Bernhard Schlink on the renewed German debate on shooting down hijacked planes

A new discussion on the legality and legitimacy of shooting down a hijacked passenger plane that might be used to attack objects on the ground was sparked last week (16.9.-21.9.2007) in Germany. It started with a statement of German Minister of Defense, Franz Josef Jung that he would have to order such a shooting in the worst case scenario relying on the concept of a ‘supra-legal state of emergency’ (übergesetzlicher Notstand). He said, however, that he would only order those pilots who are willing to do so. He made this statement in spite of the ruling of the German Constitutional Court of February 2006 declaring void the respective chapter in the German Aviation Act. Jung said, however, that the Court left the possibility of shooting down a plane open. His aim is therefore to reach constitutional clarity.

Bernhard Schlink, professor of constitutional law and author (The Reader) commented on this debate in an essay published in the German news magazine Der Spiegel rejecting the concept of Jung and his interpretation of the Court’s ruling. The ruling is clear and unambiguous; it leaves no room for a ‘supra-legal state of emergency’ and there is nothing that would justify a ‘supra-constitutional state of emergency’, Schlink writes.

The minister rejected the allegations of being in contradiction with the law and bringing pilots into a danger of criminal prosecution.

Documents:

B. Schlink, Die Scheinwelt eines Verteidigungsministers, 19.9.2007

Press Release, Ministry of Defense, 18.9.2007, Handeln in Extremsituation

Speech, Minister of Defense Franz Josef Jung in Bundestag, 19.9.2007, Rede von Verteidigungsminister Dr. Franz Josef Jung zum Thema: in Terrorabsicht entführte Flugzeuge ohne gesetzliche Grundlage abschießen zu lassen

English press release on the Judgment of the Federal Constitutional Court of 15.2.2006

Judgment, 1 BvR 357/05, 15.2.2006 (German)