Leiden Safety and Security Blog

Shooting down a hijacked plane to prevent worse

Shooting down a hijacked plane to prevent worse Anna Zvereva

Is it morally and legally justified to kill 164 persons in order to prevent the killing of 70,000 persons? In the theatre play 'Terror' it is up to the audience to judge whether the military pilot who did so is guilty or not. The first theatre play written by the German lawyer and novelist Ferdinand von Schirach has fueled an intensive debate within Germany. The play has been put on stage by sixteen theatres in Germany, as for example in Düsseldorf. The core of the plot is about flight LH2047 from Berlin on the way to Munich. The plane has been hijacked by terrorists who want to bring down the plane above the football stadium of Munich where 70,000 persons are present. The military fighter jet is reaching quite fast the plane but cannot alter the course of the plane, a plane that has become a weapon in the hands of terrorists. The pilot receives the order to follow the plane and not to intervene. However, the pilot decides just minutes before the plane is about to hit the football stadium to shoot down the plane with 164 passengers aboard to save the life of 70,000 visitors at the stadium.

Of course the play is fiction, but the underlying plot is not. The fourth passenger plane of the attacks of 11 September 2001 that was heading towards Washington would have been shot down if it had reached the capital. In the aftermath of 9/11 the German government aimed at building a legal basis to shoot down civilian airplanes that had become a weapon of terrorists. However, the Federal Constitutional Court clarified that such a preventive killing is not in accordance with the German constitution and nullified the provisions in the already ratified law on civil aviation security. The main argument of the Court against the preventive killing of passengers in a hijacked plane was that the state may never violate the dignity of its citizens and may never treat them as mere objects (like the terrorists are doing in such a case). Although ruled out in Germany, preemptive state action in the case of a hijacked plane is still possible in Europe. Somehow strange that within the democratic space of Europe the location of the plane in which you are seated can determine whether you may be shot down in a preemptive strike by a state or not.

In the light of current terrorist threat the play 'Terror' raises many interesting questions: should societies focus on the consequences of governmental action and embrace the teleological approach towards counterterrorism to enhance the well-being of as many people as possible, even at the expense of the fate of some few? Or should societies stick to the rightness of governmental actions as such and the deontological approach towards counterterrorism in which the set rules and underlying values are obeyed regardless of the outcome? Is there room for compromise between these two positions? In the fictive case of LH2047 another issue popped up: the military pilot who decided on his own to shoot down the plane felt left alone. He was aware of the law that authorized the preemptive downing of a passenger plane and the verdict of the Constitutional Court that prohibited the preemptive downing of a passenger plane. But although highly qualified and selected in one of the most competitive selection procedures, he had no training or support in dealing with dilemmas in complex contextual circumstances.

The verdict of the audiences of the play is clear: not guilty. As has been documented on a separate website in most of the performances the public advised the court to consider the accused pilot as not guilty and to release him. The reasons of the audience have not been registered, but it seems that the reasons mentioned in the play are somehow representative. Although the pilot is responsible for the killing of the passengers and although he acted against his explicit orders, he did so to prevent worse. It is not considered as his fault that he was left alone to decide on this complex dilemma in which parliament, government and court could not agree on what is right and wrong and how to act in the future.

How would you decide?

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