By Oli Wiencke
Author’s note: The views expressed in this article in relation to the Popular Front for the Liberation of Palestine (‘PFLP’) are entirely separate from the author’s views on the current conflict in Gaza. The PFLP has been designated a terrorist organisation by the European Union, the United States, Japan, and Canada. Any condemnatory language used in relation to the PFLP is intended merely to reflect this designation, and does not convey a position on the current conflict.
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I’ll start in Germany with two stories, both about aeroplanes—they weren’t boats. The first happened 47 years ago, in the so-called ‘German Autumn’ (much like the Arab Spring, but with no sense of humour and more beer). 1977, in the Federal Republic we called West Germany, was a very bad time. Emergencies, violence, and the politics of terrorism affected society in a way that no Australian government in peacetime has ever had to deal with to any comparable degree. The Red Army Faction (‘RAF’) specialised in the practice of politics by violence and killing, of a kind that should have been forever eliminated in Germany after 1945.
There had been, around 1975, kidnappings of civil officials to pressure the release of convicted terrorists. The freed terrorists were flown with money to the Republic of Yemen. One of them later came back in 1977, and kidnapped the President of the German Employers’ Associations, Hanns Martin Schleyer. It was widely publicised, without a media blackout. The terrorist’s demands included not only the release of yet more convicted terrorists, but other demands which showed that there had been an escalation of the extent of political leverage available by that kind of violence. Helmut Schmidt’s government stood firm. Through the web of international terrorism, the PFLP took on a RAF referral job to hijack and ransom Lufthansa Flight 181, which was ferrying German holidaymakers home from sunburnt Majorca. After killing the captain, they too publicised their usual demands to release German RAF terrorists and, for good measure, some PFLP terrorists imprisoned in Germany as well. Still the government stood firm. Schleyer’s son realised his father was going to be killed in a manner not dissimilar to that of a televised ISIS beheading. He tried secretly to pay the ransom, with money that surely would have been sufficient to save his father. Inadvertent publicity scuppered that possibility. Either way, the government did not want to deal with terrorists.
So Schleyer’s son sued in a court that is superficially similar to our High Court: the Bundesverfassungsgericht (don’t bother trying to pronounce that), the German constitutional court in Karlsruhe. It’s not frightened of political questions. He argued that there were various provisions of the Grundgesetz (‘basic law’)—in particular, Article 1—that speak of the inviolable nature of human dignity.[1] He pleaded with the government to the effect of, ‘You should strike a deal with these criminals, to free my father and save his life.’
The court received the formal complaint around 1:00 pm on Saturday afternoon, convened the bench at 9:30 pm that day, and delivered a judgment at 5:45 am on Sunday. They ruled that the government did not have to do what the grieving son sought for his father. The next day, several of the RAF convicts in Germany committed suicide (that was the coronial inquest’s finding), and the following day, on the basis that their suicides amounted to something in the nature of murder in the warped view of the PFLP terrorists, Hanns Martin Schleyer was murdered by one of the PFLP terrorists who’d been freed two years before, when a bargain had actually been reached with hostage-takers.
What does this have to do with the inviolable nature of human dignity? Kant’s categorical imperative is a starting point for ethical thinking about political and social relations: it states, fundamentally, that none of us should use any of the rest of us as instruments, or means to an end in a Machiavellian sense. Yet the PFLP hostage-takers were doing just that. To be taken hostage is to be used as an instrument, or means, for ends—and that’s one of the philosophical explanations for why hostage-taking is a truly monstrous crime.
Much more recently, in 2006, the constitutional court in Karlsruhe received another complaint from a few different groups, including the associations of the flight crew staff, cockpit crew staff, and a number of other groups that are each affected by the conduct of safe aviation. There was legislation (without intended irony) called the Aviation Security Act (‘The Act’).[2] Preceding this, in 2001, as we all know, the Twin Towers had been destroyed by the use of passenger airliners as weapons. In a gruesome argument by the constitutional court, the innocent passengers had been turned into weapons; not only physically, but for propaganda as well. And so the German Bundestag (Federal Parliament) had, by a huge majority with multipartisan support, enacted legislation that included a carefully-graded set of lawful responses that involved the military. A stage in the gradation would be actioned when something of that kind—namely, the hijacking of an aeroplane within German airspace—was feared or declared to become a weapon, and the security of people in German territory was thereby threatened. The Act included an ascending set of responses, with their apex being the possibility of the Air Force shooting the passenger airliner down. Of course, this would mean the virtually certain death of everybody on board. To support this bewildering provision, the government put forward a nuanced argument to which my summary will surely do injustice.
It included a familiar utilitarian notion: the 200 on the airliner were doomed anyhow; their lifespans were to be measured in hours, whereas the lifespans of the thousands in the populated areas which might have been the targets of the hijacked airliner could look forward to much more. There is an unpleasant quantitation involved. But being unpleasant doesn’t make it unlawful, because part of the art of government will be dealing with the so-called ‘wicked problems’ to which there are no happy answers—but to which there must be an answer.
In 2006, upon the constitutional challenging of the Act, the court preferred the arguments of the various claimant groups, and they did so in terms which the ‘Sage of Königsberg’ would have recognised. Kant’s categorical imperative can be seen as virtually explicit on the pages of the reasons. The state has no right to render these people, who are victims of crime, objects for state purpose. They are not to be regarded as instruments for the end of preventing whatever mayhem is intended by the terrorists to unfold on the ground. Naturally, a macabre feature of the argument the claimants brought to the court in Karlsruhe was that the death of the passengers was certain if the lawfully authorised military force was engaged, whereas the death of anybody on the ground was by no means certain, as the tremendous act of self-sacrificing heroism of the passengers on the third hijacked airliner which crashed in Pennsylvania in 2001 reminds us.
The categorical imperative comes in a primary form that we should act, in our relationships with others, on the basis of a rule that we can universally apply. The English translation is ‘do as you would be done by’. We need to understand, particularly with governments who don’t always have decisions made by people who do identify with the plurality of the population, that it’s not ‘do as you would be done by’, but rather, ‘do as you would have you and everyone else done by’. It follows from this principle that you should act only in accordance with a rule that you can universalize—that you would never use fellow inhabitants of Earth, let alone your fellow citizens, as instruments for some governmental or personal aim. The familiar English rendering is that people are never a means; they can only ever be an end. In other words, the welfare interests of people, in order that they have their dignity as people, is an end. No government, organisation or regime should cause them to suffer as a means to produce some advantage for others.
The work of Immanuel Kant is still immensely important not just for Germanic and other continental European (civil law) systems, but for all legal systems in their wrestling with the normative justifications of their rules. Zooming back in on our own system of governance here in Australia, we come to ask: how did we end up with enacted legislation, executive policy, and daily administration of the system that has been (about an offshore facility) referred to in such morbid and dehumanising terms as ‘cleaned up’?[3] What would Kant say—what would any of the prophets of any of the Abrahamic religions say—about referring to the treatment of people who are either asylum seekers or, having been asylum seekers, are now accepted as refugees with convention protection, being held in places and under conditions designed for the declared purpose of deterrence? It’s one of the most revolting and blatant instances of instrumentalism that I’ve ever witnessed from a non-authoritarian or non-totalitarian government. The idea of deterrence features heavily in criminal law. It’s not instrumental in criminal law because it’s an element in the sentencing of a person for their offending. It’s understood in contemporary jurisprudence that a civilised view of sentencing necessarily involves consideration of deterrence. That’s not instrumental because the person must be punished, and as it will be done in public, there will be something in the nature of a lesson in this punishment, maybe for that person, maybe for others. At least, that’s the hope. But the idea that a government would select people who haven’t, under the rule of law, made themselves susceptible to punishment and impose upon them adversity in order to teach some lesson and mould other people’s conduct is to use them as a means, and to desecrate their human dignity as an end. The deliberateness of that policy revealed the intellectual and moral bankruptcy of those who advised, promoted, and reinforced it. How could anyone seriously have said that it’s the right thing to make asylum seekers and acknowledged refugees suffer in order that others not undertake the same risks as that first group took on their way to being so coldly received by Australia? If we really believed this was about preventing drownings—and, of course, the drownings must be prevented—then we wouldn’t be stopping boats; we’d be sending boats.
Endnotes
Grundgesetz für die Bundesrepublik Deutschland [Basic Law for the Federal Republic of Germany] art 1(1).
Luftsicherheitsgesetz [Aviation Security Act] (Germany) 15 January 2005, BGBl I, 2005.
Interview with the Hon Peter Dutton MP, Former Minister for Home Affairs (Barrie Cassidy, Home Affairs Portfolio, 18 September 2016).
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