Killing a Few to Save a Thousand Moral Issues

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The Case of the Hijacked Plane[1]

Abstract

This dissertation investigates the moral conundrum of whether it can ever be adequate for the government to authorise the killing of a few to save a thousand. In order to examine this hypothesis, the article illustrates using a thought experiment using the fictional case of a hijacked civilian aeroplane to exemplify this ethical dilemma. The research conducts a configurative theoretical review of the literature using a case study based research synthesis and social legal methodology to analyse the differing views highlighted in the dissertation. The case study research allows for the investigation and understanding of this complex and controversial issue. Three-point of views guides the research which is from a comparative standpoint, the utilitarian, German and individualism opinions on this hypothesis. The main focus is on the unquestionable right to human dignity, which therefore brands it undemocratic and illegitimate for the government and decision-makers to balance between the lives of individuals (in this case the passengers on board and the lives of the victims on the ground). This focus is thus situated it in the context of Utilitarianism and German and European legislation and case law. Additionally, this dissertation draws its inspirations from the work of the case of the Speluncean Explores by the legal philosopher Lon L Fuller. The dissertation concludes that there is still no sett answer to whether security apprehensions may supersede the life and well being of individuals.

Table of Contents

Abstract…………………………………..

Table of Contents……………………………..

1 Introduction……………………………….

2 The Case of the Hijacked Aircraft ………………….

3 WAYNE, B. (Utilitarian Perspective)………………..

4 GORDON, J. (German Perspective)…………………

5 PENNYWORTH, A. (Human Rights Perspective)

6 Conclusion………………………………..

7 References………………………………..

1         Introduction

Crises present momentous challenges to legal systems devoted to upholding the rule of law. Although providing considerable autonomy for state action to retort as believed necessary the legal system nevertheless seeks to limit and render accountable (to some gradation) the exercise of extraordinary (ultra-vires) powers in an effort to reduce the risk of misappropriation or misapplication. Consequent to the September 2001 extremist attacks on the United States, there has been cumulative concern over the threats of terroristic attacks around the world. In fact, Germany enacted legislation which allowed for the use of weapons against hostile aeroplanes if there was evidence that it could be used or was about to be used against the lives of other human beings. Although the regulation was governed undemocratic and unconstitutional by the German courts, it still brings up the political, moral and legal problem of whether there can ever be circumstances where the authorised assassination of a few could be used to save the lives of thousands. The corollary leads to questions and debates as to when or if it at any time would it be adequate for a government to authorise the murder of a few if it would save the lives of thousands.

The purpose of this article is to examine; from a comparative perspective, the utilitarian, German and individualism opinion and interpretation of this highly controversial topic. Many argue that the utilitarian justification of state sanctioned killings is unconstitutional and unlawful yet underneath the magniloquence of human rights arguments and critiques there is still a sufficient amount of support among scholars and philosophers who would agree with such a law.  In addition, it will also include extensive research on the question of whether it can ever be adequate for the government to authorise the killing of a few to save a thousand using a case study of the circumstance a civilian aircraft has been hijacked by terrorists. This is an interesting topic because it is exceptional for the implementation of ethical speculation as it brings up many questions like whether there can ever be circumstances where the authorized killing of a solitary terrorist, or the shooting down of an extremist commandeered civilian filled aircraft can be morally justified if it could be used to save the lives of thousands. In order to argue this argument through this article will explore the thesis question using a thought experiment comparable to Lon L Fuller’s case of the Speluncean explorers[2] because it deals with an issue that is analogous of a moral quandary that the law has to deal with in the fictional case study. In the style of the Speluncean explorers, as their consideration was cannibalism obviously drawn from the case of Dudley and Stephens, the thought experiment will investigate the moral dilemma of whether shooting down a civilian boarded hijacked aeroplane going straight for a populated centre should be allowed. Although It is a different moral conundrum from the Dudley and Stephens case it is no less pressing. This thought experiment will highlight in the fictional scenario what would the law do with a defendant who has acted effectively out of necessity and if the law should criminalise that behaviour even though it is blatantly plain criminal or if the scenario should allow for mitigation. The different theories give us different answers.

In order to properly explore the controversial topic, each judge will discuss and represent different theories. Judge Wayne B would argue the utilitarianism argument, Gordon J would argue from a Germanic perspective and Pennyworth from a United Kingdom criminal law perspective. This moral conundrum will be tackled from the viewpoints of German and English law, Germany being one of those countries which had legislated law concerning the hijacking of planes even though it was repealed as unconstitutional. The comparison of these two countries law is meant to shed light on whether it is ever permissible to weigh a life against life and the consequences of the decision. Although, the law and morality are not the same ‘the absolute divorce of law from morality would be of fatal consequence.”[3] Therefore a moral perspective must come into play in order to better shed light on the conundrum at hand as it is important to investigate different aspects of this discussion.

A few matters to clear out of the way before embarking on this study. Although this thought experiment will be illustrated through a case study, this article will not focus on the investigating of the accurate subject matter of predictive complexity, for example, the query of how the defendant will be able to know with satisfactory inevitability the accurate groundwork for any necessary weighing exercise on how the decision is made in relation to the hijacking will not be important to the thought experiment. The main focus is dealing with a question of practical law and thus must adopt that the defendant and the court required to judge upon the verdict have a full understanding of all the relevant facts. Additionally, the thought experiment is under English jurisdictions; however, the differing judges will draw their reasoning’s from different jurisdictions in order to explicate the main thesis questions. For example, the judges might highlight cases from a different jurisdiction like Germany to emphasise their argument nonetheless the reasoning will be relevant to the fictional case at hand. The case of the hijacked plane itself is meant neither as a composition of parody nor as an extrapolation in any normal sense of the term.

This thought experiment is fabricated to illustrate into focus deviating viewpoints, ideas and beliefs of the law and theories. The thesis question is meant to bestow hypotheticals of controversial topics argued in the days of philosophers like Aristotle, Kant, Bentham etc. and at its core, it is also about the juxtaposition of protecting the citizens of a country and evaluating the collateral damage which often comes with those decisions. There is not meant to be any component of prophetic likelihood or projection in the case, as this article is not meant to go outside an idea that the questions involved are among the perpetual difficulties of civilisation. There will be an inevitability that the judgements given might be commended by some but that as many might be offended by it many others might vociferously assert their own moral, ethical or religious values.

2         The Case of the Hijacked Aircraft [4]

The defendant, Mrs Quinn having been indicted for the crime of murder, was convicted and sentenced to be life in prison by the High Court of Azarath. The defendant was the officer in charge of the Azarath Military. Early in October terrorists hijacked an aeroplane with 300 passengers on board and diverted its course towards the centre of Gotham. The Azarath military was contacted immediately and started to take action but came to the conclusion that the terrorist would arrive far too soon for the military to even initiate any kind of meaningful evacuation. The terrorists informed the military official in charge Mrs Quinn that instead of using the plane as a bomb and flying it into the populated city centre of Gotham, their intention was as an alternative to drop a canister with a long-lasting biological agent over the city centre during rush hour. The potency of the bomb would guarantee a minimum death toll of 10,000 people, probably many more, and the agent would be effective for months. If detonated over the course of 3 months, the toll would increase to 500,000. It was concluded by experts that there would be no way to stop the spread and that once the biological agent was released there was no stopping it. The air force was in a position to shoot down the plane as it had two fighter planes in the air that could intercept the plane in a matter of minutes over a sparsely-populated area outside the city. The terrorists had promised to Mrs Quinn not to harm the passengers and release them on a foreign airport once their mission was completed, but make it plain that they regard them as hostages for this purpose, to prevent the air force from shooting down the plane while it is still a safe distance away. Government experts assured the authorities that the intense heat created by a missile-induced explosion would destroy the biological agent as long as it was still on the plane. The defendant Mrs Quin, after weighing all the arguments for and against such a course of action, ultimately decided to order the destruction of the plane. All 300 passengers and the terrorists died and the biological agent was completely incinerated. No one else was harmed. The defendant is being prosecuted as the order and its execution breached Article 2 of the European Convention on Human Rights which states

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”[5]

 

3         WAYNE, B. (Utilitarian Perspective)

For us to contend that the law we espouse compels us to a supposition that the defendant is guilty seems to me to aggregate to an admission that the law of this country no longer pretends to incorporate justice. For myself, I do not believe that our law should require the disgraceful and outrageous deduction that the defendant is a murderer. I believe, on the contrary, that it should assert her to be innocent of any and all crime she is being accused of. I rest this conclusion on a certain philosophy, which is of itself sufficient to justify the acquittal of these defendants. The philosophy is grounded on a principle that may provoke disapproval until it has been examined. I interpret the assessment that the enacted legislation of this country, including all of its statutes and precedents, is inapplicable to this case, and that the case is governed instead by what philosophers and scholars alike identify as the “The Principle of Utility”.[6] My judgement is grounded on the philosophy that nature has situated the human race under the supremacy of two potentate masters, pain and pleasure because not only is it the paradigm of right and wrong but fastened to its throne are the shackles of causes and effects. [7] A man may follow the laws of man, its legislations or its statutes however in actuality he will still remain subject to the law of nature for he cannot deny it. This law of nature I will, therefore, be referring to will be pain and pleasure (in relation to utility). By the principle of utility is meant that principle which esteems or rejects of every action conferring to the propensity it has to increase or decrease the happiness of the party whose interest is in question, however not only of every action of a private individual but of every measure of government.[8]  The action taken should tend to produce benefit, advantage, pleasure, happiness or prevent the happening of mischief, pain, evil, or unhappiness to the party whose interest is considered and if that party is the community in general, then the happiness of the community.[9] This is explicated as the “Greatest Happiness Principle” which judges that actions are right in proportion if they tend to promote happiness, wrong if they tend to produce the reverse of happiness. Therefore, for an action to be moral one ought to act so as to maximise the utility (usually construed as happiness) of the greatest number of people.

The main concern of government under this philosophy is to promote the happiness of the society, by compensating and reprimanding. In relation, as an action tends to disrupt that utility, in relation as the propensity of it is evil, will be the requirement it creates for punishment. What utility consists of we have already seen: enjoyment of pleasures absence from pains.[10]

In this case of the hijacked aeroplane it must, therefore, be examined with a view to punishment, the action itself, which is done, the circumstances in which it is done, the intentionality that may have accompanied it and the consciousness, unconsciousness, or false consciousness, that may have accompanied it.[11] What the defendant did was done in pursuance to maximise the “pleasure” of the greatest number of people which in this case was an action taken to save the lives of the greater amount of people. Since it was ostensible that the peculiar quandary made inapplicable the common ideologies and laws that regulate men’s relations with one another, it was necessary, in fact, mandatory for the defendant to revert, as it were, back to the law of nature, that is of pleasure and pain appropriate to the situation in which she found herself.  The defendant was in a situation where the consequences of not acting would result in the death of approximately 10,000 presently which would then be set to increase to 500,000 over the course of 3 months, which was worse than the consequence of acting and killing the 300 on board. I believe that it was morally permissible – indeed, morally obligatory for the defendant to take action.  Thus, from looking at the facts of the case I have no hesitancy in saying that under those principles the defendant is guiltless of any crime. I believe that the line of argument I have just expounded permits of no rational answer. I understand that it will undoubtedly be received with uneasiness by many who read this judgement. The foundation of this uneasiness is, however, easy to recognise as customary circumstances of human existence predispose us to think of human life as an absolute value, not to be sacrificed under any circumstances. Everything we do encompasses a threat to human life, whether it is driving a car or undergoing an operation etc. Taking these everyday activities as a whole, theoreticians would be able to calculate with some meticulousness how many deaths these everyday activities would consist. However, we still knowingly and willingly partake in these activities under the supposition that the principles attained overshadow the loss. If this is what happens while civilisation is operating in a normal routine, what shall we say of the supposed absolute value of a human life in the desperate situation in which the defendants a found herself?

This case of the hijacked aeroplane bears some resemblance the classic trolley problem developed by British philosopher Philippa Foot in 1967.

“Assume you are the driver of a trolley. The trolley rounds a bend, and there come into view ahead five track workmen, who have been repairing the track. The track goes through a bit of a valley at that point, and the sides are steep, so you must stop the trolley if you are to avoid running the five men down. You step on the brakes, but alas the don’t work. Now you suddenly see a spur of track leading off to the right. You can turn the trolley onto it, and thus save the five men on the straight track ahead. Unfortunately, there is one track workman on that spur of a track. He can no more get off the track in time than the five can, so you will kill him if you turn the trolley onto him. Is it morally permissible for you to turn the trolley?”[12]

Studies illustrate that the vast margin of people generally about 90% have chosen to kill the one and save the five.[13] The principle of utility would state that the most ethical course of action is the one that offers the greatest good for the greatest number of people valuing consequence over action. Therefore, it would be morally permissive for you as the driver to turn the trolley.  Specifically, at this time in my deduction, I conclude that taking innocent lives for the sake of doing the greatest good for the greatest amount of people is acceptable especially in cases like these where the lives we take are already threatened with death. Therefore, the defensibility of navigating the trolley, which already threatens numerous people, in such a way that in order to save the greatest amount of people by killing the fewest in this case the one-track workman, is moral. This case of the hijacked plane where the killing of the innocent lives is defensible by the extremity of the situation but that is because of the province of inevitability as the defendant’s reaction was warranted because she chose the lesser harm/evil. I recognise that this statement might be received with much scrutiny and apprehension but I must emphasise that this is not to say that one’s right not to be killed at all times supersedes another’s’ right to be saved. To illustrate my point lets

“Assume this time that you are not the driver but instead a bystander. You can see a trolley hurtling down the track, out of control. You turn around to see where the trolley is headed, and there are five workmen on the track where it exits from under the footbridge. What to do? Being an expert on trolleys, you know of one certain way to stop an out-of-control trolley: Drop a really heavy weight in its path. But where to find one? It just so happens that standing next to you on the footbridge is a fat man, a really fat man. He is leaning over the railing, watching the trolley; all you have to do is to give him a little shove, and over the railing he will go, onto the track in the path of the trolley You have two options: (1) Do nothing, and the trolley kills the five people or (2) Push the large man off the bridge, so that he dies, but the five others are saved”[14]

In contrast with the first scenario, statistics show that only about 11 percent would push the fat man.[15] Which begs to question what is the difference between scenario even though the outcome is relatively the same. The key difference here is intention and foreseeability of harm. In the first scenario, one is simply deterring a predating threat from the five onto the one.  Foot proposes that the variance comes from the fact that in the second scenario with the fat man, one intends to wound the fat man as a means to saving the others. The fat man is a means to an end and is essential as a tool in order to save the others. However, in the first scenario of the trolley driver, one does not intend to cause injury at all nevertheless relatively one merely foresees it as an unfortunate, inadvertent side-effect. Although my wording is harsh this in no way means that this is just how I see this tragedy but merely just a way to illustrate my deductions. However, I use the trolley problem only as an illustration to parallel the case at hand because under the principle of Utility there is no trolley problem because an action will always be permissible if it brings the greatest amount of utility to the greatest amount of people, therefore in the scenario of the trolley and the fat man one must always kill the one to save the five.

John Stuart Mill states that utility is the definitive paradigm for ethical valuation, nonetheless, he also distinguishes individual rights to significant interests arguing that rights and utility are not contradictory as rights protecting the perpetual interests of the majority thus serving utility considered over the long term.[16] Yet in contrast, Dworkin contends, generally that individual rights override utility, explicating that rights cannot be superseded each time society or the majority might be better off were an action taken.[17] I will explicate Mill’s evaluations about the way in which rights may perhaps be corroborated in utility. Justice according to Mill’s evaluations is superior to the law which is, in turn, secondary to utility as utility remains the ultimate benchmark of morality. He relates the theory of justice and rights to the extent that all injustices are not only unethical but breach rights.

“While I dispute the pretensions of any theory which sets up an imaginary standard of justice not grounded on utility, I account the justice which is grounded on utility to be the chief part, and incomparably the most sacred and binding part, of all morality. Justice is a name for certain classes of moral rules, which concern the essentials of human well-being more nearly, and are therefore of an absolute obligation, than any other rules for the guidance of life; and the notion which we have found to be of the essence of the idea of justice, that of a right residing in an individual, implies and testifies to this more binding obligation”[18]

Mill deliberates that rights should be the target of subordinate ideologies that standardise our reasoning and considerations. David O. Brink in his article Mill’s ambivalence about rights states

“Although Mill does not treat secondary principles as mere rules of thumb in the utilitarian calculation, he does not think that they should be followed independently of their consequences. He thinks that they should be set aside in favour of a direct appeal to the principle of utility when following them would be clearly suboptimal or when there is a conflict among secondary principles.”[19]

While it is possible that an individual’s rights might be infringed upon in a certain case, it is because that individual is not being treated as any more significant than any other individual. Moreover, an individuals’ utility is valued correspondingly in utilitarianism.

Every proposal of legislation, whether encompassed in a statute or a jurisdictional precedent, is to be interpreted judiciously, in the congruence of its palpable purpose. Examples of this are numerous and are to be found in every branch of the law. The case of Dudley and Stephens[20] is a leading English criminal case which renounces a precedent that necessity is not a defence to a charge of murder.  In Dudley and Stephens, the defendants were charged with the murder of Richard Parker a cabin boy who they had eaten. Dudley and Stephens along with Brooks and Parker who were victims were cast away at sea without food and water except for some turnips and a turtle. After twenty days, Dudley and Stephens maintained that one person sacrifices himself in order to save the rest. Brooks dissented while Dudley and Stephens elected to kill Parker since he was the weakest and youngest but also at that time in a coma. Dudley had stated making it clear that “it was better that one of them die so that the others survive”. On the 25th of July, seeing no rescue in sight, the two men killed Parker and the three men feasted on his body. Four days later a vessel rescued them and Dudley and Stephens were charged with murder.

The courts stated that the deliberate killing of the guiltless and docile boy was clearly murder, furthermore proclaiming that there was, in this case, no such excuse, for the murder to be justified by what has been called “necessity.” However, I must state that the judgment obfuscates the fact that Parker’s death may have saved the lives of those three men. Again, following the principle of utility, an action is defensible if it produces more utility to a greater amount of people. This viewpoint would espouse the necessity of killing in this case.

The defence of necessity in criminal law transpires when an individual is compelled to act in a criminal manner or commit a crime due to the extremity of the situation. [21] According to my learned associate Sir James Stephen, there are three requirements for the application of the defence of necessity, firstly that the act is needed to avoid inevitable and irreparable evil, secondly that no more should be done than is reasonably necessary for the purpose to be achieved and lastly that the evil inflicted must not be disproportionate to the evil avoided. Necessity in our case at hand here is based on the conundrum of election between morals and individual rights where one of the distinguishing features is that the defendant may choose to prevent a worse evil from occurring by weighing the options of whether to obey the epistle of the law and do naught and risk harm unto the individuals involved or damage a less amount and thus protect the other.

With regards to the case of Dudley and Stephens[22] Lord Coleridge stated

“Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case, the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be “No”— “So spake the Fiend, and with necessity, The tyrant’s plea, excused his devilish deeds.” It is not suggested that in this particular case the deeds were “devilish,” but it is quite plain that such a principle once admitted might be made the legal cloak for unbridled passion and atrocious crime…”[23]

However, after much deliberating, it seems that Lord Coleridge gave no thought or attention to any accountability Dudley and Stephens might have had for the demise of all four of their colleagues as consequence of their failure to act because even if they did not desire for everyone to go hungry and die as a consequence of their inaction, they knew that would be the only outcome. This is similar to the case at hand the defendant Ms Quinn was in a position where her inaction would result in almost half a million deaths, it was necessary for her to take action (commit this crime) for the lesser of two evils.

The ratio decidendi and obiter dicta of Dudley and Stephens do not necessarily demonstrate the concept of the choice of choosing the lesser of two evils, it nevertheless focuses on depicting the defendant’s actions as a selfish act that was not committed due to a proportional threat which the defence requires. For the purposes of this case at hand, I use the case of Dudley and Stephens as an illustration to indicate circumstances that should have to permit the defence of necessity. Following the principle of utility, I dispute the assertion made that necessity is not a defence to murder. The fact that this defence is ruled out is not only ludicrous but absurd as the law should be able to assume that forthcoming cases might need the defence of necessity in order for impartiality and justice to prevail for the defendant. Additionally, it should be open to distinguishing and an assessment on individual case circumstances.

I, therefore, conclude that on any aspect under which this case may be viewed the defendant is innocent of the crime of murder and that the conviction should be set aside in order to avert public uproar and to prevent the judiciary from looking extremely harsh and immoral.

4 GORDON, J. (German Perspective)[24]

On hearing this heartbreaking and unfamiliar case I find it difficult to detach the emotions and rational sides of my reactions. On the emotional aspect, I find myself torn between understanding and compassion for the defendant, yet also a feeling of repugnance and disgust at the monstrous act executed. However, as a judge, I must put these opposing emotions to one side and resolve the case on the basis of a substantial and reasonable exposition of the result commanded by our law. As I examine the judgement just adjudicated by my learned colleague and friend Wayne. B, I find that it is riddled through with inconsistencies and to be quite frank mythologies and folklore. Firstly, I will commence with his first contention that the defendant was not subject to our law because she was not in a “state of civil society” but in a “state of nature.”  If the defendant was free from the authority of our law to that of “the law of nature,” then at what instant did this transpire? Was it when she got the news of the hijacking, or when the threat reached a certain undefined degree of intensity, or when the act of shooting the plane was made? These qualms and reservations in the judgement propositioned are proficient of creating difficulties. This regulation of the law of nature proposed we implement as our own and apply to this case is nothing short of absurd, it is a system under which a man may make a legal arrangement sanctioning his fellow man to kill one another. These reflections make it unfeasible for me to accept the first part of my colleague’s argument. I can neither acknowledge his belief that the defendant was under the law of nature which this Court of law was bound to apply nor can I accept the abhorrent and warped directions that he would read into that law.

After the aftermath of 9/11 and an incident in 2003, when a mentally disturbed man in a small aeroplane flew over the city of Frankfurt threatening to crash himself into a skyscraper, the German parliament passed a law to constrict security measures with respect to air traffic.[25] This law, which became effective on January 15, 2005, was called Luftsicherheitsgesetz, it repositioned provisions of current regulations at that present time under the preface of the new Air-transport Security Act. It also presented new powers and proficiencies for the security agencies. The most outstanding provision of the statute was section14 (3) as this section authorised the minister of defence to order that a passenger aeroplane be shot down if it could be assumed that the aircraft would be used against the life of others and if the downing is the only means of preventing this present danger. [26]  Section 14 read as followed:

“1: To avoid a particularly grave disaster, Armed Forces can intervene in the airspace diverting aeroplanes, forcing them to land, warning them on the use of fire, and opening warning fire.

2: The Armed Forces must choose, among the possible measures, the less detrimental for individuals and for the people in general. Its scope and duration will not exceed the strict necessity for achieving its objective. The measure can not bring a disproportionate damage with regard to its objective.

3: The Armed Forces’ attack will be legitimate only when, according to the specific circumstances, the conclusion can be reached that the aeroplane is going to be used against the lives of individuals and that the shooting is the only means of defence against this imminent danger.

4: Only the Federal Minister of Defense, or in his place an expressly authorised member of the Government, can order the measure in number 3. The Federal Minister of Defense can authorise the Air Force Commander to adopt the measures in number 1”[27]

It was this section, that sparked extensive pandemonium both to the public and in the legal sector as it assessed on important questions in German statutory law. The main problem that relates to the case at hand was the corresponding stability of security and freedom to the crucial problem of whether security apprehensions may supersede the life and wellbeing of individuals. The central quandary of the law on the state of emergency questions where the balance is to be struck between these two needs. The actual objective of the state of emergency law should be to secure the route back to the “normal” constitutional state.[28] The Constitutional Court’s decision did not end the debate as in 2007, Defense Minister Franz Josef Jung stated that a hijacked plane would be shot down, regardless of the court’s verdict banning such action.[29] Jung pursued to validate and rationalise such a feat under the supra- statutory state of emergency which parallels petitions to states of excep­tion characterised by German jurisprudence under the Nazi regime.This can be seen as the continuance of the German impertinence towards terrorism in the 70s and the administrative overlooking human rights exploitation under the experimental legal doctrine of the suprastatutory state of emergency, a notion which has never found recognition in the German Criminal Code.[30] The concept of ‘suprastatutory state of emergency’ had initially been introduced by the German Imperial Court in 1927 to provide a legal basis for abortion[31]

Remarkably, this Germanic style of judgement justification parallels with the ratio decidendi implemented in the case of Dudley and Stephens[32]. Even though the defendants were found guilty of murder and originally sentenced to death, their judgements were altered to six months’ incarceration due to the extraordinary conditions under which the crime was executed.[33] The mutual idealisation expressed in Article 1, section 1 of the German Basic Law[34] and the common law in Dudley and Stephens is that innocent life cannot be balanced against innocent life. In the case illustrated that the giving up of one’s own life as it could not be balanced against the life of another innocent person.

A weighty query then is whether the Dudley and Stephensjudgement should apply in this case. Although it can be argued that the judgement may yield prejudice and unfairness in some cases, and additionally may overlook the government’s responsibility to protect its citizens from unlawful criminal acts leading criminal scholars[35] have argued that Dudley and Stephensshould no longer apply, and that necessity and ‘duress of circumstances’ should be developed further to allow the application to novel hijack scenarios. It has been held that the right to life under international human rights law suggests a constructive duty and responsibility on the authorities to take pre-emptive effective actions to protect an individual whose life is at risk from the criminal acts of another individual.[36]

Deliberately downing the aircraft will result in the loss of innocent lives. This is a standard ‘dirty hands’ case as the defendant had been forced to choose between upholding an important moral principle and avoiding some looming disaster.[37] The defendant had decided that as appalling and horrifying as the pronouncement to shoot down the plane, her public accountability and obligation to the country and its people obligated it even if she now has to carry the weight of sanctioning an act that resulted in the deaths of 300 innocents. However, on the other hand, if the defendant had not taken action by ordering the shooting down of the plane then she would have to stomach the moral weight of the killing of half a million citizens on her watch. However, this is not to say that she would legally be the cause of death of those half a million citizens. In this case, the defendant had a positive defensive responsibility both to those who were on the plane, but also to the citizens of the country in danger and no matter the decision she would not be able to avoid being complicit in the terrible events that did follow.[38]

My learned friend Brooke LJ commented in passing in the case of Re A

“I would add that the same considerations would apply if a pilotless aircraft, out of control and running out of fuel, was heading for a densely-populated town. Those inside the aircraft were in any event ‘destined to die’. There would be no question of human choice in selecting the candidates for death, and if their inevitable deaths were accelerated by the plane being brought down on waste ground, the lives of countless other innocent people in the town they were approaching would be saved.”[39]

Some academics, such as Bohlander, neatly dispose of the right to life and human dignity of innocent passengers and crew by concluding that they have, in effect, ceased to be human beings stating

“A harsh—but in my view ultimately correct—approach to that sort of case would suggest that their doomed lives cannot be used as one side to the balancing exercise when trying to decide whether necessity could be applied as a means of justification or excuse. The outwardly cynical but logically proper approach is that necessity does not enter into it at all because there is no balancing exercise; they are, to put it bluntly, already dead. If the lives of the passengers will be lost in any case, then it would be a mere academic exercise to weigh the relatively minor shortening of those lives by shooting down the plane against the possibility of saving the otherwise unendangered lives of the people on the ground”[40]

This impression that the hijacked citizens are alive but judgedto be dead is morally uncertain and dubious. However, an analogous line of reasoning, where the civilians were designated for death and therefore their welfares could be disregarded, was rejected by the German Constitutional Court. The court of law of Germany explicitly distinguished that the civilians onboard the hijacked plane have already attained what they termed the “object status” grounded on the exploits of the terrorists and the state would also treat them as objects if it invalidated their safeties by making them the obligatory detriment for the resolution of saving the lives of the people on the ground. The court stated in para.124[41]: “This makes them objects not only of the perpetrators of the crime. Also, the state which in such a situation resorts to the measure provided by § 14.3 of the Aviation Security Act treats them as mere objects of its rescue operation for the protection of others…….”[42]. Nevertheless, the Bundesverfassungsgericht repudiated to participate in any calculating or balancing exercise against the value of human life. The court made this clear in paras 137

“…14.3 of the Aviation Security Act also cannot be justified by invoking the state’s duty to protect those against whose lives the aircraft that is abused as a weapon for a crime within the meaning of § 14.3 of the Aviation Security Act is intended to be used.”[43]

where it held that the fact that the killing is meant as a means to save the lives of others, does not enter into the equation.[44] This means that German constitutional law in the concluding examination would, in fact, necessitate that the state to stand by and watch unreceptive as a fully-fuelled civilian plane hijacked by a terrorist, for example, flew into a town of 50,000 civilians.[45]

Before affirming my own deductions about the evidence of the case, I should like to deliberate some of a vital issue involved. Article 2(2)(a) of the European Convention on Human Rights[46] which permits the use of necessary force ‘in defence of any person from unlawful violence’[47] As I stated before, it is not only the lives of the people on board the plane but also the lives of those on the ground, that the court must take into consideration. The European Convention of Human Rights illustrates the value of a government’s responsibility to defend the lives of its citizens, a great example of this would be the case of Osman v United Kingdom.[48] The court noted that Art.2(1) of the European Convention on Human Rights “commands the State not only to abstain from the deliberate and illegal taking of life but also to take fitting steps to protect the lives of those within its jurisdiction”[49] The government’s responsibility and commitment, therefore, extends outside its foremost obligation to protect the right to life by setting in place efficient criminal law stipulations to discourage crimes against civilians supported up by the law-enforcement mechanism for the deterrence and permitting of fissures of such conditions.[50] However much like this case, there are other cases where characteristics of both law application and martial counterterrorism measures hit a middle or grey area bringing legal and procedural deliberations to play. For example, the case of Finogenov v Russia[51] where a group of over forty terrorists belonging to the Chechen separatist movement entered the Dubrovka Theatre in Moscow and held over 900 people hostages in what was described as ‘an extreme law enforcement situation’. The terrorists were armed with automatic weapons and explosive weaponry and had installed explosive devices in the theatre. Russian security forces used an undisclosed incapacitating chemical agent to sedate both the terrorists and hostages before retaking the theatre building and rescuing the hostages in a conventional assault. With most of those inside incapacitated by the gas, the security services then stormed the theatre and killed the terrorists. Whilst this resulted in the majority of hostages being freed, 125 hostages died, either during the operation or shortly afterwards and additionally a number of survivors suffered significant health problems after being freed.[52] Nevertheless, the ECtHR held that there was no desecration of art.2 on the justification of the decision by the authorities to resolute the hostage predicament by force and to use the gas. The court explicated that while art.2(2)[53] compels that the use of deadly force be no more than unconditionally required, however the Court may occasionally depart from that laborious tradition where its application may simply be impracticable because pieces of the circumstances rest outside the Court’s proficiency[54] or where the authorities had to act under immense time pressure and their control of the circumstances was minuscule. Therefore, given the scale of the predicament confronted by the Russian establishments, additionally the fact that the first few days of conciliation did not bring any evident achievement and that the condition of the hostages was deteriorating, the authorities had every motive to believe that a compulsory involvement was the “lesser evil” in the situation.[55] Therefore the court found that the verdict to end consultations and to storm the building or the choice to use the gas did not run counter to art.2.[56]

However, the problem with this case is still the overlying fact that the government must distinguish and respect the lives of civilian’s legitimate right to dignity. The German Court determined that s.14 of the Air-transport Security Act[57] displayed no reverence for the safety of those on board the hijacked aeroplane. The statute simply treated those lives as part of the aircraft, the like of an object which would be demolished. Under these conditions, the defendant gave up the travellers’ lives for the resolution of the plausible deterrence of a severe threat. Nevertheless, we can not ignore the fact that such an action neglected the constitutional prominence of the people aboard the hijacked aircraft as individuals with self-respect and absolute rights. If we as the body of the law take these peoples death into reason as inevitable damage for the advantage of other intentions, that would mean that we are converting innocent lives into objects and delegalizing them and their rights.

There is still a supplementary strain in my colleague’s Wayne B’s proposal to read an exemption into the law to support this case, though again an exertion not even intimated in his opinion. However, I apprehend on likeness that I may be regarding myself with a difficulty that may never ascend since it is improbable that anyone will ever again be compelled to perform the horrendous action that was involved here due to the uniqueness of the case. Nevertheless, on still additional manifestation, although I have come up cases, none are comparable to the case at hand. Still, if this is so, why is it that we of this Court so often discuss the inquiry whether we are likely to have later instance to apply a theory urged for the solution of the case before us?  The more I scrutinise this case and think about it, the more entwined in its web I become involved. My mind becomes tangled in the interlocks of the very grids I toss out for my personal saving. I find that almost every reflection that stands on the conclusion of the case is offset by a contrasting deliberation leading in a contradictory route. My colleague Wayne has not equipped to me, nor can I determine for myself, any method or formulation proficient enough to resolve the prevarications that plague me on all margins. Therefore, I have been absolutely incapable to resolute the uncertainties that torment me about the law of this case. With prodigious compunction and grief, I am declaring an action that is, I believe, extraordinary in the antiquity of this court of law. I declare my removal from the pronouncement of this case.

5         PENNYWORTH, A. (Human Rights Perspective)

I have heeded with surprise to the strenuous argumentations to which this case has given rise. We have heard knowledgeable deliberations on the discrepancy between the law of nature and the law of the land, the German perspective and much more. However, the conundrum before us is what we, as representatives of the administration of the court, ought to do with the defendant here today. I wish to stress the magnitude and importance that in deciding, whether what the defendant did was right or wrong, bad or good will be immaterial to the emancipation of my agency as a judge under oath to apply, not my perceptions of ethics or what is right, but the law of the land. Therefore, after putting my statement into perspective I think I can reject without any statement the poetic utilitarian portion of my learned friend Wayne. B’s judgement. Before asserting my own deductions about the virtues of the case, I would like to deliberate fleetingly some of the more central problems included. These are problems on which my contemporaries and I have been segregated on ever since I have been on the bench. The main question before us for a verdict is whether the defendant did, within the denotation of the common law purposely take the life of the people on the hijacked aircraft. The particular language of the law states that the legal definition of murder is ‘the unlawful killing of a human being in the Queen’s peace, with the intention to kill or intention to cause grievous bodily harm (GBH).[58] Now I should suppose to a reasonable man, from the common law definition, one would accept at once that the defendant did take the lives of the civilians on board the aircraft.

Murder entails the offender not only to cause death but to also intends to cause death or grievous bodily harm.  According to the case of R v Woollin [59] where the appellant threw his 3-month-old baby son on to a hard surface and the baby suffered a fractured skull and died, it was held that

“Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to find the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendant’s actions and that the defendant appreciated that such was the case.”[60]

Therefore, applying the Woollin test intention may be either direct or oblique, direct intention meaning the straightforward intention to kill or cause GBH and oblique intention although more complex but for the definition of the judgement meaning that the defendant foresees that death or GBH will be the virtually certain consequence of the action/actions taken, even if the purpose is not to cause death. The defendant’s intention is not to kill the passengers, but however, she knows without a doubt that if the plane is shot down, those on board will certainly die.  This, in my opinion, establishes oblique intention and thus the elements of murder are fulfilled.

The complications of the case, then all trace back to a solitary foundation, and that is the basic failure to differentiate the legal from the ethical characteristics of this case. Fundamentally, it seems as if that my colleague Wayne. B does not like the fact that the law of the land necessitates the sentence of the defendant. However, neither do I, but unlike some, I reverence the responsibilities of the court that necessitates me to put my private preferences out of my mind when I come to understand and utilise the law of this country.

As I have established in my opinion that the criteria for murder have been fulfilled it should be established whether there is a plausible defence in order to exonerate the defendant. In R v Dudley & Stephens[61] The Court held that necessity could not contend as a defence to murder. Lord Coleridge CJ accentuated the ethical and practical complications in balancing contending welfares involved if the defence was recognised:

“Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own.”[62]

Although the ideologies developed in R v Dudley & Stephens[63] were nullified, it is fairly conceivable that the murder of the cabin boy might have in this present time be rationalised by the defence of necessity if there was an adequate inevitability that a greater number of lives might be saved.[64] The defence of necessity occurs when the alleged defendant maintains that his or her actions, though otherwise fulfilling the components of a criminal offence, was nevertheless obligatory in the conditions. It can be argued for the accused that their actions disallowed a greater harm that would have developed if the law were conformed too, or otherwise, in the case here that under the severity of life-threatening conditions, it would have been an almost impossible problem to have submitted to the letter of the law. The former argument relays to necessity as a defence whereas the latter replicates it as a justification.[65] Read very narrowly, the case of Dudley only held that individuals could not forfeit the life of another in order to save their own. This decision does not however necessarily throw uncertainty on the accessibility of self-defence. Therefore, it can be indeed contended that it is not beyond the scope of dispute that government administrators (for example, military officials etc.) could nonetheless be defensible in taking such a pronouncement for the greater good of the nation. Undeniably, some scholars have reasoned that necessity should be available as a defence for shooting down a hijacked aircraft to prevent its use in a suicide attack.[66] However, the problem with necessity is that by its core characteristics and in theory it is an illustration of utilitarianism, by this I mean that the concept of avoiding the greatest evil y, therefore, committing an act of lesser evil is in a sense the core value of necessity. However, in practicality if the defence of necessity were to boil down to a simple statistics game, then it risks jeopardising and demoralising core principles such as human life which the law holds sacred.

In the case of Re A, Jodie and Mary were conjoined twins who each had their own brain, heart and lungs and other vital organs and their arms and legs. They were joined at the lower abdomen. Whilst not to underplay the surgical complexities, they could be successfully separated but the operation would kill the weaker twin, Mary because her lungs and heart were too deficient to oxygenate and pump blood through her body.[67]If Mary had been born a singleton, she would not have been viable and resuscitation would have been abandoned, therefore she would have died shortly after her birth.[68] Mary was only alive because a common artery enabled her sister, who was stronger, to circulate life-sustaining oxygenated blood for both of them. The separation of the twins would require the clamping and then the severing of that common artery in which within minutes of doing so Mary would die. However, if the operation did not take place, both would die within three to six months, or perhaps a little longer, because Jodie’s heart will eventually fail. The parents could not bring themselves to consent to the operation as the twins were equal in their eyes and they could not agree to kill one even to save the other. As devout Roman Catholics, they sincerely believed that it was God’s will that their children were afflicted as they were and they must be left in God’s hands.[69]  In contrast, the doctors were convinced they could carry out the operation so as to give Jodie a life which would be worthwhile, thus the hospital sought a declaration that the operation may be lawfully carried out. The parents applied for permission to appeal against this order, however, the appeal was dismissed and the operation could be lawfully carried out by the doctors.[70]

Brooke LJ, expressly, supported in the case of Re A the necessity defence, and set out its conditions stating that “(i) the act is needed to avoid inevitable and irreparable evil; (ii) no more should be done than is reasonably necessary for the purpose to be achieved; and (iii) the evil inflicted must not be disproportionate to the evil avoided.”[71]

This reasoning does not tell us with certainty whether necessity in cases specifically this one should act as a validation or only an explanation on an idiosyncratic level. The scholar Michael Bolander argues that

“The state must provide for a mechanism to ensure that such people are not sanctioned by the criminal law. It tells us that necessity may–and in some cases, must–be a defence to murder. However, it is apparent from the systematic consequences of using the “excuse” approach that the defender would still be acting unlawfully and could in theory himself be the object of defensive force under the common-law self-defence doctrine. This is difficult to accept for cases where state agents are involved, and for public policy reasons it militates in favour of a defence on the level of justification.”[72]

If the theory that a state can in hypothesis and in life-threatening cases be validated from a criminal law position under the defence of necessity then the question of whether it would be reasonable to punish not just as an example, in this case, the defendant but also those who executed and performed the strategy or pronouncement in the individual case. In other words, we cannot, on the one hand, tolerate representatives to give the order to implement a superior decision, but on the other hand impeach, prosecute or sentence the aviators who shoot down the plane or in our case the superiors who order the attack, for murder because necessity is not a defence under the domestic law.[73]Although my colleague and I have used the case of Dudley and Stephens[74] it is still dubious whether in its stark simplicity of approach is still respectable law, especially after Re A[75]. Nevertheless, the progress of the regulations concerning such problems as abortion illustrates that in certain cases human life[76] may be taken for explanations that classify equivalent or even evidently beneath that of the concluded life.

The dilapidation of my colleague’s Gordon, J efforts to shroud his redesigning of the inscribed law of the land with an air of lawfulness comes disastrously to surface. He argues by using the Luftsicherheitsgesetz (Aviation Security Act) stating that this is compatible with human rights laws. However intentionally assassinating guiltless citizens on board is incompatible with the right to human dignity, as established in the Basic Law of Germany. The absolutizing of human dignity makes it unconstitutional for the government and for the administrative to weigh between the lives of the passengers on board and the lives of the victims of the crash. The law undertakes is substantiated on the supposition, that all human beings can without restrictions form their own life, can freely progress their character, and partake of a right to be regarded as adherents of a civilisation having an intrinsic value. If these are supposedly true then all this prohibits turning any these individuals in mere “entities of the state”. For this purpose, any ruling, legislation, verdict or comportment interrelated to the responsibility of protection which put into question the partiality of individuals of a state, and their position as individuals entitled to rights and liberties, is therefore unconstitutional.[77] My colleagues Utilitarian and German justification arguments infringe on these human rights, including the right to a fair trial, freedom of movement, expression, association and assembly.

The shooting down of a hijacked aircraft violates the right to life of the innocent passengers and crew under Article 2(1) of the European Convention on Human Rights (ECHR) which states:

“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”[78]

The responsibilities set out in Article 2 of the European Convention on Human Rights produces a dual duty, firstly, a positive duty to protect life and secondly, a negative duty to abstain from taking life.[79] The government conveys the responsibility of those duties through its representatives and branches when making decisions that involve life-threatening circumstances.[80]The use of lethal force by the State was first tackled in detail in the McCann and Others v. the United Kingdom case.[81] The case concerned the death of three members of the Irish Republican Army, speculated of having on them a remote control device to be used to detonate a bomb.[82] The applicants were parents of the victims who were shot dead by members of the Special Air Service on the streets of Gibraltar, a squadron of the British Army which was expectant of a terrorist attack by the Irish Republican Army. An investigation began but certain information was not disclosed.[83] When individuals have been assassinated by representatives of the State, Article 2 of the European Convention on Human Rights obligates that an investigation is made.[84] Paragraphs 148-150 of the McCann Case explicates that the Court contemplates that the omissions outlined encompasses to, but is not concerned exclusively with intentional killing.[85] The Commission had pointed out, that the content of Article 2 read as a whole, validated that Article 2(2) did not principally outline occurrences where it was acceptable intentionally to kill an individual, but instead defined the circumstances where it was acceptable to use “necessary” force which may have resulted, as an inadvertent consequence, in the deprivation of an individual’s life.[86] The said use of force, however, must be no more than “absolutely necessary” for the attainment of one of the tenacities set out in the convention.[87] Thus, in retrospective, the use of the phrase “absolutely necessary” in Article 2 specified that a sterner and more persuasive test of necessity should be utilised from that generally applicable when influencing whether the States action is essential in an autonomous civilisation.[88] Precisely, the force used must be severely proportional and/or equivalent to the attainment of the purposes and intentions set out in Article 2.[89]

In keeping with the significance of the condition of Article 2 of the European Convention on Human Rights in an autonomous society, the Court must in making its valuation, focus deprivations of life to the most cautious inspection, predominantly where deliberate fatal force is used.[90] This is especially taking into deliberation not only the acts of the representatives of the State who actually order the force but also all the immediate situations including such matters as the preparation and control of the actions under scrutiny.[91] Hence, the Court held that the British Army did not impede the construction of a detailed and unprejudiced investigation of the circumstances surrounding the killings. The Court determined that there has been a violation of Article 2 because the operational procedure could have been more strategic and meticulous without the need to kill the suspected terrorists and additionally the killing of the three suspected terrorists did not constitute a use of force which was” absolutely necessary” as proscribed by Article 2(2).[92]

Although however, in contrast, the bereavements of people in circumstances similar to these would not essentially always automatically warrant a breach of Article 2.  In the case of Andronicou v Cyprus where the state authorities stormed a flat in which a man was holding his wife-to-be hostage, it was held that the defence force firing and consequently assassinating both the man and his fiancée were in self-defence and defence of the fiancée.[93] The courts stated that there was no bureaucratic infringement of planning because the authorities in the conditions acted correspondingly in self-defence of the fiancée who was in physical and immediate danger. Furthermore, the European Court of Human Rights held there that there was no violation of Article 2 of the European Conventions of Human rights.  In the case of Osman v United Kingdom[94], the claimants’ objections were focused on the failure of the authorities to act on what they had asserted were a sequence of evident warning signs that Paget-Lewis posed a solemn threat to the physical safety of Ahmet Osman and his family. The claimants contended that the police had been given evidence which should have made it clear that Paget-Lewis posed a threat. The European Court of Human Rights held that the right to life under intercontinental human rights law infers a positive responsibility on the authorities to take anticipatory functioning measures to protect an individual whose life is at risk from the criminal acts of another individual. However, the Court decided that the facts of the case did not show that the authorities knew or ought to have known that the lives of the Osman family were at a material and immediate risk from the Paget-Lewis, Therefore, accordingly, the authorities did not breach Article 2.[95]

In this country, human life, dignity and liberty must possess identical constitutional fortification irrespective of the length of the person’s corporeal life span’. If we allow for the government to shoot down a civilian boarded hijacked plane then it means that the government also regards these innocent hostage passengers as meagre objects. Such behaviour and dealing of a circumstance degrade and vilifies the universal rights of those affected as individuals with respectability and absolute rights.  Although it might be seen as harsh, the law is the law and by using the hostages’ death as a means of saving others, they are thus stripped of their rights which is, therefore, a breach of the European Human Rights of Conventions.

I understand that the line of reasoning I have established in this opinion which contrasts with my colleagues especially my learned friend Wayne B might not be satisfactory to those who look only to the instantaneous outcomes of a pronouncement and disregard the forthcoming consequences. Like someone once said a difficult choice is usually not a popular choice nevertheless I believe that jurisdictional exclusion creates more damage in the long run than making difficult decisions.

These finishing clarifications are, of course, beyond any duties that I have to emancipate with relation to this case, but I include them here because I feel deeply that my colleagues are inadequately unaware of the hazards implied in the commencements of the judgement supported by my friend Wayne B. I conclude that a guilty conviction should be declared.

6         Conclusion

The High Court of Azarath being evenly divided, the conviction and sentence of the Court is affirmed. It is ordered that the execution of the sentence shall occur at which time the defendant is sent to jail. The judges have given their final decisions and from the conclusion of the judges, it can be illustrated through this thought experiment that the main question of this article, whether it can be adequate for the government to authorize the killing of a few to save a thousand demonstrates evidently, the parallel between that reclines at the margin of the law and its principal theoretical doctrines. As demonstrated by this thought experiment there are these three very different ways of approaching this problem, with the German approach which sits in the middle being neither for or against underlining one of the difficulties with this moral conundrum. There is a certain level of confusion and discomfort within the regime area because the law governing it was introduced but then later on repealed. These three judges symbolise three very different approaches, reiterating again that the judges who make up Chief Justice Azarath High court are, of course, as mythological as the facts of the case with which they deal with.

Due to the fact that the German approach is very muddled and confusing it is one of the reasons the judge sits on the fence and does not make a decision because there is an ambivalence of what the German judge would have or should have done. Although the utilitarian judge decision may be thought to be abhorrent and barbaric, in theory, it can be argued that it is the one that made the most sense. The English judge takes a very right based approach emphasising that the law is the law and that the defendant is guilty because it is what the law deems so. The contradictory verdicts of both the German and English law debatably exhibit the diverse theoretical backgrounds observed at the foundation.  Jeremy Bentham and John Stuart Mill both who were two of most prominent British theorists were famous utilitarian’s and in divergence German law, with its perception of human dignity which draws its ethics from the works of Immanuel Kant’s deontological ethics rebuffs the utilitarian view. The trolley problem reiterates the perplexity of this moral conundrum as if action is taken it disregards the liberty and dignity of the individuals on board the hijacked aircraft. By shooting the aircraft these individuals are being treated as objects and at the same time dispossessed of their rights, however, in not taking actions a greater amount of people would perish. This is in a sense a paradoxical question that has no set answer.

Therefore, in conclusion, this thought experiment illustrates that there still is no set answer for whether security apprehensions may supersede the life and wellbeing of individuals and the inviolability of human dignity which is the central quandary of the law on the state of emergency questions where the balance is to be struck between these two needs.

7         References

Bentham J, An Introduction To The Principles Of Morals And Legislation (Garland Pub 1981)

Bohlander M, ‘In Extremis – Hijacked Airplanes, “Collateral Damage” And The Limits Of Criminal Law’ [2006] Criminal Law Review

Brink D, ‘Mill’s Ambivalence About Rights’ (2007) 90 BOSTON UNIVERSITY LAW REVIEW

Bronitt S and McSherry B, Principles Of Criminal Law (2nd edn, Lawbook Co 2005)

Christie G, ‘The Defense Of Necessity Considered From The Legal And Moral Points Of View’ (1999) 48 Duke Law Journal

‘Decisions – Authorisation To Shoot Down Aircraft In The Aviation Security Act Void’ (2006) <http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2006/02/rs20060215_1bvr035705en.html> accessed 3 March 2017

Dershowitz A, Why Terrorism Works: Understanding The Threat, Responding To The Challenge (Yale University Press 2003)

Dworkin R, Taking Rights Seriously (4th edn, Harvard University Press 1977)

Edmonds D, Would You Kill The Fat Man? The Trolley Problem And What Your Answer Tells Us About Right And Wrong (Princeton University Press 2013)

FirstPost, ‘Cabinet Approves Anti-Hijacking Bill 2014, Punishment Includes Death’ (2014) <http://www.firstpost.com/india/cabinet-approves-anti-hijacking-bill-2014-punishment-includes-death-1831431.html> accessed 9 April 2016

Foot P, ‘The Problem Of Abortion And The Doctrine Of The Double Effect’ (1967) 5 Oxford Review

Fuller L, ‘The Case Of The Speluncean Explorers’ (Nullapoena.de, 1949) <http://www.nullapoena.de/stud/explorers.html> accessed 9 April 2017

Gani M, Hufnagel S and Bronitt S, Shooting To Kill: Socio-Legal Perspectives On The Use Of Lethal Force (Hart Publishing 2012)

Gregor M and others, Kant: Groundwork Of The Metaphysics Of Morals (Cambridge University Press 1998)

Herring J, Criminal Law: Text, Cases, And Materials (Oxford University Press 2016)

Hoffman D and Rowe J, Human Rights In The United Kingdom (3rd edn, Pearson 2010)

Hörnle T, ‘Hijacked Airplanes: May They Be Shot Down?’ (2007) 10 New Criminal Law Review

Hufnagel S and Bronitt S, ‘Comparative Perspectives On The Use Of Lethal Force Against Hijacked Aircraft: Recent Developments In Europe And Australia’ (2007) 7 Oxford University Commonwealth Law Journal

Hufnagel S, ‘German Perspectives On The Right To Life And Human Dignity In The “War On Terror”‘ [2008] Criminal Law Journal

Jakab A, ‘German Constitutional Law And Doctrine On State Of Emergency – Paradigms And Dilemmas Of A Traditional (Continental) Discourse’ (2005) 7 German Law Journal

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Ladiges M, ‘Die Notstandsbedingte Tötung Von Unbeteiligten Im Fall Des § 14 Abs. 3 Luftsig – Ein Plädoyer Für Die Rechtfertigungslösung’ (2008) 3 Zeitschrift für Internationale Strafrechtsdogmatik

Lepsius O, ‘Human Dignity And The Downing Of Aircraft: The German Federal Constitutional Court Strikes Down A Prominent Anti-Terrorism Provision In The New Air-Transport Security Act’ [2007] German Law Journal

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Santiago J and Felipe M, ‘Shooting Down Hijacked Airplanes? Sorry, We’Re Humanists. A Comment On The German Constitutional Court Decision Of 2.15.2006, Regarding The Luftsicherheitsgesetz (2005 Air Security Act)’ [2007] ExpressO Preprint Series <https://www.unodc.org/tldb/pdf/EssayCivilAviation1.pdf> accessed 13 April 2016

Thomson J, ‘The Trolley Problem’ (1985) 94 The Yale Law Journal

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7.1         Legislation

Basic Law for the Federal Republic of Germany

European Court of Human Rights, ‘European Conventions Of Human Rights’.

Luftsicherheitsgesetz (Aviation Security Act)

7.2         Cases

Andronicou v Cyprus [1997] ECHR 80

Finogenov v Russia (Application Nos.18299/03 and 27311/03)

McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

Osman v United Kingdom [1998] EHRR 101

R v Dudley and Stephens (1884) 14 QBD 273

R v Woollin [1999] AC 82

Re A (conjoined twins) [2001] 2 WLR 480


[1] This dissertation is based on Fuller L, ‘The Case Of The Speluncean Explorers’ (Nullapoena.de, 1949) <http://www.nullapoena.de/stud/explorers.html> accessed 9 April 2017

[2] Fuller L, ‘The Case Of The Speluncean Explorers’ (Nullapoena.de, 1949) <http://www.nullapoena.de/stud/explorers.html> accessed 9 April 2017

[3] R v Dudley and Stephens (1884) 14 QBD 273 Lord Coleridge

[4] This example is in reference to the example given by Michael Bohlander, ‘In extremis – hijacked aeroplanes, ‘collateral damage’ and the limits of criminal law’ [2006] Criminal Law Review 579–592

[5] ECHR-CEDH, ‘European convention on human rights’ (2017) <http://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 6 March 2017

[6] Jeremy Bentham, An introduction to the principles of morals and legislation (Garland Pub. 1981)

[7] Jeremy Bentham, An introduction to the principles of morals and legislation (Garland Pub. 1981)

[8] Jeremy Bentham, An introduction to the principles of morals and legislation (Garland Pub. 1981)

[9] Jeremy Bentham, An introduction to the principles of morals and legislation (Garland Pub. 1981)

[10] Jeremy Bentham, An introduction to the principles of morals and legislation (Garland Pub. 1981)

[11] Jeremy Bentham, An introduction to the principles of morals and legislation (Garland Pub. 1981)

[12] Judith Jarvis Thomson, ‘The Trolley Problem’ (1985) 94(6) The Yale Law Journal 1395

[13] Olga Khazan, ‘One of the most common experiments in psychology might be horribly flawed’ The Atlantic (24 July 2014) <http://www.theatlantic.com/health/archive/2014/07/what-if-one-of-the-most-popular-experiments-in-psychology-is-worthless/374931/> accessed 30 January 2017

[14] Judith Jarvis Thomson, ‘The Trolley Problem’ (1985) 94(6) The Yale Law Journal 1395

[15] Olga Khazan, ‘One of the most common experiments in psychology might be horribly flawed’ The Atlantic (24 July 2014) <http://www.theatlantic.com/health/archive/2014/07/what-if-one-of-the-most-popular-experiments-in-psychology-is-worthless/374931/> accessed 30 January 2017

[16] John Stuart Mill, Utilitarianism (Hackett Publishing Co 2002)

[17] Ronald M. Dworkin, Taking rights seriously (4th edn, Harvard University Press 1977)

[18] John Stuart Mill, Utilitarianism (Hackett Publishing Co 2002)

[19] David O. Brink, ‘Mill’s ambivalence about rights’ (2007) 90 BOSTON UNIVERSITY LAW REVIEW 1669

[20] R v Dudley and Stephens (1884) 14 QBD 273

[21]Jonathan Herring, Criminal law: Text, cases, and materials (Oxford University Press 2016)

[22] R v Dudley and Stephens (1884) 14 QBD 273

[23] R v Dudley and Stephens (1884) 14 QBD 273

[24] Judge Gordon will be looking at the case from a German perspective

[25] Oliver Lepsius, ‘Human Dignity and the Downing of Aircraft: The German Federal Constitutional Court Strikes Down a Prominent Anti-terrorism Provision in the New Air-Transport Security Act’ [2007] German Law Journal 307

[26] Luftsicherheitsgesetz (Aviation Security Act) 2005

[27] Luftsicherheitsgesetz (Aviation Security Act) 2005

[28] András Jakab, ‘German constitutional law and doctrine on state of emergency – paradigms and dilemmas of a traditional (continental) discourse’ (2005) 7(5) German Law Journal 453–478

[29] Deutsche Welle, ‘Defence minister: Germany would shoot down hijacked plane | Germany | DW.COM | 17.09.2007’ (DW, 2017) <http://www.dw.com/en/defense-minister-germany-would-shoot-down-hijacked-plane/a-2784956> accessed 21 February 2017

[30] Simon Bronitt, Saskia Hufnagel, and Miriam Gani (eds), Shooting to kill: Socio-legal perspectives on the use of lethal force (Hart Publishing 2012)

[31] Simon Bronitt, Saskia Hufnagel, and Miriam Gani (eds), Shooting to kill: Socio-legal perspectives on the use of lethal force (Hart Publishing 2012)

[32] R v Dudley and Stephens (1884) 14 QBD 273

[33] Simon Bronitt, Saskia Hufnagel, and Miriam Gani (eds), Shooting to kill: Socio-legal perspectives on the use of lethal force (Hart Publishing 2012)

[34] Germany’s Basic Law of 1949 includes as part of its opening article: ‘Human dignity shall

be inviolable.’

[35] See JC Smith and B Hogan, Criminal Law (10th edn Butterworths, London 2002) 273–4; JC Smith, B Hogan and David Ormerod, Criminal Law (11th edn OUP, Oxford 2005) 322.

[36] Osman v United Kingdom [1998] EHRR 101

[37] Michael Walzer, ‘Political Action: The Problem of Dirty Hands’ (1973) 2(2) Philosophy & Public Affairs 160–180

[38] The critical point is that the hijackers have constructed a morally impossible situation for the defendant so that even if she does ‘what the situation calls for,’ she will have brought about the deaths of innocent citizens who do not deserve to be killed.

[39] Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961.

[40] Michael Bohlander, ‘In extremis – hijacked airplanes, ‘collateral damage’ and the limits of criminal law’ [2006] Criminal Law Review 579–592

[41] Bundesverfassungsgericht, ‘Decisions – Authorisation to shoot down aircraft in the aviation security act void’ (15 February 2006) <http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2006/02/rs20060215_1bvr035705en.html> accessed 3 March 2017

[42] Such a treatment ignores the status of the persons affected as subjects endowed with dignity and inalienable rights. By their killing being used as a means to save others, they are treated as objects and at the same time deprived of their rights; with their lives being disposed of unilaterally by the state, the persons on board the aircraft, who, as victims, are themselves in need of protection, are denied the value which is due to a human being for his or her own sake

[43] This also applies to their duty to protect human life. It is true that especially as regards this protected interest, in cases with a particular combination of circumstances, if effective protection of life cannot be achieved otherwise, the possibilities of choosing the means of complying with the duty of protection can be restricted to the choice of one particular means (see BVerfGE 46, 160 (164-165)). The choice, however, can only be between means the use of which is in harmony with the constitution.

[44] Bundesverfassungsgericht, ‘Decisions – Authorisation to shoot down aircraft in the aviation security act void’ (15 February 2006) <http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/EN/2006/02/rs20060215_1bvr035705en.html> accessed 3 March 2017

[45] Michael Bohlander, ‘In extremis – hijacked aeroplanes, ‘collateral damage’ and the limits of criminal law’ [2006] Criminal Law Review 579–592

[46] Hereby referred to from now on as the ECHR

[47] ECHR-CEDH, ‘European convention on human rights’ (2017) <http://www.echr.coe.int/Documents/Convention_ENG.pdf> accessed 6 March 2017

[48] Osman v United Kingdom [1998] EHRR 101

[49] Michael Bohlander, ‘In extremis – hijacked airplanes, ‘collateral damage’ and the limits of criminal law’ [2006] Criminal Law Review 579–592

[50] Michael Bohlander, ‘In extremis – hijacked aeroplanes, ‘collateral damage’ and the limits of criminal law’ [2006] Criminal Law Review 579–592

[51] Finogenov v Russia (Application Nos.18299/03 and 27311/03)

[52] Sweet & Maxwell and its Contributors, ‘Terrorism: use of force in hostage situations – planning of rescue operations – Finogenov v Russia (18299/03)’ (2012) 2 European Human Rights Law Review 233–237

[53] Sweet & Maxwell and its Contributors, ‘Terrorism: use of force in hostage situations – planning of rescue operations – Finogenov v Russia (18299/03)’ (2012) 2 European Human Rights Law Review 233–237

[54] Like in this case at hand

[55] Sweet & Maxwell and its Contributors, ‘Terrorism: use of force in hostage situations – planning of rescue operations – Finogenov v Russia (18299/03)’ (2012) 2 European Human Rights Law Review 233–237

[56] Finogenov v Russia (Application Nos.18299/03 and 27311/03)

[57] Luftsicherheitsgesetz (Aviation Security Act) 2005

[58] Taken from criminal notes from the first year

[59] R v Woollin [1999] AC 82

[60] R v Woollin[1999] AC 82

[61] R v Dudley and Stephens (1884) 14 QBD 273

[62] R v Dudley and Stephens (1884) 14 QBD 273

[63] R v Dudley and Stephens (1884) 14 QBD 273

[64] Miriam Gani, Saskia Hufnagel and Simon Bronitt, Shooting To Kill: Socio-Legal Perspectives On The Use Of Lethal Force (Hart Publishing 2012).

[65] Simon Bronitt and Bernadette McSherry, Principles Of Criminal Law (2nd edn, Lawbook Co 2005).

[66] Hufnagel S, ‘German Perspectives On The Right To Life And Human Dignity In The “War On Terror”‘ [2008] Criminal Law Journal

Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 Lord Justice Ward.

[68] Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 Lord Justice Ward.

[69] Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 Lord Justice Ward.

[70] Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961 Lord Justice Ward.

[71] Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961.

[72] Michael Bohlander, ‘In extremis – hijacked aeroplanes, ‘collateral damage’ and the limits of criminal law’ [2006] Criminal Law Review 579–592

[73] Michael Bohlander, ‘In extremis – hijacked aeroplanes, ‘collateral damage’ and the limits of criminal law’ [2006] Criminal Law Review 579–592

[74] R v Dudley and Stephens (1884) 14 QBD 273

[75] Re A (Children) (Conjoined Twins: Surgical Separation) [2000] 4 All ER 961.

[76] The foetus is recognised to have interests in English law but it is not equivalent to a person.

[77] José María Rodríguez Santiago and Miguel Beltrán Felipe, ‘Shooting Down Hijacked Aeroplanes? Sorry, We’Re Humanists. A Comment On The German Constitutional Court Decision Of 2.15.2006, Regarding The Luftsicherheitsgesetz (2005 Air Security Act)’ [2007] ExpressO Preprint Series <https://www.unodc.org/tldb/pdf/EssayCivilAviation1.pdf> accessed 13 April 2016.

[78] European Court of Human Rights, ‘European Conventions Of Human Rights’.

[79] David Hoffman and John Rowe, Human Rights In The United Kingdom (3rd edn, Pearson 2010).

[80] David Hoffman and John Rowe, Human Rights In The United Kingdom (3rd edn, Pearson 2010).

[81] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[82] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[83] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[84] European Court of Human Rights, ‘European Conventions Of Human Rights’.

[85] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[86] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[87] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[88] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[89] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[90] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[91] McCann and Others v. the United Kingdom case [1995] ECHR 18984/91

[92] European Court of Human Rights, ‘European Conventions Of Human Rights’.

[93] Andronicou v Cyprus [1997] ECHR 80

[94] Osman v. the United Kingdom [1998] ECHR 101

[95] Osman v. the United Kingdom [1998] ECHR 101

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