The Aviation Security Act Decision (BVerfGE 115, 118): Human Dignity and Life

The Aviation Security Act Decision (BVerfGE 115, 118, 15 February 2006) is one of the most significant judgments of the Federal Constitutional Court on the absolute protection of human dignity. The Court struck down section 14(3) of the Aviation Security Act (Luftsicherheitsgesetz), which authorised the Federal Minister of Defence to order the shooting down of hijacked aircraft if it could be assumed that the aircraft was intended to be used against the lives of others and if shooting it down was the only means of preventing the danger. The Court held that the state may not intentionally kill innocent persons even to save a greater number of lives, because such action violates the absolute guarantee of human dignity and the right to life.

The Impugned Provision

The Aviation Security Act of 2005 was enacted in response to the terrorist attacks of 11 September 2001. Section 14(3) authorised the Minister of Defence to order the direct use of armed force against an aircraft, including its shooting down, if circumstances indicated that the aircraft was intended to be used against the lives of people and if the use of armed force was the only means of preventing the imminent danger. The provision applied to aircraft that had been hijacked or otherwise weaponised, including aircraft carrying innocent passengers and crew who were not responsible for the hijacking. The Federal Government argued that the provision was necessary to protect the lives of potential victims on the ground, who would otherwise be defenseless against an attack using a hijacked aircraft as a weapon.

The Right to Life and Human Dignity

The Court held that section 14(3) violated the right to life under Article 2(2) GG in conjunction with human dignity under Article 1(1) GG. The State’s obligation to protect human dignity is absolute and admits no balancing against competing interests. The Court applied the object formula (Objektformel), holding that the passengers and crew of the hijacked aircraft would be treated as mere objects of state action if the State killed them intentionally as means of saving others. Their lives would be completely at the disposal of the State; they would be deprived of their status as legal subjects and treated as objects of rescue efforts. The Court held that such instrumentalisation violates the core of human dignity, which is inviolable under Article 79(3) GG and cannot be balanced away by any consideration of consequences.

The Prohibition of Intentional Killing

The Court held that the State may not intentionally kill innocent persons, regardless of the number of potential victims that might be saved. The intentional killing of innocent persons constitutes a fundamental violation of their human dignity, which is absolute and non-derogable. The Court distinguished between the killing of innocent persons as an unintended side effect of legitimate state action (collateral damage, which may be justified under certain conditions) and the intentional killing of innocent persons as a means of achieving a state objective. Section 14(3) authorised the intentional and targeted killing of innocent passengers and crew, not merely as an unintended consequence but as the direct means of preventing the crash. This distinction was central to the Court’s reasoning: the passengers and crew were not the attackers but the victims of the hijacking, and the State’s response treated them as interchangeable objects that could be sacrificed for the greater good.

The Balancing Approach

The Court acknowledged that the State has a duty to protect the lives of potential victims on the ground under the duty to protect (Schutzpflicht) derived from Article 2(2) GG. However, the duty to protect cannot justify a violation of human dignity. The Court held that human dignity is absolute and cannot be balanced against competing constitutional values. Where a measure violates human dignity, no justification is possible, regardless of the number of lives that might be saved. The Court recognised the tragic conflict faced by the Minister of Defence but held that the constitution provides a clear answer: the State may not intentionally kill innocent persons, and the Minister’s duty is to use all other available means to prevent the attack, accepting that some measures may not succeed.

The Distinction from Emergency Rescue

The Court distinguished the Aviation Security Act case from cases involving emergency rescue where a person is killed unintentionally. In Notstand situations under section 34 StGB, a person may be killed as an unintended side effect of a rescue operation where the means used are proportionate and the killing is not the deliberate objective of the action. The shooting down of a hijacked aircraft, by contrast, has the intentional killing of the passengers and crew as its direct objective; the destruction of the aircraft and the killing of its occupants is the means chosen to prevent the attack. This intentional character distinguished the case from standard emergency rescue scenarios and brought the absolute prohibition of human dignity violations into play.

The Right to Judicial Review

The Court also held that section 14(3) violated the right to effective legal protection under Article 19(4) GG. The provision authorised the Minister of Defence to order the shooting down of an aircraft without any prior judicial review and without the possibility of subsequent judicial review, as the passengers and crew would be killed and could not challenge the order. The Court held that even in extreme emergency situations, the fundamental right to judicial protection applies, and that the law must provide for at least subsequent judicial review of the decision. The impossibility of any judicial review in the case of fatalities rendered the provision unconstitutional.

Legacy and Comparative Significance

The Aviation Security Act Decision is a landmark judgment on the absolute protection of human dignity in German constitutional law. It has influenced constitutional and human rights discourse internationally, including debates about the use of lethal force in counter-terrorism operations. The decision has been criticised by some commentators who argue that it imposes an unrealistic constraint on state action in extreme emergencies and that a balancing approach would better serve the constitutional order. The Court’s response is that human dignity is the supreme constitutional value precisely because it cannot be balanced away, and that the State’s obligation to protect human dignity requires it to respect the inviolability of each individual even in the most tragic circumstances.