Settling Accounts with History: Germany’s Difficulties in Dealing with Political Crime Committed in the German Democratic Republic1

 

 

By Professor GISELA SHAW

The collapse in 1989/90 of the Eastern Bloc confronted all former member states with the need to deal with political crime committed under the previous Communist regimes. This article investigates two issues: (1) What options were open to them in principle? (2) Why have developments in (East) Germany taken such a different course from those in any of the other states concerned?

 

1. Introduction
In 1989/90 the Communist Bloc broke apart. Within a dramatically changed ideological, political, economic, social, cultural and not least legal environment individual member states regained their autonomy and were set free to decide on their own futures. The German Democratic Republic (GDR) represented a special case in that, on the contrary, it lost its status as a separate state (however dependent on the Soviet Union) and acceeded to the Federal Republic of Germany (FRG). For better or for worse, this meant that the citizens of the former GDR had no autonomy in deciding on the reshaping of their society and its institutions, but had become (the smaller) section of the population of an enlarged Federal Republic of Germany.
    All former Eastern Bloc countries have had to face the issue of how to handle political crime committed under the previous Communist regimes. For a number of reasons, this task has been given greater prominence and has caused more headache in Germany than in any of the other states concerned. Why should that be so? In what follows I shall spell out the key options that, in theory, are open to a country needing to settle accounts with its recent history. After placing each option into a historical context I shall then assess the particular difficulties encountered by Germany.

 

1 This paper is a revised and updated version of a paper written in German and published in German Life and Letters 1/50; copyright: Blackwell Publishers Ltd, Oxford, UK. — All English translations of German quotations are the author’s.

2. The German Democratic Republic as a special case amongst former Communist Bloc countries
If there is one controversial issue in German post-unification history that has consistently preoccupied the German people and has aroused long-drawn out, heated and often painful debates in the media, it is the issue of how best to deal with political crime committed by and on behalf of the Communist regime in the now defunct German Democratic Republic. These debates have involved the whole of German society (East and West): the general public, politicians from the various political parties, sociologists, political scientists, theologians and, not least, lawyers. Why, outsiders may be tempted to ask, should it be taking the Germans so long to put behind them the past and focus instead on tasks ahead when the issue as such is by no means unique to them? After all, other successor states to the former Eastern Bloc have had to cope with it in one way or another and have, in fact, done so fairly rapidly immediately following the political upheavals in 1989/1990. Hungary, Poland, Czechoslovakia (the Czech Republic and Slovakia), Romania, Bulgaria, Yugoslavia, Albania and Russia all passed some form of amnesty and rehabilitation legislation at a very early stage as well as considering steps towards criminal prosecution or, at least, lustration measures against supporters of the previous regime. By and large, consensus on amnesties and rehabilitation laws proved more readily available than agreement on whether and in what form civil and/or criminal sanctions were to be applied. This was especially true for countries such as Russia, Albania and Yugoslavia where the laying and consolidating of new political foundations has turned out to be a very protracted and difficult process.2 In no other country that has emerged from the Socialist Bloc have criminal courts been allocated a major role in coping with the criminal legacy of the previous regime. And in none of these countries have debates about the rights and wrongs of dealing with the Communist past by criminal proceedings on the one hand and amnesties on the other been conducted on the scale and with the emotional intensity and zeal to be seen in Germany.
    Three key factors help to explain the difficulties specific to Germany in dealing with this legacy of Communism following the end of the Cold War. Firstly, while other former Eastern Bloc countries had to handle the transition to democracy, a market economy and the rule of law on their own and and as best they could without help or interference from outside, the former GDR became, lite-

 

2 Bernhard Schlink, ”Rechtsstaat und revolutionäre Gerechtigkeit”, Neue Justiz 48/1994, pp. 433–437. Andrea Stauber, ”Die Gesetzgebung der ehemaligen Ostblockstaaten zur Bewältigung ihrer sozialistischen Vergangenheit”, Neue Justiz 49/1995, pp. 455–461.

rally overnight, part of a larger existing state and had no choice but to fit itself into the latter’s political, economic and legal systems. This also meant that there was no question of its having a free hand in deciding how best to settle with its own political past. The West German legal administrative framework, the bulk of West German laws and even large numbers of legal personnel were imported into the East to replace the previous system.3 This had two immediate and significant consequences: firstly, any independent initiative on the part of the former GDR was forestalled; secondly, any decisions regarding the fate of perpetrators and victims had to be taken outside a revolutionary or semi-revolutionary context, as the rule of law took over from 3 October 1990 and any quick and simple solutions (possibly at the expense of legality) were ruled out from then on.
    A second factor that set aside the German response to the collapse of the Socialist Bloc from that of all other Warsaw Pact countries was that a restoration of the previous regime was not an option in the new federal states of Germany, while it could by no means be excluded anywhere else. In Eastern Germany, the sociopolitical and legal system of the pre-1990 Federal Republic of Germany had come to stay and a reversal to the old order was out of the question. There was therefore no immediate political pressure to respect the sensitivities of any previous rulers who might conceivably return to power. Nor was a speedy amnesty a particularly attractive proposition.
    Thirdly, and perhaps most importantly, Germany has in our century already had to engage in protracted (and many would say, failed) attempts to deal — politically, socially, morally and legally — with the criminal legacy of a dictatorship. The term Vergangenheitsbewältigung was coined for the purpose, a phrase for which, so it seems, no adequate equivalent exists in any other language.4 The spectre of what many in East and West Germany regard as an unjustifyably cavalier treatment of Nazi crime in post-war (West) Germany has overshadowed efforts to deal with Communist perpetrators from the very start. Although no one would dispute that the political crime committed in the GDR can in no way be compared, quantitatively or qualitatively, with that committed under Hitler, there is nevertheless a sufficiently robust structural common denominator to make comparisons almost inevitable. In both cases, an ideology-driven dictatorship swept aside any genuine democratic structures, set up a vast network of collaborators and developed a range of mechanisms to suppress opposition. Parallels could also be drawn between East Germany in 1990 and West Germany in

 

3 Gisela Shaw, ”Courts and Judges in the New Federal States in United Germany: Has Legal Unification Worked?”, Svensk Juristtidning 1995 pp. 32–44. 4 Timothy Garton Ash, ”Vier Wege zur Wahrheit”, Die Zeit, 3.10.1997.

1945, and any assessment of political crime committed by the Communist regime of the GDR was invariably coloured by such echoes from history. In addition, matters were seriously complicated by the total lack of consensus amongst (West) Germans regarding the record of the Federal Republic in handling Nazi crime. The spectrum of views ranges from profound contempt of what is seen as the FRG’s refusal to face Nazi crime5 to unambiguous praise for the FRG’s systematic efforts to do justice to a complex situation.6 This lack of consensus on past performance has from the very start been projected on to the debate about the current need to deal with the criminal legacy of Communism in the GDR and practically a priori removed any hope of agreement across the population of united Germany.
    Taken together, these three factors have represented a powerful obstacle to a speedy and broadly satisfactory solution.

 

3. Four possible ways of dealing with a previous regime’s political crime
In principle, four (by no means mutually exclusive) strategies are available to post-revolutionary regimes in their attempts to settle with a previous government’s crime.7 These are tribunals, lustrations, judicial proceedings and amnesty legislation. In practice, history does seem to confirm the view recently voiced by the British historian Timothy Garton Ash:8

 

There is probably no really good way of coming to terms with such historical events but merely poor and less poor ones. The question that always needs to be asked is: does this way of bringing to light and coping with history endanger social harmony or the setting up of a new democracy?

 

3.1 Tribunals
To begin with tribunals. Tribunals presuppose the availability of victorious powers able to conduct them. They take place during or in the immediate wake of abrupt regime changes and therefore operate outside any normal legal framework. Nor are they inhibited by suspicion that they might be applying retrospective justice, that is, that they might be punishing the accused for what, at the

 

5 Bruno Giordano, Die zweite Schuld oder Von der Last Deutscher zu sein, Hamburg 1987. 6 Manfred Kittel, Die Legende von der ‘Zweiten Schuld’. Vergangenheitbewältigung in der Ära Adenauer, Berlin/Frankfurt 1993. 7 Claus Offe,”Bestrafung, Disqualifizierung, Entschädigung? Strategien rechtlicher ‘Vergangenheitsbewältigung’ in nachkommunistischen Gesellschaften”, Berliner Journal für Soziologie, 1992, pp. 145–151. Luc Huyse, ”Justice after Transition: on the Choices Successor Elites Make in Dealing with the Past”, Law and Social Inquiry 20/1995, pp. 51–78. 8 Loc. cit.

time of the crime, was not considered to be against the law. Tribunals thus offer a degree of ad hoc justice not available to or acceptable within societies governed by the rule of law.
    In France extensive use of tribunals was made to settle scores after 1789; and after the Franco-Prussian war of 1870/71 the Thiers government executed some 20,000 collaborators without further ado.9 Again, France, Holland and Belgium used tribunals to punish former Nazi collaborators after World War II. Even today debates about the rights and wrongs of this way of proceeding keep flaring up in the three countries, thus demonstrating the problematic nature of such violent and drastic measures. In Germany, the Allies after World Wars I and II decided in favour of tribunals to deal with the worst of German war crime. The tribunal stipulated by the Treaty of Versailles of 1919 took place in Leipzig in 1921. It soon deteriorated into a farce: not only did the Dutch refuse to extradite the German Emperor (who had abdicated in November 1918 and taken refuge in Holland), but of a total of 901 trials a mere thirteen led to convictions. At the end of the Second World War the Allies were in a much more promising position and fully in control. In August 1945 they agreed on setting up an international military tribunal to prosecute and punish the main perpetrators of war crime in preference to Stalin’s earlier suggestion to execute 50,000 German officers without any form of trial.10 As the Berlin law professor Uwe Wesel rightly reminded his readers in 1995,11 the American Chief Prosecutor Robert Jackson was fully aware that this strategy was anything but perfect. Placing the Nuremberg trials outside the context of the German legal framework meant a violation of the fundamental principle of nullum crimen sine lege (no punishment without a law) and thus represented victor’s justice. Yet he felt sure that some signal needed to be given to future generations that at least serious efforts had been made to restore the public’s faith in justice. In the event, twelve of twenty-two accused were condemned to death in 1946; another five hundred were executed in subsequent trials.12 Historians generally seem to agree at least in broad terms that the Allies’ attempt to cope with their impossible task probably represented the best possible answer to an intractable problem.
    Interestingly, the idea that a tribunal might offer a way out did feature in public debates in Germany after the demise of the Communist regime in the GDR. But it appeared rather late, that is in 1991, when unification had occurred and the new political, economic and legal systems had already been installed. The actual re-

9 Otto Kirchheimer, Political Justice. The Use of Legal Procedure for Political Ends, Princeton 1961, p. 407. 10 Manfred Kittel, ibid., p. 29. 11 Uwe Wesel, ”Den Mächtigen den Krieg vergällen”, Die Zeit, 7.4.1995. 12 Manfred Kittel, ibid., p. 29.

volutionary events themselves had been too diffuse, conciliatory and ultimately driven by external factors well beyond the control of the ‘revolutionaries’ themselves for the question of possible instant punishment of political perpetrators to gather sufficient force. Nor did these discussions about the possibility of tribunals instigated by a former East German dissident come SPD politician, Wolfgang Thierse, envisage any punishment of offenders. Thierse rather saw them as a belated opportunity for ”concentrated public discourse”, ”a joint effort to think through and accept our past”, a form of ”political and moral self-education and self-renewal”:13

 

The inconsistencies of the 1989 autumn revolution cannot be ironed out by criminal proceedings. We need to draw our own conclusions: once again the forces of the autumn of 1989, civil rights campaigners and Social Democrats, ought to demonstrate that they share a common goal.

 

Those participating in the debates soon agreed that the cons of a tribunal of any kind far outweighed the pros, in that it would have raised more problems than it would ever have been able to solve. A tribunal, however seductive as a notion, would have brought its own dangers, as it would have meant the replacing of one form of biassed ‘justice’ by another. A tribunal unsupported by procedural law would have been no better than lynch law, Robert Leicht, editor of Die Zeit, explained,14 and an attempt to provide a retrospective compensation for the peaceful nature of the revolution would have been doomed to failure. He saw more milage in compiling expert witness reports on the SED regime to allow the building up of a comprehensive and objective picture of what actually happened. Numerous letters to the editor by writers, civil rights campaigners and theologians confirmed the general impression that a tribunal would not achieve what was desirable or needed. The (East German) lawyer and civil rights campaigner Rolf Henrich summed up his doubts as follows:15

 

We ought to have thrown Honni [Erich Honecker] and his chums out of the window. But then the revolution wouldn’t have been a ‘peaceful’ one. As we didn’t dare, we now have to carry on struggling with the consequences willy-nilly.

 

Expressions of regret at not having gone for a more forceful and bloody revolutionary style remained mostly muted. Expressing it directly and unashamedly was left to the enfant terrible of the East German dissident scene, the notorious (Communist) composer

13 Wolfgang Thierse, Die Zeit, 6.9.1991 14 Robert Leicht, ”Am Pranger der Gerechten”, Die Zeit, 11.10.1991. 15 Rolf Henrich, ”Aufklären oder verurteilen?”, Die Zeit, 8.11.1991.

and singer Wolf Biermann expatriated from the GDR in 1976 who had never been slow in speaking his political mind:16

 

The revolution in the GDR probably wasn’t a revolution after all but rather more something of a cheap closing-down sale of the Russians, a waste product of perestroika of global proportions. Without Gorbachev some heroic GDR writers would still be busy kissing the boot that is kicking them. ... Little sign of any originality. Even the now famous linguistic creation of the year 1989 ‘We are the people!' is a plagiarism, poorly copied from Georg Büchner’s drama [Danton’s Death]. ... The original author makes a lynchhappy citizen in the street shout at Robespierre, We are the people, and we want that there be no law; ergo this is the will of the law, ergo in the name of the law there is no more law, ergo killed!

 

3.2 Lustrations
With tribunals having proved unworkable, lustrations, that is the large-scale cleansing of society from all those who are seen as the main perpetrators, would, in theory, have been a second possible option. Germans in both East and West had quite some experience in this field, as large-scale denazification efforts after World War II had been made on both sides of the Iron Curtain, albeit in very different styles and with very different outcomes. In the East they had led to a depletion of many spheres of life of highly qualified personnel, with experts and professionals being replaced by loyal Party members, with the result that the former headed to the Western part of the country where ambitious lustration/re-education plans on the part of, in particular, the Americans had soon turned into a nightmare. While the Nuremberg tribunals had been seen by the population at large as a just punishment of the wicked few, denazification was aimed at some six million Germans and thus represented a genuine threat to average citizens. Although c. 1.2 million were exonerated and one million classified as fellow travellers, this still left some 3.8 million people who had to fear internment and a ban on practising their profession.17 The reasons for the failure of this mass operation in West Germany were neatly summed up by Otto Kirchheimer:18

 

This attempt to institute bona fide court proceedings on a conveyor belt system ... was from the outset destined to bog down under its own weight and become a meaningless paper shuffling. Far from isolating major National Socialist figures, it created a firm bond among the disparate crowds of potential victims of denazification, from the master brains to the last village teacher and postal clerk.

 

16 Wolf Biermann, ”Der Lichtblick im gräßlichen Fatalismus der Geschichte”, Die Zeit, 25.10.1991. 17 Manfred Kittel, ibid., p. 37. 18 Otto Kirchheimer, ibid., p. 8.

Besides, the growing intensity of the Cold War ensured that the fight against communism moved to the top of the Western Allies’ political agenda while the desire to quash fascism rapidly faded into the background.
    German unification did bring about some small-scale forms of lustration in the former GDR. In October 1990 Communist leaders, especially secret service agents and collaborators, were removed or barred from office in public service (civil service, teaching, judiciary etc.). However, this attempt to marginalise key culprits at least in the public sphere alienated large sections of the social elite while also failing to satisfy fully those who were looking for justice. After all, with the growth of the private sector of the economy in the new federal states of Germany, there seemed to be plenty of opportunity for such highly skilled people to find some alternative lucrative activity. A prime example were those with legal training for whom the abolition of barriers to access to private legal practise was a blessing brought about by the GDR government as early as January 1990. This allowed any trained lawyer fearing for his job in the public service to set up private practice. Amongst the first to take advantage of this opportunity to move sideways into the advocacy was the then (last) GDR Minister of Justice, Kurt Wünsche, who by the summer of 1990 had left his post in the Ministry (soon to be closed down) and turned Rechtsanwalt instead.

 

3.3 Criminal proceedings
A third strategy allowing a nation systematically to settle with perpetrators who acted in the name of a previous political regime is to refer such crime to the courts. The serious difficulties this can cause are best illustrated by reference to the way West German courts dealt with Nazi crime. Given that the judges, too, had, by and large, been followers of the National Socialist Party, the courts found themselves almost incapable of tackling the issue with any seriousness. Worse still, former Nazi judges and public prosecutors would have had to be punished by their own colleagues in the judiciary. The end-result was that no West German Nazi lawyer was ever conclusively sentenced for a crime committed in the service of Hitler. Instead, reasons were found for exonerating the accused, mainly on the basis that there was no proof of any subjective criminal intention but merely of pressure to follow the official ideological agenda of the day. Even in 1956, the highest German criminal court ruled that two judges who had participated in the court-martialling of the theologian Dietrich Boenhoeffer were innocent as they acted in good faith at the time.19 Nor did the convention of German state ministers of justice wish to avail

19 Christoph U. Schminck-Gustavus, Der‘Prozeß’ gegen Dietrich Bonhoeffer und die Freilassung der Mörder, Bonn 1995.

themselves of information offered by the German Democratic Republic about former Nazi jurists who had come back to high office in the Federal Republic, although the conclusiveness of most of the evidence was beyond reasonable doubt.20 It was only in the late fifties that West German criminal courts seriously tackled political crime committed on behalf of the National Socialist regime. This new initiative was sparked off by a number of developments. The two most important of these were on the one hand the publication in 1957 of Anne Frank’s diary written while in hiding in Amsterdam, and new insights emerging about the large-scale elimination of Jews and other social groups in Central and Eastern European death camps on the other. In 1958 the Central Office of Land Legal Administrations for the Solving of National Socialist Crime (Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen) in Ludwigsburg began its activities. And yet the West German population at large continued to see Nazi crime as the work of a few (who had long been punished) and gave little indication of being ready to allow the wealth of evidence to the contrary make any significant difference to their firmly held conviction. The effect of these developments on the next phase of Vergangenheitsbewältigung in German history can hardly be overestimated.
    Thus it was in the judicial field that the Nazi ghost in the cupboard turned out to be the greatest handicap to Germany’s efforts to cope fairly and speedily with the criminal legacy of the East German Communist regime. After all, those sitting in judgment over offenders in German courts in the early nineties were either West Germans or at least perceived as acting on behalf of the West German judiciary. And, inevitably, many Germans both east and west of the former Iron Curtain asked the question: given that the West Germans had proved unable to put their own house in order after 1945 — what justification was there for them to assume the right to sit in judgment over their fellow Germans in the eastern part of united Germany? And if they did, was there not perhaps an element of overcompensation, of trying to cover up mistakes made forty years earlier and resulting in saving many a Nazi collaborator’s skin? There was another serious issue which hampered the progress of the work of criminal courts in Germany rather more than in other Central and Eastern European country. This was the question of retrospective justice which was of much greater weight in the new federal German states than in other territories previously under Communist rule. Thus § 103, Sect. 2 of the Basic Law of the Federal Republic states unambiguously, ”A deed can only be punished

 

20 Jörg Friedrich, Die kalte Amenestie. NS-Täter in der Bundesrepublik, Frankfurt/M, 1984, p. 358.

if its criminal character was defined by law prior to its being carried out.” As the introduction of the rule of law was the overarching justification for German unification, judicial steps against activities violating West German but not East German law were automatically excluded. This applied, for instance, to the bugging of telephones or the opening of private mail. It also applied to sentences for attempting to leave the country without permission. A judge who had engaged in such sentencing had acted perfectly within GDR law so long as the length of the sentence did not significantly exceed that stipulated in the notorious § 213 of the German Democratic Republic’s Criminal Code:

 

Illegal border crossing (1) A person illegally crossing the state border of the German Democratic Republic ... will be sentenced to up to two years imprisonment or will receive a suspended sentence with probation or a fine. ... (3) In serious cases the perpetrator will be sentenced to imprisonment of one to eight years.

 

Given that ”serious cases” were defined by evidence of, for instance, falsification of a document, the misuse of documents, the use of a hide-out or collusion with others, there was ample legal scope for passing heavy sentences without exceeding permissable levels. Nor was the situation made easier by the stipulation laid down in the Unification Treaty of September 199021 that perpetrators of crimes committed in the German Democratic Republic but not yet punished had to be prosecuted under the law of the German Democratic Republic and not that of the Federal Republic.22 The inevitable frustration on the part of those fighting for what they saw as justice for victims of the former Communist regime found expression in a debate on the question whether it was at all reasonable to treat GDR law as law that had to be respected. Was not this kind of law unjust law and therefore of no relevance in the context of the prohibition to apply retrospective justice? Once again, it was impossible not to refer back to the thinking that had informed debates about Nazi crime, in particular the contribution made by Gustav Radbruch, one of the great legal philosophers of the century. Radbruch had specifically discussed the issue in an essay entitled ”Gesetzliches Unrecht und übergesetzliches Recht”23 in which he had debated the question whether National Socialist

 

21 Bundesrepublik Deutschland, Einigungsvertrag. Sonderdruck aus der Sammlung ‘Das Deutsche Bundesrecht’, 3rd rev. ed., Baden-Baden 1990. 22 Uwe Wesel, Der Honecker-Prozeß. Ein Staat vor Gericht, Frankfurt, 1994 p. 145. 23 Gustav Radbruch, ”Gesetzliches Unrecht und übergesetzliches Recht”, in Gustav Radbruch, Rechtsphilosophie, 8th ed., Stuttgart 1973 (written in 1946).

law had to be respected as such. Was it right for a court in a state governed by the rule of law to punish someone for having considered Nazi law to be legally binding? Radbruch decided that a distinction needed to be drawn between just and unjust (positive) law (Recht) and that the latter had to be denied the dignity attached to the law of the land. This led him to distinguish further between ‘legal’ and ‘supralegal’ law (gesetzliches und übergesetzliches Recht), the latter being a kind of inviolable natural law defining universal human rights. In Radbruch’s much quoted words:24

 

The conflict between justice (Gerechtigkeit) and the rule of law (Rechtssicherheit) may best be resolved by granting superior status to positive law (Recht) established by statute and authority, even if in content it were unjust and inefficient, unless the contradiction between positive law (Gesetz) and justice reaches such intolerable proportions that the law (Recht) has to give way to justice because it is unlawful (unrichtig).

 

Radbruch was more than aware of the problems that might arise in individual contexts. But he was in no doubt that there might be occasions (for instance under National Socialism) where an item of legislation was simply unlawful:25

 

Wherever justice is not even intended, wherever equality (which represents the core of justice) has been denied, a statute is not only merely ‘unlawful’ law (‘unrichtiges’ Recht) but lacks any legal character (Rechtsnatur) whatsoever.

 

Conflicting views as to whether GDR law could really be characterised as law and whether the GDR was really a state governed by the rule of law have further complicated the debate about how best to handle GDR political crime.
    As if such legal hurdles had not been sufficient to grate on the sensitivities of victims and civil rights campaigners longing to see justice done, it soon became obvious that differences of interpretation regarding the very meaning of ‘justice’ became a source of tension and moral outrage. East German civil rights campaigners, such as Bärbel Boley, defined justice as moral justice to satisfy the individual victim, and refused to accept that the implementation of such justice would only have been feasible in a revolutionary context outside the confines of formal legality. They railed at the apparent injustice inflicted on individuals by the (objective) rule of law and their anger overshadowed the already difficult process of creating a unified Germany.

 

24 Ibid, p. 345. 25 Ibid, p. 346.

All these tensions, doubts, frustrations and diverging views were accompanying the work of the judicial machinery from the very start in October 1990. But the first, high-profile trials left all sides dissatisfied, as they demonstrated the extreme difficulties encountered in inflicting legal punishment on even those who, to the general public, appeared to be most obviously in line for it. There was also growing suspicion that small fish were caught while big fish escaped unharmed. However, even the small fish, such as the frontier guards tried from September 1991 for shooting at refugees, were difficult to catch. After all, they had a powerful alibi in the form of GDR frontier legislation that had provided for the lawful use of firearms to prevent GDR citizens from leaving their country:26

 

Making use of firearms is justified if carried out to prevent the immediately pending execution or the continuation of an offence which surrounding circumstances make appear to be a crime.

 

In order to achieve any convictions at all, supranational law had to be invoked. In an appeal case the German supreme court (Bundesgerichtshof, BGH) ruled in 1993 and 1994 that even border guards ought to have been aware that shooting at refugees constituted a violation of human rights as enshrined in international rather than in national GDR law. Not surprisingly, the court’s ruling failed to meet with general approval either from lawyers or from the lay population in East or West Germany.27 Convicting those who were ultimately responsible for the shoot-to-kill policy at the East German frontier to the West took a good deal longer. It was in August 1997 that three members of the GDR Politburo were sentenced to between three and six and a half years in prison, thus providing some reassurance that the courts were doing their best to punish not merely the puppets but also the string-pullers. After the borderguards’ cases national and international spot lights focused on the trial against Erich Honecker, head of the Socialist Unity Party and of the GDR government from 1971 to 1989. This trial lasted from November 1992 to September 1993 and ultimately resulted in Honecker’s release on grounds of ill health. He was allowed to take a plane from Berlin to Chile where, eventually, he died. Expert and popular responses to the trials ranged from hilarity, via expressions of profound frustration, to applause for a wise judgment or even resignation in the face of an insoluble di-

 

26 DDR-Grenzgesetz § 27 II 1; quoted in Arthur Kaufmann, ”Die Radbruchsche Formel vom gesetzlichen Unrecht und vom übergesetzlichen Recht in der Diskussion um das im Namen der DDR begangene Unrecht”, Neue Juristische Wochenschrift 48/1995, p. 82. 27 Cf. for instance Walter Gropp, ”Naturrecht und Rückwirkungsverbot? Zur Strafbarkeit der Berliner ’Mauerschützen’”, Neue Justiz 50/1996, pp. 393–398.

lemma. One cannot but feel respect for words such as those of Jens Reich, East German scientist and former civil rights campaigner:28

 

What of it? No tribunal and no Gauck authority and no commission of enquiry will ever be able to explain our past to us — we ourselves will have to think everything over very calmly; little can be gained from quick submissions and judgments. Dragging Honi [Erich Honecker] four times around the Berlin Wall as once upon a time Achilles dragged Hector around Troy would not have brought us peace of mind. So let’s let him go then.

 

Another high-profile case took a lot longer to resolve. The head of the GDR espionage service, Markus Wolf, was initially convicted in December 1993; his final conviction took until 1997. But given that Wolf’s job had presumably not been very dissimilar to that of his one time West German counterpart, later West German Minister of Justice and Foreign Secretary, Klaus Kinkel (who in his earlier years had headed the West German espionage system), West and East German critics became increasingly vociferous in their doubts about the appropriateness of criminal justice tools for a case of this kind. Uwe Wesel summed up the dilemma as follows:29

 

The Unification Treaty has handed over to the legal system a task for which it is basically not cut out. The judiciary has had to act whether it wanted to or not. ... The rule of law is a meaningful tool for solving conflicts within its own spatial and temporal spheres ... But its competence is exceeded if it is to sit in judgment over mistakes made in other macrosystems outside its own sphere.

 

Nor did East Germans feel that the trial had done anything to restore their confidence in the Federal German justice system:30

 

It was not our trial. It has contributed nothing to our coming to terms with life in the GDR. ... There was no truth that this court could have found, there was only evidence of its traces. The charge did not go far enough. The offence was called ‘GDR’.

 

The general impression of muddle and uncertainty is enhanced by the fact that strategies have varied in the five East German states and in Berlin. For instance, while Brandenburg, from the very start, decided to restrict prosecution of Communist judges and public prosecutors to extreme cases, the same was not true of the other four states, in particular Saxony, and most certainly not

 

28 Jens Reich, ”Fahre dahin, Honi!”, Die Zeit, 22.01.1993. 29 Uwe Wesel, Der Honecker-Prozeß. Ein Staat vor Gericht, Frankfurt 1994, p. 159. 30 Christoph Dieckmann, ”Am Ende einer Posse”, Die Zeit, 22.01.1993.

Berlin. The only source of gradual streamlining over the years have been decisions of appeal courts at federal level.

 

3.4 Amnesties
For good or ill, the Germans have had to go through these tortuous procedures almost irrespective of their outcomes. Not having done so would have seemed like a betrayal of the rule of law, the principle upon which the Federal Republic was founded. From the outside, this may on occasion have had a touch of the ridiculous. And yet, comments such as that made by a French journalist — ”Faith in a kind of historical redemption through law is a German phenomenon”31 — also carry a ring of respect given the highly selective and somewhat arbitrary handling of such matters in France.
    Nevertheless, in the face of growing dissatisfaction on all sides about the slow, cumbersome and ultimately ineffective workings of the judiciary in settling the score with the East German regime, calls for an amnesty were becoming more and more audible.
    The word ‘amnesty’ is derived from the Greek amnestia and is semantically related to Latin oblivio. In law, an amnesty is defined as follows:32

 

An amnesty is a general act of mercy on the part of the state for an indefinite number of final but not yet or not yet fully executed sentences, through which the legal consequences of the offence are removed for the respective group of offenders. An amnesty requires formal legislation. It encompasses offences committed prior to a certain qualifying date and normally not exceeding a certain level of punishment.

 

An amnesty law does not imply that the state ceases to condemn certain offences and for this reason waives the need for punishment. It merely states that certain offences committed within a clearly defined period of time are not to be prosecuted.33 Irrespective of whether amnesty laws, as is common in democracies, are the work of a national parliament or whether they have been decreed by a dictator, they always represent an exceptional interference with the normal legal administration and easily arouse social dissent, because those who come under the amnesty get away more lightly than those who remain subject to normal criminal law. On the other hand, amnesty measures can, in a favourable social climate, restore social harmony unavailable by any other means. The potential usefulness of amnesty laws is easily demonstrated by examples from history. The first recorded amnesty was passed

31 Jacqueline Henard, ”Der letzte Prozeß in Sachen Vichy”, Die Zeit, 3.10.1997. 32 Hermann Avenarius, Kleines Rechtswörterbuch, Freiburg 1988. 33 Axel Spies, Amnestiemaßnahmen und deren Verfassungsmäßigkeit in Frankreich und Deutschland, Frankfurt/M 1991, p. 7.

by an Athenean general in 404 B. C. and secured nearly one century of peace for the people of Athens. In the nineteenth century, the American presidents Lincoln (December 1863) and Johnson (May 1865 and September 1867) decided in favour of amnesty legislation in order to ensure social harmony after the American Wars of Secession. The Spanish chose a similar path after the death of General Franco.34 In England and France very different traditions have evolved. While England has managed almost entirely without any amnesties for around three centuries — the most recent ones having been passed here in 1715 and 1745 respectively35 —, France has frequently resorted to such measures, especially when, after a change of regime, bloody tribunals needed some rounding off. The French Revolution of 1789 was followed by an amnesty in September 1791;36 it took a decade before a general amnesty was passed after the Franco-Prussian War of 1870/71; and amnesty laws covering French collaborators and fascists during World War II took until 1947, 1951, 1953 and 1959 to pass.37 Since then, the French parliament has regularly (on average every two years) debated items of amnesty legislation aimed to raise the image of an incoming government and/or to alleviate pressures on their prison system.38 In Germany, amnesty laws had, until 1918, largely been a matter for individual states and were resorted to relatively rarely. However, during the Weimar Republic this changed drastically. After a big amnesty in 1918, a whole flood of so-called ‘imperial amnesties’ (Reichsamnestien) followed in the twenties and early thirties. These were not so much intended to restore social harmony but rather to relieve pressures on the prison system and to protect party faithfuls both from the political Left and from the political Right from undesirable consequences of their actions, resulting in a kind of horse-trading.39 Nor did Hitler’s seizure of power interrupt the hectic amnesty activities. While horse-trading came to an end for obvious reasons, Hitler’s supporters still needed protecting from the legal consequences of offences committed on behalf of the Führer. Items of amnesty legislation took the following form:40 Offences committed in the struggle for the German people’s national uprising, in preparation for it or in the fight for the German soil, will be immune from criminal prosecution according to the following regulations...

34 Otto Kirchheimer, ibid., p. 405. 35 Hans-Jörg Albrecht, ”Braucht die Politik die Amnestie? Anmerkungen zum Problem der Amnestie aus der Perspektive der Rechtsentwicklung im Ausland”, in: Wolfgang Greive (ed), Amnestie, Gnade, Politik, Loccum 1990, pp. 67–95. 36 Axel Spies, ibid., p. 13. 37 Otto Kirchheimer, ibid., p. 416. 38 Axel Spies, ibid., pp. 2–3, 16. 39 Monika Frommel, ”Amnestie als rechtshistorisches Problem”, in Wolfgang Greive (ed), Amnestie, Gnade, Politik, Loccum 1990, pp. 53–65. 40 Reichsgesetzblatt, 3 July 1934, p. 134.

By using amnesties as a legal instrument to manage his ‘national revolution’, Hitler thus institutionalised the principle of inequality before the law.
    After World War II the Allies and later the Federal German government used amnesty measures only sparingly, and individual states were returned their general pardoning powers. Amnesties were seen to be needed in order to assist the reconstruction of public administrations and of the West German economy, often at the expense of political justice. The most hotly disputed of these measures were the notorious ‘31 laws’ of May 1951, so called because they were the Federal parliament’s response to article 131 of the Basic Law and intended to restore the legal rights of public servants, including members of the judiciary, who had lost their civil entitlements on account of their political activities under Hitler. Only former members of the Gestapo were excluded. As a result, the majority of Nazi judges and public prosecutors returned to the West German judiciary, including those who had actively participated in the brutal sentencing of dissidents in special tribunals.41 The only concession to the sensitivities of the German population and the Federal Republic’s image abroad was contained in a resolution of the Federal parliament of 14 June 1961, inviting all judges and public prosecutors to retire early (on full pensions) if they expected to be the target of well-founded criticisms ”due to having contributed to the passing of death sentences”. Gradually and one by one they disappeared from office.42 In the German Democratic Republic developments after 1949 had been very different. Drastic cleansing of fascist elements having taken place after 1945, amnesties remained extremely rare until 1989/90 when suddenly they became instruments for crisis management. With the flood of refugees to the West proving unstoppable and the population at large becoming more and more obstreperous, Honecker’s successor in office Krenz, as well as Krenz’ successor Gerlach resorted to amnesty legislation in their last attempts to retain a semblance of public control.43 Amnesties, history demonstrates, only achieve their goal if they manage to draw a line under revolutionary events and restore social harmony. Their success depends on whether there is a sufficiently strong basis of moral and political consensus. In united Germany, so it seems, no such consensus exists (as yet?). And how could it? After forty years of systematic effort on both sides of the Iron Curtain to develop and consolidate differences between the

 

41 Rudolf Wassermann, Auch die Justiz kann aus der Geschichte nicht aussteigen, Baden-Baden 1990, p. 201. 42 Rudolf Wassermann, ibid., p. 202; also Jörg Friedrich, ibid., p. 365. 43 Frank A. Hammel, Innerstaatliche Amnestien. Grundlagen und Grenzen aufgrund des internationalen Rechts, Frankfurt 1993, pp. 17–18.

two societies, it would be unrealistic to expect these differences to disappear overnight. Interestingly, as early as the spring of 1990, there had been suggestions in both German parliaments to consider cutting the Gordion knot by drawing a line under all, or at least most, political crime committed in the GDR. In April 1990, the pastor, dissident and then cabinet minister in the newly formed (first and last) democratic government in East Berlin, Rainer Eppelmann, supported the notion of a general amnesty, from which only murder, manslaughter and unlawful detention were to be excluded.44 As a politician, he saw the practical advantages of an amnesty:

 

If we do not draw a line now, I can see myself having to investigate against the head of government in ten years time. This may well mean that in the future Republic of Germany no GDR citizen will be able to take on political and social responsibility in any area. After all, more than a third of the population collaborated more or less closely with the Secret Police.

 

Eppelmann also argued on grounds of morality:

 

We must now draw a line and say, Let’s look to the future in the knowledge that there is a great deal of wrong-doing behind us. Who amongst us can say that he is wholly without blame?

 

However, neither the East Berlin nor the Bonn parliament finally opted in favour of amnesty legislation. In Bonn a bill proposing amnesty legislation failed to pass the Second Chamber (Bundesrat) in 1990 where the view prevailed that it would be unwise to interfere at this stage with the workings of the legal administration, although a report back to the Lower House (Bundestag) suggested that there was an expectation that East-West tensions could best be overcome by some form of general pardon.45 Discussions went on in both German states until a few days before formal unification, but in the end neither parliament grasped the nettle. Nor did the Unification Treaty include any provision for an amnesty — a matter for regret in the eyes of those who today regard an amnesty as the only reasonable solution and quote a range of examples from history where amnesties helped to (re-)integrate territories previously under foreign rule.46 After almost three years of relative silence on the subject, debates were rekindled from the summer of 1993 by the approaching of

 

44 Rainer Eppelmann, ”Wir haben Lynch-Stimmung”, Der Spiegel 14/1990, pp. 20–23. 45 Johann-Georg Schätzler, ”Die versäumte Amnestie. Vorwärts gelebt, rückwärts nichts verstanden”, Neue Justiz 49/1995, p. 57. 46 Ibid., pp. 57–62.

the deadline by which the statutory period of limitation for less serious political crime was to end (3 October 1993). The Christian Democrats both West and East (with the exception of Brandenburg) argued for a postponement, and in a last-minute resolution in late September 1993 both Chambers voted in favour. This meant that less serious offences would only become statute-barred from 31 December 1995, while more serious ones would be open to prosecution until 31 December 1997.
    Supporters as well as opponents of an amnesty are to be found in all social and political camps as well as in both parts of united Germany. They are able to put forward a whole range of reasons in support of their case:

 

— practical: the judiciary is not coping — let’s give up the whole enterprise! — historical: the old FRG is simply trying to make up for its own deficiencies in settling with the Nazis; this should be stopped! — moral: anyone not in difficulty now has simply been lucky, especially citizens of the old FRG implicated in former GDR political crime; people in glass houses shouldn’t throw stones! — social: we cannot afford to alienate a society’s entire elite — economic: resources are needed for other more important matters — legal: we are getting dangerously close to resorting to retrospective justice; justice requires us to abandon all trials for political crime

 

Arguments against an amnesty law focus mainly on issues of morality and social psychology:

 

— East Germans have suffered and fought for a system able to restore justice and safeguarded by the rule of law and the separation of powers; their efforts would have been in vain if those who wronged them were to benefit from an amnesty — an amnesty would mean adding insult to injury for victims of the GDR regime — German society cannot face the future without having first faced its past; given their Nazi experience and its aftermath, Germans should now grasp the nettle rather than adding a second burden of guilt to their first — an amnesty would imply a serious danger of another social eruption along the lines of the student rebellion of the late sixties and early seventies

One of the most outspoken criticisms of any amnesty plans once again came from the singer Wolf Biermann who went on the attack in 1992:47

 

A sick pose is rampant amongst liberally minded people in the West. They say, ‘Terrible, all that; but I can’t honestly judge the situation because I don’t know how I would have reacted under such pressure.’ That sounds humane, modest and tolerant. In fact this reserve is cowardly, irresponsible and brutal. You don’t yourself have to have committed a murder to know what murder is.

 

A crucial phase in the debate was reached when, on 15 May 1995, the German Constitutional Court ruled that GDR spies who had worked from within the GDR could not be prosecuted. The reason given was simple enough: all countries have their spies. This ruling raised a storm of protest amongst opponents of an amnesty who called it ”an amnesty by the backdoor”. Of course, they may well be proved to have been right. De facto this ”backdoor” is beginning to open wider as time goes by. This for the following reasons: firstly, the next deadline for the limitation of the prosecution of even serious political crime (with the exception of murder) is fast approaching (end of 1997), and enthusiasm for extending it yet again is slight. Secondly, the Gauck Authority in East Berlin, which holds and manages the entire documentary evidence left by the GDR Secret Police (Stasi) and currently still employs 3,100 people, is to be gradually slimmed down from 1997, leaving no more than a Department of Education and Research with a staff of around 60 people.48 Thirdly, as media attention firmly focuses on Germany’s economic recession, politicians and the general public alike appear to lose interest in socio-moral issues. An eventual amnesty law, simply to confirm the realities already determined by this range of factors, does not seem an unrealistic expectation, although recent convictions of the three members of the Politburo responsible for the shoot-to-kill order at the frontier have once again provoked media responses arguing against any plan to allow such crime to be legally pardoned.

 

4. Conclusion
To conclude, in principle four instruments are available to a regime taking over after a revolutionary phase and wishing to settle with political crime committed by or on behalf of its predecessor. In 1989/90 most countries emerging from the former Communist Bloc opted for a speedily applied mix of all four, with amnesties

 

47 Wolf Biermann, ”à la lanterne!”, Der Spiegel 46/1992, p. 89. 48Wolfgang Runkel, ”Deutschstunde bei Gauck”, Die Zeit Magazin, 21.06.1996.

playing a considerable part in reaching pragmatic solutions, with all the imperfections such a solution entails. Given the peculiarities of the German situation compared with that of the other members of the former Eastern Bloc, the nature of the process itself as well its speed were determined by a complex set of factors which have so far prevented the passing of amnesty legislation while giving prominence to the work of criminal courts. Even eight years after the peaceful revolution in the German Democratic Republic united Germany is still agonising over the issue whether a belated amnesty should even be considered. In practice this may seem to be of ever-diminishing significance as the small number of major culprits have been sentenced and the large majority of less serious offenders are likely to escape any form of punishment by the courts anyway. However, even if this particular chapter in postunification history were to be closed formally in the foreseeable future, associated moral issues will retain their topicality for a long while to come and will continue to re-enforce social tensions within a society still riven by deep divisions. In the words of Otto Kirchheimer:49

 

Amnesties are acts of oblivion. But that is just the willing calling card by which they are introduced or smuggled in by anyone making a special plea for a particular group of potential beneficiaries. They are intended to efface the memory and possible consequences of past acts. The process of effacement becomes more effective if the situation to which the act is related has changed beyond recognition. Then and only then does amnesty conclude a chapter and ease a new beginning. To the extent that such a transformation has not taken place, political amnesty connotes neither oblivion nor effacement, but respite and armistice

49 Otto Kirchheimer, ibid., p. 416.