The Totalitarian Temptation Deliver Us from Evil
| Author | Scott Crosby |
| DOI | 10.1177/203228441600700101 |
| Date | 01 March 2016 |
| Published date | 01 March 2016 |
| Subject Matter | Editorial |
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 1, 2016 3
EDITORIAL
THE TOTAL ITA RIAN TEMPTATION
DELIVER US FROM EVIL
S C*
On 19Fe bruar y 1934 E rna Häb bich, re siding at Neue St uttga rters tras se, 48 , Stutt gart-
Botnang, petit ioned the head of state for the safety of her son, Walther Häbbich, who,
it seems, had disappeared .
On 18January 1935, she was informed by letter from the commandant of the
political police t hat her son had been shot under martial law on 1July 1934.
e letter c oncluded by saying that since her son had been executed for reasons of
national self-defence (Staatsnotwehr), no further expla nations were called for.1
Sixteen years later t he ECHR was signed.
In 2005, in the a ermath of 9/11, the German Parliament adopted the
Lu sicherheitsgesetz (Aviation Security Act), Article 14(3) of which permitted the
state to shoot down civilia n aircra if it could be assumed that an aircra was being
used as a weapon in a cri me endangering life on the ground, a ll other methods of
preventing such use having fai led.
e logic behind Ar ticle14(3) was clea r: if life was going to be lost anyway, it was
best to minimi se the number of deaths. A common sense approach, one might say.
However, although the taki ng of life is permissible in cert ain emergency situations
under German law2, Ar ticle14(3) was seen as raising a constitutional i ssue. us, on
15 February 20 06 the Constitutional Cour t annulled Article 14(3). It ruled t hat
Article 14(3) was incompatible with the “ fundamental right to life and with the
guarantee of human dignity to the extent that th e use of armed force a ec ts persons on
board the aircra who are not participants in the crime. By the state’s using their killing
as a means to save others, they are treated a s mere objects, which denies them the value
that is due to a human being for his or her sake.” 3
* Advocate, Bruss els, Human Rights O cer, European Criminal Bar Association, with thanks to
Dr. RA Anna Oehm ichen, Mainz, for her helpf ul and pertinent com ments.
1 Reinhard Rupp (Hrs g.) Topographie de s Terrors, Verlag Willmuth Arenhövel, 1987, Berlin , page53.
2 For example, §32 StGB (Crim inal Code) presents a defence (sel f-defence) that exceptional ly justi es
the commission of a crime, including homicide, if this is done in order to avert an imminent and
illegal at tack and this is neces sary and proport ionate.
3 is i s the Court’s own tra nslation. e pa ssage is more powerful i n the original. However, by
translati ng the judgment , the Cour t indicates t he importa nce of the cas e for non-Germa n jurisdic tions.
To continue reading
Request your trial