After the breaching of the Berlin Wall in 1989--and before the end of the GDR and subsequent reunification of Germany in 1990--a special parliamentary commission was created to investigate the crimes and abuses that took place during forty years of communist rule.
Assessing responsibility for crimes in communist East Germany
Before the trials were to begin, the German court had to assess responsibility for communist era crimes. There was a widespread conviction throughout both German states that the nation was again having to confront the legacy of totalitarianism, as it had after the end of Nazi Germany in 1945. Former GDR leader Erich Honecker and his associates were considered guilty of specific crimes, and, as the leadership of the Socialist Unity Party, they created and maintained a severely unjust political entity, an Unrechtsstaat (state without law).
Judging the East German past
The most complex issue involved was how to approach judging the East German past. German Chancellor Helmut Kohl and Minister of Justice Klaus Kinkel were insistent that it should not appear that the legal mores of the Federal Republic were being imposed upon the former GDR leadership. Since Honecker and the others were now citizens of the Federal Republic, they were entitled to all protection of the Basic Law, including presumption of innocence. And, as quoted in A. James McAdams’ essay, the Basic Law specified “an act [could] be punished only if it was an offense against the law before the act was committed.”
Trial of East German border guards
In the first trial, the men admitted using weapons against people trying to flee East Germany. Their defense was that they were doing their duty as soldiers and acting according to the law of their country at the time. The revised Border Law of 1982 stated that “the use of physical force” was permitted in order to maintain security and order at the border. Additionally, the law allowed using weapons to “prevent the imminent commission of a crime.”
The judge in the trial was Theodor Seidel, and in his judgment emphasized that laws of a regime with a leadership that had “no form of legitimation” could not be respected. Thus he acted as if GDR statutes were irrelevant in this case. Seidel felt that the laws of East Germany contradicted the generally accepted basics of the rule of law. The two border guards on trial were convicted.
The second GDR border guard trial
The second trial had a different outcome because the court was careful to determine the verdict based solely upon the application of East German law. The judge in this case, Ingeborg Tepperwein, also considered the Border Law of 1982 in her ruling. She demonstrated that the defendants had exceeded their authority in shooting to kill, but did concede that GDR law allowed soldiers to use excessive force of some kind in order to prevent illegal border crossings.
Judge Tepperwein noted a similarity between East and West German law: both require that the methods used to prevent a crime be in proportion to the crime being carried out. Thus the judge argued that “the flight of a single, unarmed person” who posed no danger to other people or property is not enough of a crime to justify using deadly force. The judge added that East German Border Law was very specific in that guards should “preserve human life if possible.”
Finding both defendants guilty, she suspended their sentences after reading her verdict. She stated that the border guards were “operating in conditions that mitigated against completely independent action on their part.” Their crime was not inspired by “selfishness or criminal energy,” but by the special military and political situation that existed between the two German states at the time.
Erich Honecker is put on trial in Berlin
The Berlin Prosecutor’s office released an almost 800-page indictment charging Honecker and five other defendants with the crime of collective manslaughter. The indictment stated that as members of the East German secret National Defense Council, Honecker and the others completely influenced how the border was fortified. Thus, said the indictment, they and not the border guards were fully responsible for what happened at the state border. The document detailed procedures of the National Defense Council and included painstaking details of 68 of the hundreds of killings that occurred at the inter-German border from 1961 until 1989. Putting Honecker on trial was truly historic. He was the first German head of state--except for Admiral Doenitz after World War II--to be put on trial in over 800 years.
Honecker made a statement to the court--really an impassioned speech--portraying himself and his comrades as victims of a cruel twist of historical fate. He and his co-defendants were not responsible for the Berlin wall and the killings at the border, but the historical events beginning with Hitler’s accession to power in 1933 ending with the destruction of Germany and its division--as well as the Cold War that followed--were to blame. Honecker claimed that his trial was a political trial of victors over the vanquished.
Proceeding suspended against defendants due to poor health
The former GDR leader was elderly and sick--he was dying of liver cancer. So, another issue came into play during the trials. In the Basic Law, the most important guarantee is its promise to protect human dignity. Thus, former Prime Minister Willi Stoph and Security Chief Erich Mielke, both of whom were ill, had proceedings against them “temporarily” suspended. Then the court decided to postpone Honecker’s trial and dismiss all charges against him because of his health. There was public outcry about this, but the court had no choice.
The trials of the three remaining healthy defendants continued. At its conclusion, Defense Minister Heinz Kessler, his chief-of-staff Fritz Streletz and Suhl District Party Secretary Hans Albrecht were all found guilty of their charges, the first two as “instigators” in border deaths and the latter as an accessory.
Sources
Eric Brothers - Eric Brothers' forthcoming book,The Berlin Ghetto, will be published by The History Press in the U.K. in 2012.
