limits of the imperative for defense of others

Question

German Law mostly requires you to defend others that are in danger. In a situation where someone's life is attacked and your only possible way of helping is the use of (probably) deadly force, are you obliged to use it? Many people's morals says no matter what they may never use deadly force (e. g. the ten commandments in Christianity)… Also, does the obligation of defense extend to self-defense or is that one optional?

Answer 1

The German StGB only penalizes failure to render assistance if “it is necessary and can reasonably be expected under the circumstances, in particular if it is possible without substantial danger to that person and without breaching other important duties”. I think that assisting in self-defence can rarely be expected reasonably, and being required to wield deadly force against one's convictions even less so.

Introduction

Emergency situations such as self-defence can justify other acts. Self-defence is “any defensive action which is necessary to avert a present unlawful attack on oneself or another”. If necessary to protect higher rights outside of self-defence, such as “when faced with a present danger to life, limb, liberty, honour, property or another legal interest which cannot otherwise be averted”, then otherwise unlawful acts might be justified “if, upon weighing the conflicting interests, in particular the affected legal interests and the degree of the danger facing them, the protected interest substantially outweighs the one interfered with. However, this only applies to the extent that the act committed is an adequate means to avert the danger.”

Does German law require you to defend others? Not necessarily. Clearly, the right to self-defence allows you to defend others. Use of deadly force is justifiable if it is necessary and adequate in the situation, or if you only exceed the limits of self-defence “due to confusion, fear or fright”.

But you only have an obligation to render assistance if this can be reasonably expected from you. Here, the relevant questions are:

• Q1: Can assistance in the meaning of § 323c StGB involve assisting in self-defence situations?
• Q2: If assisting in self-defence can be required, can there be a reasonable expectation that you use deadly force?

Q1: Can assistance in the meaning of § 323c StGB involve assisting in self-defence situations?

I don't think it is possible to answer Q1 definitely, but I'd tend to answer it in the negative.

On one hand, it can be argued that an attack is not an emergency that would give rise to a duty to render assistance. The § 323c StGB applies “in the case of an accident or a common danger or emergency”. These terms have more detailed definitions in practice, so that an accident is any sudden event that substantially endangers an individual's legally protected interests or rights. For example, an injury or sudden illness would be such an event. Thus, the failure to render assistance is is primarily a duty to rescue, such as by helping a drowning person to land or by rendering emergency medical care.

On the other hand, an attack could also be considered a sudden event that endangers an individual. I found a case that explicitly supports this, but only in a parenthetical remark. Security/bouncers were sued for failing to prevent the continuation of a brawl in the parking lot of a disco. In a judgement from 2010-02-19 in case 4 O 381/09, the Landgericht Limburg mentions that:

A duty to intervene in the event of criminal offenses on a publicly accessible parking lot exists within the regulations on failing to provide assistance (§ 323c StGB). All of these questions are not at issue here.

(Eine Verpflichtung zum Einschreiten bei Straftaten auf einem öffentlich zugänglichen Parkplatz besteht im Rahmen der Vorschriften über die unterlassene Hilfeleistung (§ 323 c StGB). Um all diese Fragen geht es hier nicht.)

Other cases that involve the intersection of § 32 self-defence and § 323c failure to render assistance only seem to discuss failure to provide medical assistance to the previous attacker after a successful self-defence.

The LG Limburg judgement only mentions that becoming aware of a crime can establish a duty to intervene, but as this remark is not relevant for the case it doesn't consider whether the intervention can also be reasonably expected under the circumstances.

In most cases, aiding in self-defence cannot be reasonably expected because this would put the helping person into substantial danger. However, this depends a lot on the context. E.g. it might be possible to argue that such an intervention can be expected more reasonably from a person who is trained in hand to hand combat and is therefore able to avert harm to themselves. Some individuals might also have a more specific duty to protect the attacked person, such as on-duty police.

If we assume that a person can be reasonably expected to aid in self defence in a particular context, we can continue to Q2 and ask whether there could be a duty to use deadly force.

Q2: If assisting in self-defence can be required, can there be a reasonable expectation that you use deadly force?

We are already deep into hypotheticals based on hypotheticals, so that the most reasonable answer is “probably not”. As a continuation of the previous section, this depends on whether the use of deadly force can be reasonably expected.

What actions can be reasonably expected can be determined after the fact by an objective observer. For example, all drivers are trained in first aid. Thus, a driver who is not incapacitated themselves can be reasonably expected to render first aid to others after a car crash.

The person's belief system might affect what that person is capable of doing. Such beliefs have constitutional protection and cannot be trivially overridden. But different rights and interests must be weighed against each other. In case of an imminent threat to life, other rights and interests weigh less heavy. For example, lets assume that a man will not touch women, based on religious beliefs. If this man is involved in a car crash and fails to render first aid to an injured woman, it must be asked whether rendering first aid can still be reasonably expected in that context. I would think that the woman's right to life overrides the man's religious beliefs in that emergency context.

But context is important. E.g. in the “Gesundbeter” decision from 1971, a man was accused of failing to bring his dying wife to the hospital. The couple had a sincerely held religious belief that rejected blood transfusions, and instead preferred prayer. The Bundesverfassungsgericht decided that the man had acted legally in letting his wife die, but only because both he and his wife sincerely believed prayer to be the best treatment option. It could not be expected of the man to act against both his and his wife's convictions. The court weighed religious freedom to be more important than common sense in this specific case. (This should also resolve your other question: you are not required to defend yourself.)

A life or death situation is extreme, and can shift the balance of other rights. As discussed in the introduction, deadly force can be permissible in such a situation. As discussed a few paragraphs above, such extreme situations may be able to override some religious beliefs, but not without limits. Wielding deadly force is also an extreme measure that greatly conflicts with other rights. To summarize:

• for intervention through deadly force: saving lives
• against intervention through deadly force: attackers' lives, own safety, sincerely held beliefs

While by itself the tradeoffs between saving lives vs the attacker's lives or saving lives vs beliefs are comparatively simple, combination of all these factors greatly complicates the matter, and I do not think they can be overridden in any reasonable scenario. It might be possible to construct unreasonable scenarios in which the balance might be tilted, but these scenarios would read more like a SAW movie script.

Answer 2

Duty to rescue

In civil law systems, like Germany, people have a duty to do what is reasonable to rescue someone from danger. This never requires the person putting themselves in serious danger nor would it require a person with strong moral reservations about taking a life to do so.

In common law systems, like most of the English speaking world, there is no such duty unless the person concerned created the hazard or a “special relationship” exists between the people.