want to say that our Supreme Court is one of the few institutions here in Germany that I still trust, most of it´s decisions I heard about sounded pretty wise and just to me.:2thumbsup:

[Evil_Maniac From Mars]

Not so fast, please. If I understand this ruling correctly, German soldiers are in no way allowed to shoot down the plane, give the order to shoot it down, contribute to its shooting down etcetera. Only a civilian, who just happens to make an afternoon stroll in his Tornada ADV with IWKA-Mauser 27-mm cannon and Skyflash air-to-air missiles, can decide (1) that there is a plane hi-jacking going on, and (2) that he can make a citizen's arrest on the hijackers should he fancy it?

Mind if I quote you? :2thumbsup:

[Adrian II]

[QUOTE=AdrianII]Not so fast, please. If I understand this ruling correctly, German soldiers are in no way allowed to shoot down the plane, give the order to shoot it down, contribute to its shooting down etcetera. Only a civilian, who just happens to make an afternoon stroll in his Tornada ADV with IWKA-Mauser 27-mm cannon and Skyflash air-to-air missiles, can decide (1) that there is a plane hi-jacking going on, and (2) that he can make a citizen's arrest on the hijackers should he fancy it?[/]QUOTE]

Mind if I quote you? :2thumbsup:Go right ahead. :bow:

[Evil_Maniac From Mars]

Excellent, that one's going in the database.

[Louis VI the Fat]

I think it is a mistake.

In this particular case:

Let's take the reasoning of the German Supreme Court to it's logical conclusion: the German army is at the moment not allowed by law to shoot down a terrorist plane, with a nuclear bomb on board, and headed for Berlin, if the terrorist managed to take even a single innocent civilian on board.
Their absolutist interpretation of article 2.2 of the German constitution - 'Everyone has the right to life and to inviolability of his person' - means that in this case they would have the 6.5 million inhabitants of Berlin murdered to uphold the 'right to life'. Which is bizar.

In general:
I think it is about time for Germany to accept that it is 'a normal country, with an abnormal history'. The German constitution is admirable. Noble even. As has been (in general, or at least by comparison to others) the behaviour of the German Bundesrepublik in the past sixty years. Germany has long since rehabilitated itself. Just as Germany by now should be able by to discard references to it's past in international diplomacy as nothing short of emotional blackmail, so it is also time for Germany to assume the responsibilities that a normal democracy has. That means participation in peacekeeping missions, and sometimes military countermeasures against acts of terrorism.

It is 2006 now. It's another world from 1945. The rigid interpretation of the articles in the constitution about the role of the Bundeswehr had a historical purpose. That purpose has been served.

The German constitution also speaks about Germany being conscious of it's responsibility before God and Men, and being animated by the resolve to serve world peace as an equal partner in a united Europe. Responsibility as an equal partner in Europe means that if in the example above that plane wasn't headed for Berlin, but flew over German airspace to Strasbourg or Vienna, Germany should not exclude beforehand the full range of countermeasures.

[Haudegen]

I understand your point very well. But I still think it is better the way it went.

I don´t think that highly hypothetical situations like these are a good reason to abandon our principles. Upholding principles is perhaps the best way to counter fanatical terrorists.

By the way: Did you know that the German constitution is not the only law that puts extreme value in the dignity of man? The European convention on human rights (ECHR) is similarly strict.

Let´s assume there was a nuclear bomb hidden in Berlin, Paris or London and the evil terrorist Mr X is the only one who could defuse it in time but he refuses to do it. Is police allowed to torture him? No! It´s prohibited by Article 15 I, II and Article 3 ECHR even if the existence of the entire nation was at stake. Would the law be followed in such a case? I don´t know, but I hope we´ll never have to find out.

[Kaiser of Arabia]

If sacrificing one man's dignity to save thousands, if not millions, is illegal, then I fear for Europe.

[Ser Clegane]

If sacrificing one man's dignity to save thousands, if not millions, is illegal, then I fear for Europe.

Millions??? :inquisitive:

Actually I thinks it's exactly this kind of dramatization and completely out-of-range fantasy scenario that some people are making up that makes the decison of the Court completely correct.

What we certainly do not want, is a situation where a hijacking occurs and somebody starts running around in circles screaming

"OMG! OMG! OMG! they might have a nuke on board OMG! OMG! OMG! ... we better shoot the plane down before millions get killed"

Only to realize afterwards that somebody only hijacked a plane to get some attention after his girlfriend dumped him.


A nuke on a hijacked plane??? If terrorists get hold of a nuke, do you seriously believe that they would try to smuggle it aboard a passenger plane to blow it up in e.g., Berlin?

Quite an intricate approach, wouldn't you say?

[Louis VI the Fat]

Did you know that the German constitution is not the only law that puts extreme value in the dignity of man? Sure. All constitutions are full of lofty ideals. We, non-Germans, are just better at finding excuses to not have to live up to those principles. :balloon2:


Upholding principles is perhaps the best way to counter fanatical terrorists. This, in the end, is probably very true.


Today's 'Der Spiegel' has a somewhat unnerving article about our topic. It served in part as an inspiration for my previous post.
Tödliche Gefahr über Europas Himmel
(http://www.spiegel.de/politik/deutschland/0,1518,401533,00.html) In German, sorry.

[Husar]

Not so fast, please. If I understand this ruling correctly, German soldiers are in no way allowed to shoot down the plane, give the order to shoot it down, contribute to its shooting down etcetera. Only a civilian, who just happens to make an afternoon stroll in his Tornada ADV with IWKA-Mauser 27-mm cannon and Skyflash air-to-air missiles, can decide (1) that there is a plane hi-jacking going on, and (2) that he can make a citizen's arrest on the hijackers should he fancy it?
First, the Skyflash is old, afaik.
Second, we could hand out RPGs, SA-7s or Stinger launchers to civilians so they won´t need to get a Tornado. Or what about equipping busses and trains with triple A? We gotta be prepared...:idea2:

[Louis VI the Fat]

A nuke on a hijacked plane??? If terrorists get hold of a nuke, do you seriously believe that they would try to smuggle it aboard a passenger plane to blow it up in e.g., Berlin?
No, they wouldn't. They don't need to either.

They could suffice with taking along along one civilian on any plane of their choice. Buy a small plane, put a dirty bomb in it, take off from an improvised airstrip in Chechnya, take just a small baby on board with you, and the German airforce is not allowed to shoot it.

Yes it is an intricate approach. Bizar, outrageous, almost unbelievable. But so was 9/11.

Anti-terrorism measures should be designed to not only to stop what is to be expected, but, perhaps even more so, the unexpected.

[Adrian II]

(..) dramatization (..) completely out-of-range fantasy scenario (..) screaming "OMG! OMG! OMG! they might have a nuke on board OMG! OMG! OMG! ... we better shoot the plane down before millions get killed"Calm down, Ser Clegane. ~:)

Certain scenarios have to be taken seriously. Even that of a nuclear device being smuggled onto a plane in another country where security is lax or totally corrupt, transported across various borders and brought to explosion above a German soccer stadium. It is quite feasible. Sure, it is a nightmare scenario. The opposition, as far as we know, likes to think in terms of nightmares. And if recent German history teaches us anything, it is that we should not entertain naive notions about the limits to human cruelty and fanaticism.

I still find it absurd that (1) a court decides in advance that the authorities can not establish whether a hijacking is going on, and (2) the decision to shoot the plane down is left up to the pilot.

I have nothing against the lofty principles in the German Constitution. I just don't think they are served by this ruling.

[Ser Clegane]

Calm down, Ser Clegane. ~:)

I am calmed down (amazing what 8 hours of sleep can do to you :2thumbsup: )


Certain scenarios have to be taken seriously. Even that of a nuclear device being smuggled onto a plane in another country where security is lax or totally corrupt, transported across various borders and brought to explosion above a German soccer stadium. It is quite feasible.

They could suffice with taking along along one civilian on any plane of their choice. Buy a small plane, put a dirty bomb in it, take off from an improvised airstrip in Chechnya, take just a small baby on board with you, and the German airforce is not allowed to shoot it.

Actually I am not even sure if such a situation is relevant for this particular law.
Such situations - especially the second - could be seen as the violation of German airspace with an armed aircraft. Other laws might apply in such situations - but I have to admit that I am not familiar enough with the legal situation to confirm this (I will have to check if I can find information on such a scenario).


I still find it absurd that (1) a court decides in advance that the authorities can not establish whether a hijacking is going on,
Firstly, the Court didn't say that the authorities are not able to establish that a hijacking is going on - it says that the authorities cannot establish with certainty that the hijacked plane is going to be used to kill people on the ground - and that assumption by the Court is certainly not more absurd than the assumption that the authorities can tell that is is the case.
The Luftsicherheitsgesetz in the current form just leaves too much wiggle room for the authorities.

(2) the decision to shoot the plane down is left up to the pilot.
Again - this has nothing to do with the ruling of the Court, regarding this situation the Court merely points out that its ruling does not affect a situation that already existed previously and that would have continued to exist even if the Luftsicherheitsgesetz became effective.

Ultimately, if a situation occurs, in which the authorities are sure that e.g., a nuke is going to be used - I think we all know exactly what is going to happen: a nuke carrying plane would be shot down, and then we will have a discussion about the legal situation afterwards

The ruling of the Court however, prevents authorities from hiding behind a law that leaves too much wiggle room when it comes to interpreting a potentially dangerous situation - and, personally, I feel very comfortable with the Court's decision.

[Ser Clegane]

BTW - one thing to add regarding the "the pilot has to decide" issue.

The Court ruling merely says that if a hijacked plane is shot down, that this (the shooting and the order to shoot) would be subject to existing criminal law considerations and that this crminal law is not subject of the Court ruling regarding the Luftsicherheitsgesetz.

So the assumption that the burden to decide whether to shoot or not is transferred to fighter pilots is completely wrong.

[Adrian II]

(..) it says that the authorities cannot establish with certainty that the hijacked plane is going to be used to kill people on the ground(..)Okay, call me an ass and chase me around Karlsruhe in tar and feathers, but I still don't understand the rationale behind this.

Of course no government official can establish with absolute certainty that a place is going to be crashed on (or a nuclear device exploded over) a sensitive target. These situations are always judged in terms of risks. And the point, I think, is that procedures should reflect that and allow for a degree of uncertainty. The evaluation of such situations is the competence of the Executive, not the Judiciary.

EDIT
Scrapped pilot comment after reading your edit above.

[Ser Clegane]

I still don't understand the rationale behind this.

The rationale is that the Court did not want to provide a legal carte blanche for authorities to decide that the lives of one group of (civilian and innocent) people can be sacrificed to potentially save the lives of another group of people.

In addition the Court sees the risk of overreaction

Die Gefahr bei der Anwendung des § 14 Abs. 3 LuftSiG liege infolgedessen darin, dass der Abschussbefehl auf ungesicherter Tatsachengrundlage zu früh erteilt werde, wenn der Einsatz von Waffengewalt im Rahmen des zur Verfügung stehenden, im Regelfall äußerst knappen Zeitfensters überhaupt noch rechtzeitig mit Aussicht auf Erfolg und ohne unverhältnismäßige Gefährdung unbeteiligter Dritter vorgenommen werden solle. Damit ein solcher Einsatz wirkungsvoll sei, müsse deshalb von vornherein in Kauf genommen werden, dass die Maßnahme möglicherweise gar nicht erforderlich sei. Es werde mit anderen Worten häufig wohl mit Übermaß reagiert werden müssen.
Considering the shooting of the innocent guy in London, I would say that this is a very realistic risk.

OTOH, the Court makes clear that if a shooting occurs the backdoor that Haudegen described is left open.

[Franconicus]

Thank you for your statements. I agree with all of them. However, I do not think that there is a satisfiable solution. I am glad that the judges stated (at least that is what I understood) that the government is not permitted to say we kill intentionally 100 men to save maybe 5,000. This relativises the value of the single life and violates the dignity.

I have to say that the Supreme Court is one of those few German institutions I am proud of. For them the principles of the constitution are higher than political realism.