The one-eyed state

In its ruling of June 29, 2020, the Federal Supreme Court acquits an air traffic controller charged by the public prosecutor's office. On August 20, 2012, he had caused an allegedly dangerous proximity of two aircraft at Zurich's Kloten Airport. The Federal Supreme Court supports the ruling of the cantonal lower court and explains in its reasoning that a sufficiently concrete danger never existed. This would be a prerequisite to be able to order a penalty according to the applicable law. The fact that the public prosecutor's office did not accept the verdict of the lower court and took the case to the Federal Supreme Court makes one sit up and take notice. Was there really a need for this state fervor?

The criminal offense was about endangering public safety. There is nothing wrong with the fact that the state actively seeks to ensure this. On the contrary. However, when it comes to the question of how it does this, doubts arise that we in society should think about. It is no coincidence that the aviation industry is raising its voice critically in this matter. After all, when it comes to ensuring public safety, it is particularly called upon. So it is obvious that knowledge has accumulated in this high-risk area and concepts have been developed that show how safety can be ensured and further improved in highly complex socio-technical systems.

When reading the federal judgement, it becomes clear that according to current law, a threat to public safety is only seen in relation to the actions of a fallible human being. The state acts as if public safety could be endangered by human misconduct alone. In doing so, it negates all the hotspots dormant in the organization and the overall system that have a demonstrable negative impact on safety. So, once again, we miss the assessment of the systemic aspects. It is as if they are non-existent. What an incredible oversimplification. It is easy to live in such a trivialized world view. But just judgments, ones that have something to do with the world as people experience it, can only be made by such a practice by chance or by detour. As in this case, where a danger brought into play by the public prosecutor's office was not seen by the federal court.

Understanding the systemic perspective

Actions of people working in complex systems are subject to manifold influences of context.  To understand this, we don't even need to consult the research of great behavioral economists such as Nobel Prize winner Daniel Kahnemann. It is quite sufficient if we look at the most obvious linkages.

The highest and most important aspect is the opening of criminal proceedings with their negative influence on the reporting behavior of frontline employees. Under current criminal law, which punishes not only intentional but also slightly negligent acts, reports of safety-relevant events are therefore always associated with fear on the part of the reporters. The resulting reluctance to report undermines the safety culture in the company and in the entire community. This is serious because it diminishes the safety management database and prevents effective safety barriers from being put in place.  To the chagrin of the public, who like to feel safe on planes.

From the publicly available documents of the case mentioned, it is not clear whether the controller disregarded or violated applicable rules with his actions. We must or may assume that he acted in accordance with the rules. Otherwise, this circumstance would certainly have been dealt with prominently. Does he now bear sole responsibility for what happened? The case is a prime example of incidents in highly complex systems in which undesirable events can occur even though everyone follows the rules. 

It is also not apparent whether his actions did not comply with 'best practice' in air traffic control. It is not addressed whether another controller would have acted in the same way in the same situation. The second aspect, in particular, is of major importance if one wants to do any justice to the accused person. This shows that the usual practice in the administration of justice to involve non-certified experts as in other countries is not purposeful. What is needed is expertise in the specific working environment of the person concerned, which also includes the culture of the company.  This is where one would find the answer to the question of whether he or she was following a culturally anchored value system that places an inadequate value on the efficiency of order completion. Front-line decision-makers are confronted dozens of times a day with a conflict of objectives that asks them to choose between earnestness (safety) and efficiency. Since the company leaves them alone to make this decision, they understandably follow standard practice. They decide the way things are done in this company. They act according to rules that are written in big letters on the wall but cannot be found in any book. Is it fair when, in the event of an incident, they are accused of not having paid enough attention to the earnestness of the execution of the order and thus to safety? This, although everyone knows that if they always opted for earnestness, the whole operation would come to a standstill? 

If, in the aftermath of an undesirable event, a judgment is passed on a decision-maker on the front line without compellingly clarifying these issues, that is not honest. It is undifferentiated and cheap because it fails to hold all the other stakeholders who participated in the design of the system accountable. All of this shows the one-eyed attitude of the rule of law and how ignorant it deals with the modern, complex world in which aviation stakeholders operate on a daily basis.

The legislature is challenged

This is not a criticism of the actors in the legal field. They are required to enforce the law. It is a criticism of the legislature, which continues to tolerate such conditions, tacitly tolerating them and leaving us citizens wondering, shaking our heads, even perplexed. We have a legitimate demand that attempts be made to ensure public safety with the knowledge available today. The approaches developed in the distant past, when man was not yet active in complex socio-technical systems, where his actions were always directly causally linked to the result of his actions, clearly fall short today.

It is not a matter of freeing man from his responsibility. It is a matter of appreciating his actions with a holistic view and taking into account the manifold systemic influences. Anything else is dishonest.

We can no longer afford not to look in the mirror. At some point, we must face the fact that we have built systems that we can no longer fully control and in which we have people working who are fully exposed to systemic influences. Treating them like cannon fodder in the event of an incident regardless of these circumstances is not okay. Sometimes they 'survive' and are acquitted as in this case, sometimes they are punished. The only thing that is certain about these seemingly archaic procedures is that all other stakeholders who have actively participated in the construction of the complex systems and therefore share responsibility always get off the hook. This simple reduction of consideration to the acting individual is not worthy of a civilized society.

What we need

We have learned in aviation that we need to approach safety with a systemic approach, in which humans take on the gatekeeper role thanks to their tremendous adaptability. We have learned that errors are important symptoms of a system that is not functioning optimally. Therefore, we understand the error as a learning opportunity and do everything possible to draw the right conclusions from it. The Just Culture helps us to do this. In each individual case, we use a balance check to determine whether it is suitable for learning or whether there has been a grossly negligent or even deliberate violation of the applicable rules. Of course, both are not accepted and will be punished. How we as a society can deal with this issue has been outlined by the umbrella organization of the Swiss aerospace industry / AEROSUISSE in its white paper "Anchoring the Just Culture Principles in Swiss Law" using the example and context of aviation.

AEROSUISSE: Verankerung der Just Culture Prinzipien im Schweizer Recht

Translation of the document is pending