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Over a period that has now almost reached a full decade, the end of the German Democratic Republic (GDR) and the unification of Germany have evoked a myriad of legal and constitutional problems. Some of these issues - such as questions concerning the nature of public employment after the dismantling of the GDR state - have affected vast segments of the eastern population. Yet few of these great changes involve issues of the legal and philosophical difficulty, found in one particularly well-known set of cases - the homicide prosecutions of border guards who sought to prevent, by deadly force if necessary, the flight of GDR citizens over the Berlin Wall or elsewhere across the border into western Germany. Similar questions are presented by cases involving higher GDR authorities, such as members of the Communist Party (SED) Politburo, who were also convicted for their role in the deadly border regime.
Broadly speaking, these decisions raise two kinds of issues. First, there is the legal and philosophical question - found in many transitional periods - of whether a new government may legitimately punish reprehensible actions that might have been lawful under the old regime. Second, there is the perhaps speculative question of whether these well-known decisions may give rise to broader political interpretations in the continuing political life of the united country. In this article I would like to comment on both sets of issues. In Part I, I will review the history of these prosecutions and then turn in Part II to an analysis of the legal arguments employed by the German courts. In Part III, I conclude with some comments on the manner in which these cases might be interpreted in united Germany.
I. The Prosecutions of the Border Guards and the GDR Chain of Command
THE BORDER GUARDS CASES
Most of the GDR Border Guards cases followed a typical pattern: late at night, guards noticed that a person or persons had almost succeeded in crossing the border. After calls and warning shots proved unsuccessful, the guards fired automatic weapons, with fatal results. In one case, for example, the victim was hit in the back "as he already had one hand on the top of the Wall."(1) In another case the victim was shot as he was swimming across the River Spree, which marked the border in a part of Berlin.
It was customary in such cases for the guards to receive official praise and rewards for their actions. But after unification - often many years later - they were put on trial for homicide. In these cases, the guards may not have wanted to kill the victim - perhaps they just wished to interrupt the escape - but they knew that automatic fire is imprecise and that death was a distinct possibility.(2)
The Unification Treaty between East and West Germany provides that in cases of this sort either West German or former East German law should apply, depending upon which law was "milder." Accordingly, the guards were generally convicted of manslaughter under provisions of West German law which was "milder" because it provided lesser penalties in some instances.(3)
There have been more than 90 of such cases up to the present.(4) But there would have been considerable unhappiness if the prosecutions had stopped at the level of the border guards who actually pulled the trigger. The guards were young, often not very worldly individuals, frequently from remote small towns,(5) who were carrying out the policies of more sophisticated leaders. Accordingly - after the culpability of the guards themselves was legally established - indictments were issued against those higher in the chain of command.
NATIONAL DEFENSE COUNCIL CASE
At the outset, the first of these later trials promised to be the most spectacular. Charges were filed against members of the National Defense Council, a constitutional organ whose task had been to set policies and guidelines for the GDR Defense Ministry - such as plans for installing deadly land mines along the border.(6) Erich Honecker, SED party leader, was chair of the Defense Council, and Stasi chief Erich Mielke was also a member. Both were charged in this case. But, in a bitterly controversial decision, the Berlin Constitutional Court declared that continuation of Honecker's trial would violate human dignity because he was fatally ill with liver cancer and would die before the long process could be completed.(7) The proceedings against Mielke were also severed in light of his pending trial on a 60-year old murder charge; and the case was ultimately dropped because of Mielke's ill health.(8)
Deprived of its star defendants, the trial nonetheless ground on, resulting in three convictions. Two of the convicted defendants were highly placed members of the Defense Ministry, Heinz Kessler and Fritz Streletz. Kessler, particularly, had witnessed the entire history of the GDR: as a Wehrmacht soldier in World War II he had fled to the Russian side and helped establish the "National Committee for a Free Germany" in Soviet prison camps; back in Germany after the war, he was cofounder of the Communist Party youth group (FDJ); he assumed a leadership role in the GDR army upon its founding in 1956, and eventually became Defense Minister in 1985.(9) Streletz had also been a powerful figure in the Defense Ministry for decades: he was deputy minister under Kessler, Chief of Staff of the GDR army, and secretary of the National Defense Council.(10) The third defendant, Hans Albrecht, was a long-time party functionary who directed a region that bordered on the Federal Republic.
The highest civil and criminal court of Germany (known as the Bundesgerichtshof or BGH) found these defendants guilty of "indirect participation in manslaughter" and upheld, and in one case increased, their prison sentences.(11) The convictions were also affirmed in an important decision of the German Constitutional Court.(12) The defendants apparently planned to file a further petition in the European Court of Human Rights.(13)
"KOLLEGIUM" CASE; BORDER GENERALS CASE
Other high-ranking military officers were also tried. Four GDR generals were convicted of attempted manslaughter and complicity for their work - in the "Kollegium" (or inner circle) of the GDR Defense Ministry - on the Ministry's Annual Order 101, which regulated the border regime.(14) Below the level of the ministry, six generals of the GDR border troops - including its last chief, General Klaus Dieter Baumgarten - also received prison terms for carrying out the provisions of Annual Order 101, by issuing more detailed instructions to the troops,(15) More recently, a general in command at the Berlin Wall received a sentence of five years imprisonment; four subordinates received lesser sentences.(16)
THE POLITBURO CASE
The most long-running of the cases, however, was the homicide prosecution of members of the SED Politburo - the ruling organ of the East German Communist Party. Originally, seven defendants were charged, but through illness and death their number was reduced to three. These were: Egon Krenz, the long-time heir apparent (or crown prince)(17) of the GDR who, for a short period in the revolutionary days of 1989, did indeed succeed Erich Honecker as general secretary of the SED; Gunter Schabowski, editor of the SED party newspaper and, later, party leader in Berlin, who will go down in history as the person who (perhaps unintentionally) announced the opening of the Berlin Wall in November 1989;(18) and Gunther Kleiber, an expert in electronic data processing, who was minister for machine and vehicle construction from 1973 to 1986.(19) After some initial interruptions, the Politburo trial proceeded for more than a year and a half before the three defendants were convicted and sentenced to prison.(20)
One peculiarity of this case was that the Politburo itself - while in many ways the ruling organ of the GDR state - had apparently issued no major policy or order relating to the border during the rather substantial period in which the defendants had been members. Accordingly, the prosecution initially argued that these defendants were guilty of manslaughter (or attempted manslaughter) by omission - for not having implemented affirmative measures to "humanize" the border regime.(21) But, in a preliminary ruling, the trial court found that the defendants could nonetheless be tried for a more active role;(22) and the prosecution ultimately argued that the Politburo had made some decisions during this period, which "perfected . . . strengthened, and perpetuated" the border regime.(23)
As in the National Defense Council Case, defendants also claimed that they were innocent because the GDR border - which was also the border between the two great power blocs - was actually not regulated by the GDR, but rather by the Soviet Union and the Warsaw Pact. Egon Bahr, architect of Chancellor Willy Brandt's "Ostpolitik" of the 1970s, indeed testified in support of this view.(24) In contrast, the prosecution argued that the GDR government did in fact have a significant amount of discretion with respect to the carrying out of the border regime, and the court ultimately accepted this position.(25)
II. The Philosophical and Legal Problems
THE NONRETROACTIVITY PRINCIPLE IN GERMAN LAW
The convictions of these high officials, as well as the numerous convictions of the border guards themselves, may have satisfied some observers. Yet they raised serious problems under the German constitution (or Basic Law) and under the fundamental principle prohibiting retroactive or ex post facto punishment. This principle, accepted in all liberal legal systems, holds that a person may not be punished for an act that was not prohibited by applicable law at the time the offense was committed. The purpose of this principle, which has been recognized at least since the seventeenth century,(26) is to prevent a government from punishing political enemies or others at whim - by creating new rules applicable to events in the past or by punishing without any rule at all. The principle is intended to create a sense of security in citizens and to remove the constant terror that may exist when no one knows what …