According to the Unification Treaty, citizens of the former GDR could be tried for offenses that violated West German law, but punishment could not be imposed if the acts had been legal under East German codes. An exception to this last stricture, however, could be made in cases of such “extreme injustice” that the perpetrators must have known that they were violating international standards of human behavior. This of course was a recipe for legal confusion, not to mention political and social acrimony.
One of the early legal battles involved Erich Honecker, the former GDR dictator who had been instrumental in building the Berlin Wall and devising the measures to prevent escapes over the inner-German border. At first it did not look like Honecker would have to stand trial at all. On March 13, 1991, he had managed to fly to Moscow with Soviet assistance to avoid facing the charges that German prosecutors were drawing up against him. Bonn officially protested Russia’s role in spiriting its old minion out of Germany, but Chancellor Kohl had undoubtedly known of Honecker’s impending flight and was probably not sorry to see him go: after all, it could be highly embarrassing to try a leader whom the chancellor had personally welcomed in Bonn. By the spring of 1992, however, Kohl’s government decided that a Honecker trial could be a useful way to show eastern Germans that there were no grounds for their growing Ostalgie. Reminded of Honecker’s villainy, they might also be less inclined to condemn Kohl for failing to transform eastern Germany into a “blooming landscape.” The new Russian government of Boris Yeltsin, anxious to shake off reminders of its own communist past, and hoping for additional loans from Bonn, proved willing to return Honecker to the Federal Republic. Thus in late 1992 he was flown back to Berlin and clamped in Moabit Prison, the same jail in which the Nazis had held him in the 1930s. While many Ossis were glad to see him behind bars awaiting trial, there was considerable questioning, in both east and west, about the legitimacy of his arrest. To some, the treatment of Honecker looked more like vengeance than justice. Certainly he could no longer do any harm to anyone, save perhaps to those who had to listen to him endlessly protest his right to a tranquil old age. Moreover, medical tests revealed that he was suffering from cancer of the liver and stomach. Nonetheless, he was made to stand trial in November 1992 on charges of having ordered acts against life and liberty on the inner-German border. But after two months the trial was suddenly suspended on grounds of the defendant’s ill health, and Honecker was once again given his freedom.
The former dictator’s release prompted angry demonstrations in Berlin, mostly on the part of Ossis. The protesters were at a loss to understand how a man like Honecker, who had trampled on human rights, could successfully appeal his case on humanitarian grounds. Shortly after his release the old man flew to Chile to join his wife and daughter. Upon arrival in Santiago he was cheered by local leftists, who recalled with gratitude that the GDR had provided a refuge for some 5,000 Chileans fleeing the rightist dictatorship of General Augusto Pinochet.
Honecker’s partner in crime, Erich Mielke, also found himself in Moabit Prison awaiting trial in the early 1990s. His lawyers claimed that he was mentally unfit to defend himself, and he certainly seemed senile, barking orders to imaginary inferiors on a toy telephone kindly supplied by his guards, and hiding under his bed when the prison psychologist arrived to interview him. After a while he recovered sufficiently to blame Honecker for whatever wrongs the GDR might have committed. In the end, the authorities determined that Mielke was competent to stand trial, but the charges proffered against him had nothing to do with his role as GDR minister of state security (the prosecution’s case here seemed too weak); rather, he was tried for having murdered two policemen on Berlin’s Bülowplatz way back in 1931. If Honecker’s trial seemed questionable to some, the Mielke proceeding appeared doubly bogus, a misuse of the judicial process almost as egregious as Mielke’s own perversion of the law as Stasi chief. The trial ended in October 1993 in a six-year jail sentence for Mielke, who was almost eighty-five when he began his term.
Markus Wolf, the Stasi’s most brilliant foreign intelligence operative, was charged in 1992 with twelve counts of treason stemming from his work as head of East German Intelligence in the 1970s and 1980s. But the legitimacy of bringing Wolf to trial was debatable. Had he really done anything different than his West German counterparts? Was not spying an accepted practice of a sovereign state? Was not his real offense simply that of making Bonn’s counterspooks look bad? Foreign Minister Klaus Kinkel, who as a former head of West German Intelligence was particularly anxious to punish Wolf, lamely argued that the GDR spies had acted offensively, while FRG spies had acted only defensively. Wolf was brought to trial in September 1993. During the proceedings Kinkel made a brief appearance in court, and the encounter between these two former intelligence chiefs, one of them now a senior statesman, the other fighting to stay out of jail, struck Wolf as “in many ways symbolic of the trauma that East Germans were facing after unification. Their lives were on the slab, and the West held the scalpel for dissection.” On December 6, 1993, the court found Wolf guilty and sentenced him to six years in prison. His lawyer, however, appealed the decision to the Federal Constitutional Court in Karlsruhe, which in May 1995 overturned the conviction on grounds that spying for the GDR did not amount to treason, since espionage was a normal activity for a sovereign state. The verdict put Wolf and other former GDR spies in the clear for the time being, but it remained possible that they could still be tried for espionage activities committed in third countries.
While Wolf could plausibly argue that he had not done anything his western counterparts had not also done, this defense was unavailable to those who had ordered and carried out killings at the Berlin Wall and inner-German border. As we have seen, Ho-necker was brought up on charges related to the Schießbefehl (shooting-order), as was General Heinz Keßler, head of the National Defense Council. (Later, so was Egon Krenz.) In Keßler’s trial, it was shown that the GDR government had specifically authorized shooting as a last-resort measure to deter the “crime” of fleeing the country. East German officials, however, maintained that it was the Soviet Union, not the GDR, that had been responsible for the security procedures at the border.
As if unclear precisely where the order to shoot had originated, united Germany’s legal authorities focused much of their attention on the low-level guards who had actually carried out the killings. This of course raised the objection that mere cogs in the machine were being made to bear most of the responsibility for the operation. Not surprisingly, the defendants argued that they were only following orders and that their acts had not been illegal under East German law. Nevertheless, in 1992 a Berlin court found two young border guards guilty of the shooting death of Chris Gueffroy, the last fatality at the Berlin Wall (February 6, 1989). The guard who had fired the fatal shots received a sentence of three-and-one-half years’ imprisonment. In passing sentence, the court argued that an “intolerable disproportionality” existed between the “offense” of flight and the guards’ lethal response.
The complaint that it was mainly the smaller fry who were being held accountable for the border shootings was addressed in 1996 by a trial in Berlin of six former generals of the East German army. Among the defendants was Klaus-Dieter Baumgarten, a former deputy defense minister. Charged with nineteen counts of manslaughter and attempted manslaughter, all six generals were found guilty and sentenced to prison terms of varying lengths. Baumgarten, who was accused of complicity in eleven killings and of signing orders to shoot fugitives, received the longest sentence: six and a half years. “This is a political verdict,” said the general. He insisted that the border-security regime was a legal measure designed to thwart a Western invasion of East Germany.