FLUG REVUE April 2006: German supreme court rules on terrorist shootdowns

April 2006

NO SHOOTDOWN OF SUSPECTED AIRCRAFT ALLOWED IN GERMANY

By Volker K. Thomalla

Legislation allowing civil aircraft in Germany to be shot down in future to prevent a possible terrorist attack has been overturned. On 15 February the Federal Constitutional Court passed judgement on the Aviation Security Act which was passed in the last legislative period of the German Bundestag.

With impressive clarity the constitutional judges of Karlsruhe overturned the Act (reference 1 BvR 357/05). The judges objected particularly to paragraph 14 of the Act, which empowered the armed forces to shoot down any aircraft which were to be used as weapons in crimes against human lives. They interpreted this as a clear violation of the fundamental right to life and the guarantee of human dignity enshrined in the German Basic Law. By killing passengers on board the aircraft who were not participants in the crime as a means to saving others, the state would be treating them as mere objects. This would be to deny them the value that is due to a human being for his or her sake. Seldom have the constitutional judges delivered such a slap in the face of the lawmakers as in the case of the Aviation Security Act.

The pilots' union, Vereinigung Cockpit (VC), immediately welcomed the decision of the constitutional judges, as it forsaw major problems in establishing beyond doubt in a genuine case whether terrorists were really at work or not. In their view, the time pressure that would apply in such a situation would increase the likelihood of a false assessment, with fatal consequences.

The judgement of the Federal Constitutional Court has not, however, made flying any less safe, but quite the opposite. Nor is it true that the judges have “to all intents and purposes condemned the state to have its hands tied”, as the Armed Forces Federation lamented in their initial response. Since the terrorist attacks in the USA of 11 September 2001 – on whose account this law was passed – the security situation in air transport has dramatically improved. Airliner cockpits today are armoured fortresses, into which it is virtually impossible any longer to gain access by force. The airports have invested millions and installed new surveillance and checking devices. Today it is no longer possible for anyone to get close to a plane without heavy checks, much to the regret of airport personnel. And, as a passenger, memories of the era when one proceeded to the gate with only a simple search are rapidly fading. Even without the Aviation Security Act, security has been improved in the right place, namely, on the ground. The primary goal of the security efforts must be to prevent terrorists from getting on board the aircraft. Once they are inside, it is no longer possible to arrest a catastrophe, even if fighter aircraft are deployed.

From FLUG REVUE 4/2006

Last updated 10 March 2006

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