New government terror powers a "license to kill"?
01 May 2004
On 18 June this year, the German Lower House (Bundestag) passed an amendment to the Air Safety Act (Luftsicherheitsgesetz) that will allow the government to order the air force to intervene in cases of hijacking and, if necessary, to order to shoot down civilian aircraft if they is a danger they will be used as a weapon. The Government agreed the draft bill on new regulations for air safety tasks on 5 November 2003 and passed it on to the Federal Council.
Article 13 of the amended Act allows for the government, under certain preconditions, to call on the armed forces to support the state police from the air. The power to shoot down a civilian aircraft in these cases is regulated under Article 14 Section 3 (the last resort clause), which will only be permitted "if one can assume according to the circumstances that an airplane is to be put into action against human life and if shooting down the plane is the only means to avert a present danger." [1]
The government's press release from 5.11.03 says:
Events, such as 11 September 2001, have shown that there are threats from airspace which can no longer be dealt with adequately through police action and sanctions alone. This threat is not necessarily from terrorists, it can also come from mentally deranged individuals, as happened on 5 January 2003 when a power glider was hijacked in Frankfurt am Main. For this reason Federal Government has decided to support the police by military means in combating severe threats from airspace.
The measures outlined in Section 14 of the Air Safety Act lays down the following
(http://www.bundesregierung.de/):
(1) To prevent the occurrence of a particularly severe disaster the armed forces may divert aircraft in airspace, force them to land, threaten to use armed force or issue warning shots.
(2) From several possible measures the one chosen should be that which is likely to cause least harm to the individuals and the general public. The measure may only be used for as long and as far as required to fulfil its purpose. It shall not result in a disadvantage that is clearly out of proportion to the desired result.
(3) Direct intervention with armed force is only permitted if under the circumstances it is assumed that the aeroplane is intended to harm human life and if it is the only means to avert this present danger.
(4) The measure stated in Para 3 can only be ordered by the Federal Defence Minister or in the case of representation by a member of the Federal Government authorised to represent the minister. Furthermore, the Federal Defence Minister can give the Chief of Staff of the German Air Force (Luftwaffe) general authorisation to order measures stated in Para 1.
In addition, the new Act lays down general safety regulations, amends the existing law to incorporate the existing EU regulation [2] and empowers authorities to check on foreigners within the framework of the so-called reliability test (Zuverlässigkeitsüberprüfung) which student pilots have to undergo. Authorities will thereby introduce a standard check with Germany's central database on foreigners and foreigner authorities when foreign student pilot apply.
The law has been criticised, particularly by the liberal party Freiheitlich Demokratische Union Deutschlands (FDP), some of whose members have announced that they will go to the Constitutional court if the newly-elected president of the German Republic signs the law. Former regional Interior Minister, Gerhart Baum, former federal minister of justice Sabine Leutheusser-Schnarrenberger and Burkhard Hirsch, the FDP's constitutional expert, have initiated an expert report on the constitutionality of the amended Act and are calling on the president not to sign it into law. If the law comes into power, Baum announced, they will test the law before the Federal Constitutional Court.
Baum, Leutheusser-Schnarrenberger and Hirsch have already had success in reversing a law on grou