The Hamburg Docket: On a Court That Must Not Read Flags

The principle operating here, stated plainly, is: an act of destruction may go unexamined when the person accused of it fights on the side we favour. No German minister has spoken these words. Many Europeans have nonetheless lived by them since 2022, when the pipelines beneath the Baltic were torn open and much of the continent decided, with visible relief, that the matter was very difficult to investigate. Let us ask whether this principle, universalised, produces coherence or contradiction.

The test is not complicated, though its result is uncomfortable. Suppose every state adopted the maxim. Each would then prosecute sabotage only when the saboteur wore a disfavoured uniform. The word “sabotage” would stop naming a kind of act and start naming a kind of enemy. A criminal law that depends on who the defendant is, rather than on what was done, does not merely produce bad outcomes. It ceases to be law in any sense that reason can recognise. It becomes a weather report on alliances. The maxim does not lead to a world that is unpleasant. It leads to a world in which the concept it relies on, a crime against shared infrastructure, can no longer be thought. That is a contradiction in conception, the strictest failure a principle can suffer.

Here lies the claim I wish to advance, which is less obvious than it first appears. The trial in Hamburg is chiefly a test of the German Republic’s maxim, and only secondarily of Serhii Kuznetsov’s conduct. I must be careful on this point. Herr Kuznetsov denies taking part in the attack, and I will not convict him in an essay when a court has not convicted him in a courtroom. Whether he dived, steered, planned, or was nowhere near the Baltic is a question of fact, and philosophy has no instrument for answering it. What philosophy can examine is the principle by which German prosecutors decided to bring him before a judge at all. Their action is complete and visible.

The strongest objection deserves its full weight. Ukraine was invaded. The pipelines carried revenue for the invading state and gave it leverage over European capitals that were already wavering. A soldier who struck at that leverage, if any soldier did, struck at a means of war. On this view, prosecuting him in Hamburg punishes the defender while the aggressor watches with amusement. Is Germany not obliged, by everything it claims to stand for, to look away?

I answer that this objection proves too much, and one sees the problem as soon as it is generalised. The maxim “one may destroy any infrastructure that funds one’s enemy” authorises every belligerent to sever every cable, pipeline and grid that carries anything of value to the other side. Neutral parties would have no protection, and in the Baltic the neutral parties include the seabed itself, along with the Danish and Swedish waters through which this damage spread. Germany co-owned the very pipes at issue. A principle that permits destroying a third party’s property in order to injure an adversary has turned the third party into a mere instrument, an object to be broken for someone else’s purposes. This is precisely what the formula of humanity forbids, and it applies to nations as well as to persons, since nations are only persons acting together.

There is also a comic element here, which I can see from Konigsberg without leaving my chair. For a long while the governments of Europe appeared to treat the inquiry as a man treats a letter he suspects contains a bill. They left it on the table. They looked at it when guests came. Hamburg is the moment someone finally opened the envelope, and the anxiety in several capitals is that of people who had hoped the bill was addressed to another house.

The humanity formula has one more task. If Herr Kuznetsov did act, he did not act alone or on his own account. A state that ordered such a thing and then left a single soldier to answer for it in a foreign court would be using him merely as a means. It would spend his liberty to buy its own deniability. The duty of truthfulness therefore extends beyond Berlin to Kyiv: whoever gave orders owes the court an account, not an absence.

The duty that follows for the Hamburg court is narrow and absolute. It must judge the act, not the uniform. It must presume the man’s innocence until evidence removes it, and it must do this with exactly the same rigour it would show a Russian sailor in the same dock. Picture the clerk calling the case. She reads the defendant’s name aloud, and for one moment the room is required to forget which army he served.