The right to life is absolute
Does everything recede before the protection of life? : Wolfgang Schäuble means the right thing, but says the wrong thing
Is the right to life and physical integrity an absolute value? Bundestag President Wolfgang Schäuble denies this. In an interview with Tagesspiegel, he says: “When I hear that everything else has to step back from the protection of life, then I have to say: This is absolutely not correct. Fundamental rights restrict each other. "
From his thesis that the protection of life is only a relative value, Schäuble derives an only relative duty of the state to save and protect life. This currently applies above all to the corona containment policy.
Schäuble's argument is reminiscent of his vehement criticism, back then as Federal Minister of the Interior, of a judgment by the Federal Constitutional Court. In the aftermath of the terrorist attacks of September 11, 2001, the question was whether a passenger plane that terrorists had kidnapped and directed towards a civilian target may be shot down. Have the passengers on board forfeited their right to life and physical integrity?
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The Federal Constitutional Court said clearly: No! This right could not be deprived of the passengers until their death. Balancing “life against life” violates the Basic Law. The state should not authorize anyone to sacrifice people in order to possibly save more people.
The principle of proportionality
Schäuble, on the other hand, relied on the Geneva Convention on the Protection of Victims of Armed Conflict. That only forbids attacks that are out of proportion to the expected military advantages. The principle of proportionality would, however, be maintained if the hijacked passenger plane were shot down by an airplane in order to avoid an even greater catastrophe such as a terrorist attack. The death of innocent people should be accepted in such a case.
Because of the clear judgment of the Federal Constitutional Court, Schäuble worked passionately and persistently for an amendment to the Basic Law that would allow hijacked passenger planes to be shot down.
Finally, the then President of the Federal Constitutional Court, Hans-Jürgen Papier, intervened in the debate and warned Schäuble to continue pursuing his plans. The "guarantee of human dignity" could "not be restricted even by a constitutional amendment," said paper.
There are extreme situations in which people cannot act without being guilty. Certain things, such as torture and murder, should be forbidden under all circumstances, and physical integrity should always be preserved. But sometimes the duty to rescue the one collides with the duty to protect the other.
No hope of absolution
In September 2002 Magnus Gäfgen kidnapped Jakob von Metzler, who was eleven at the time. He lured him into his apartment and strangled him. Gäfgen was caught, but was silent.
On the evening of the third day after the kidnapping, the urgent suspect was threatened with violence by Police Vice President Wolfgang Daschner so that he could tell the child's whereabouts. Daschner was later convicted of this threat. State officials are not allowed to torture or threaten torture.
A community must adhere to the absolute duty to protect people as well as to the absolute prohibition of torture and killing. This does not rule out that in extreme situations decisions are made that violate the principles after weighing up principle and consistency. Then the actors have to take responsibility without being allowed to speculate on absolution.
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To put it in a paradoxical way, when a defense minister asks whether he can, in the worst case scenario, shoot down a passenger plane hijacked by terrorists, the public's answer must be “no”. If he does it anyway - and stands up for it - many may show him respect.
If a police officer asks if in a desperate situation he can use the threat of torture to find where a kidnapped child is being hid, the answer must be "no". If he does it anyway - and stands up for it - he can become a hero.
More hurt than clarity
The corona crisis also has to be weighed up. Only a fool would deny it. But the discussion must be conducted without questioning the absolute validity of fundamental rights. How many rescued Covid-19 sufferers justify a mask requirement? How many justify an increase in unemployment? Such debates create more injuries than they produce in terms of clarity.
One of the most unreasonable demands of the corona crisis is that it plunges those responsible into moral dilemmas. None of them want to wantonly ruin the economy so that a few more intensive care beds become free. But there is a difference whether certain weighting aspects are included in the weighing up, or whether values are publicly relativized in order to be able to make weightings.
When Wolfgang Schäuble asks whether the protection of life is an absolute value, the answer must be “yes”. If he also includes other fundamental rights in his judgment in debates on weighing up the issues, he does so on his own responsibility. He can hope for absolution for it, but he cannot demand it.
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