Revised version of a lecture delivered at the German Historical Institute, Washington, D.C., 2 October 1997. This article develops certain themes previously discussed by the author in The Imperfect Union: Constitutional Structures of German Unification (Princeton: Princeton University Press, 1997). For valuable comments on earlier drafts of this essay, the author is grateful to William Reynolds and Edward Wise.

1. 39 BGHSt [Decisions of the Federal Supreme Court in Criminal Matters] 1 (1992). All translations of German material in this essay are those of the author. For a detailed discussion of the facts of a Border Guards case, see Rosenberg, Tina, The Haunted Land: Facing Europe's Ghosts After Communism (New York: Vintage Books, 1996), pp. 261–89; 340–49Google Scholar.

2. 39 BGHSt at 2; see also 39 BGHSt 168, 170 (1993).

3. See 39 BGHSt at 30.

4. Frankfurter Allgemeine Zeitung (FAZ), 12 September 1997, p. 13.

5. See, e.g., Rosenberg, , Haunted Land, pp. 271–73Google Scholar.

6. See Verf. DDR (1974) art. 73; Wesel, Uwe, Ein Staat vor Gericht: Der Honecker-Prozeß (Frankfurt am Main: Eichborn, 1994), pp. 10–18 Google Scholar.

7. See 1 LVerfGE 56 (1993). For commentary see, e.g., McAdams, A. James, “The Honecker Trial: The East German Past and the German Future,” Review of Politics 58 (1996): 53 CrossRefGoogle Scholar.

8. The case against Willi Stoph, former head of the Council of Ministers, was also severed for health reasons.

9. See Keßler, Heinz, Zur Sache und zur Person: Erinnerungen, 2nd ed. (Berlin: edition ost, 1997)Google Scholar.

10. FAZ, 17 September 1996, p. 6; 40 BGHSt 218, 221 (1994).

11. 40 BGHSt at 230–40. For the opinion of the trial court in the National Defense Council case, see Neue Justiz 48 (1994): 210 Google Scholar. Keßler was sentenced to 7 1/2 years imprisonment; Streletz and Albrecht received lesser terms.

12. 95 BVerfGE [Decisions of the Federal Constitutional Court] 96 (1996).

13. Ambos, Kai, “Nuremberg revisited—Das Bundesverfassungsgericht, das Völkerstrafrecht und das Rückwirkungsverbot,” Der Strafverteidiger 17 (1997): 42 n. 47Google Scholar. See also Keßler, , Zur Sache, pp. 376–77Google Scholar.

14. FAZ, 31 May 1997, p. 1. Subsequently, three additional high–ranking military officers, and a civilian official of the SED Central Committee, were also convicted for their work on Annual Order 101. FAZ, 25 July 1998, p. 2.

15. FAZ, 11 September 1996, p. 1; FAZ, 22 May 1997, p. 5; see also Deutschland Archiv 29 (1996): 862 Google Scholar. General Baumgarten, who was also a deputy defense minister, received a prison term of 6 1/2 years for manslaughter and attempted manslaughter.

16. Deutsche Presse–Agentur, 26 March 1998.

17. FAZ, 10 November 1995, p. 4.

18. For Schabowski's account of these and other events of 1989–90, see Schabowski, Günter, Das Politbüro: Ende eines Mythos (Reinbek bei Hamburg: Rowohlt, 1990)Google Scholar.

19. See FAZ, 8 August 1997, p. 4. The original complaint also included defendants Horst Dohlus, Kurt Hager, Erich Mückenberger, and Harry Tisch. Tisch died in 1995, and the cases against the others were dismissed on grounds of ill health. Both Mückenberger and Hager died in 1998.

20. See generally Winters, Peter Jochen, “Das Urteil gegen Krenz und andere,” Deutschland Archiv 30 (1997): 693 Google Scholar; FAZ, 16 January 1996, p. 4.

21. See, e.g., FAZ, 10 November 1995, p. 4. Cf. In re Yamashita, 327 U.S. 1 (1946).

22. See Jochum, Dietmar, Der Politbüro–Prozeß (Kückenshagen: Scheunen–Verlag, 1996), pp. 203–12Google Scholar.

23. FAZ, 1 August 1997, p. 6 (quoting FAZ summary of the argument).

24. See, e.g., FAZ, 25 July 1997, p. 1; FAZ, 17 May 1997, p. 8 (Bahr testimony); FAZ, 16 May 1997, p. 4. See also FAZ, 6 June 1997, p. 5. For similar arguments in the National Defense Council case, see Wesel, , Ein Staat, pp. 126–28Google Scholar.

25. FAZ, 1 August 1997, p. 6; Winters, , “Das Urteil gegen Krenz,” p. 694 Google Scholar. Similarly, in the National Defense Council case, the trial court concluded that “the GDR was indeed not fully sovereign with respect to the border regime, but to a great extent it had a free hand in the concrete implementation” of the regime. Neue Justiz 48 (1994): 211 Google Scholar; see also 95 BVerfGE at 138.

26. See Dreier, Horst, “Gustav Radbruch und die Mauerschützen,” Juristen Zeitung 52 (1997): 432 Google Scholar.

27. For the offense of “illegal border crossing,” see §213 StGB–DDR. Even before the enactment of the Border Law, a legal basis for the border regime could have been premised on other GDR regulations. See 41 BGHSt 101,103–04 (1995).

28. See, e.g., Dreier, Ralf, Juristische Vergangenheitsbewältigung (Baden–Baden: Nomos, 1995), pp. 22, 25–26 Google Scholar; cf. 95 BVerfGE at 130.

29. Therefore at all levels—in the trial courts as well as the appellate courts—the prosecutors and the judiciary judging these eastern defendants came principally from the west. It should also be noted that, in the German system, all findings of fact—such as findings of innocence or guilt—are made by the judges (with the assistance of a small number of often subservient “lay jurors”) rather than by a jury in the Anglo–American sense. Some of the lay jurors, however, may have come from the east.

30. See, e.g., Pieroth, Bodo, “Der Rechtsstaat und die Aufarbeitung der vorrechtsstaatlichen Vergangenheit,” Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer (VVDStRL) 51 (1992): 102–04Google Scholar (arguing that a constitutional amendment would be necessary in order to permit prosecutions).

31. In the following discussion, I focus on the two principal arguments of the German courts. In a separate essay I seek to draw certain additional arguments from some of these cases as well as from earlier judicial decisions after the Nazi era. See Peter E. Quint, “The Border Guard Trials and the GDR Past—Seven Arguments.”

32. See, e.g., 39 BGHSt 1, 23–26; 39 BGHSt 168, 184–85.

33. 39 BGHSt at 23, 25, 29.

34. 39 BGHSt at 23–24. For this purpose the court invoked article 30 of the GDR Constitution, which guaranteed the “personality and freedom” of GDR citizens and declared that rights could be limited “only to the extent that this is permitted by law and is unavoidable.” Verf. DDR (1974) art. 30(1)–(2). Although the constitution did not, by its terms, grant a right to life, the court—apparently following GDR commentaries—found that such a right was implicit in the guarantee of “personality” in article 30(1). Because under article 30(2), personality (and, therefore, life) could be infringed only when “unavoidable,” the court inferred—with respect to the protection of life—a “principle of proportionality” analogous to that developed in the constitutional law of the Federal Republic.

35. 39 BGHSt at 24. In this connection, the court cited articles 49(1) and 48(2) of the GDR Constitution to show that the laws, which could only be enacted by the Volkskammer, were “binding.” The court also invoked articles 90(1) and 96(1) of the constitution, which held that the judiciary protects “the freedom, the peaceful existence, the rights and the dignity of persons,” and is “independent in its jurisprudence.”

36. The Border Law stated that the use of a weapon would be “the most extreme measure of the use of force against persons.” 39 BGHSt at 24–25.

37. Ibid. at 25. In another decision employing a similar interpretation, the court narrowed the defenses available to border guards in earlier cases that arose under the GDR Constitution of 1949, which remained in effect until 1968.41 BGHSt at 106.

38. Verf. DDR (1974) arts. 90, 97.

39. Laskowski, Silke, “Unrecht—Strafrecht—Gerechtigkeit: Die Probleme des Rechtsstaats mit dem DDR-Unrecht,” Juristische Arbeitsblätter 26 (1994): 161 Google Scholar. For additional criticism of this approach, see, e.g., Dreier, Horst, “Gustav Radbruch und die Mauerschützen,” pp. 426–27Google Scholar.

40. The arguments are set forth most fully in 39 BGHSt 1; see also, e.g., 41 BGHSt 101.

41. 95 BVerfGE at 128.

42. 92 BVerfGE 1, 11–13 (1995).

43. Radbruch, Gustav, “Gesetzliches Unrecht und übergesetzliches Recht,” Süddeutsche Juristen–Zeitung 1 (1946): 105 Google Scholar, reprinted in 3 Gustav Radbruch Gesamtausgabe, ed. Kaufmann, Arthur (Heidelberg: C.F. Müller, 1990), p. 83 Google Scholar.

44. Dreier, Horst, “Gustav Radbruch und die Mauerschützen,” pp. 422–23Google Scholar.

45. Radbruch, Gustav, Der innere Weg: Aufriß meines Lebens (Göttingen: Vandenhoeck & Ruprecht, 1961), pp. 98–100; 116–24Google Scholar.

46. For Radbruch's major prewar work, see Rechtsphilosophie (3d ed. 1932)Google Scholar, reprinted in 2 Gesamtausgabe, p. 206. For various possible meanings of the term “positivism,” see Hart, H. L. A., “Positivism and the Separation of Law and Morals,” Harvard Law Review 71 (1958): 601 n.25CrossRefGoogle Scholar.

47. Ibid., p. 616. On the other hand, some commentators argue that the seeds of Radbruch's later position were already present in his earlier work. For a recent discussion, see Paulson, Stanley L., “Radbruch on Unjust Laws: Competing Earlier and Later Views?” Oxford Journal of Legal Studies 15 (1995): 489 CrossRefGoogle Scholar. See also Kaufmann, Arthur, “Die Radbruchsche Formel vom gesetzlichen Unrecht und vom übergesetzlichen Recht in der Diskussion um das im Namen der DDR begangene Unrecht,” NJW 48 (1995), p. 82 Google Scholar: “Doubtless … there were changes of emphasis in his thought, but Radbruch was never a ‘classical’ positivist … and never a ‘classical’ natural lawyer.” Radbruch's view that positivism contributed to the acquiescence of the German judiciary under the Nazis has also been vigorously challenged. See, e.g., Ott, Walter and Buob, Franziska, “Did Legal Positivism Render German Jurists Defenseless during the Third Reich?” Social and Legal Studies 2 (1993): 91 CrossRefGoogle Scholar.

48. “The conflict between justice and legal security can be resolved by saying that the positive law … will have priority even when it is unjust or unsuitable [unzweckmäßig] unless the contradiction between the positive law and justice reaches such an unbearable degree that the statute—as ‘incorrect law’—must give way to justice.” 3 Gesamtausgabe, p. 89. A second, less discussed, portion of Radbruch's formulation denied the quality of law to statutes that—by rejecting basic concepts of equality—did not even seek to achieve justice. See Paulson, , “Radbruch on Unjust Laws,” p. 491 Google Scholar.

49. Although subject to some criticism, Radbruch's view was “greatly acclaimed in international discussions on legal philosophy, where it led to a rebirth of Natural Law during the 1950s and 1960s” ( Ott, and Buob, , “Legal Positivism,” p. 92 Google Scholar). In addition to its statement in the “Radbruch formula,” Radbruch discussed this theme in numerous other papers of the postwar period. See, e.g., “Fünf Minuten Rechtsphilosophie” (1945), reprinted in 3 Gesamtausgabe, pp. 78–79; “Erneuerung des Rechts” (1946), reprinted in 3 Gesamtausgabe, pp. 80–82; “Gerechtigkeit und Gnade” (1949), reprinted in 3 Gesamtausgabe, p. 259; Der innere Weg, pp. 152–54 (Afterword of Marie Baum); “Zur Diskussion über die Verbrechen gegen die Menschlichkeit,” Süddeutsche Juristen–Zeitung 2 (1947): 131 Google Scholar; “Vorwort zu: Staat und Moral zum Werden eines neuen Völkerrechts. Die drei Anklagereden von R. H. Jackson” (1946), reprinted in 3 Gesamtausgabe, pp. 94–95. For some examples of the extensive commentary on the Radbruch Formula, see, e.g., Bodenheimer, Edgar, “Significant Developments in German Legal Philosophy since 1945,” American Journal of Comparative Law 3 (1954): 379 CrossRefGoogle Scholar; Hart, , “Positivism and the Separation of Law and Morals,” pp. 615–21Google Scholar; Fuller, Lon L., “Positivism and Fidelity to Law—A Reply to Professor Hart,” Harvard Law Review 71 (1958): 648–61CrossRefGoogle Scholar; Luban, David, “A Report on the Legality of Evil: The Case of the Nazi Judges,” Brooklyn Law Review 61 (1995): 1139 Google Scholar.

50. 2 BGHSt 234 (1952); 3 BGHSt 357 (1952).

51. 3 BGHSt at 362; see also 2 BGHSt at 237. For commentary, see, e.g., Rommen, Heinrich, “Natural Law in Decisions of the Federal Supreme Court and of the Constitutional Courts in Germany,” Natural Law Forum 4 (1959): 1 Google Scholar.

52. 2 BGHSt 173 (1952).

53. Examples of the numerous offenses punished under Control Council Law No. 10 were atrocities by Nazi prison guards and denunciations to the Gestapo of persons who had criticized the regime. See, e.g., 1 Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen (OGHSt) 1 (1948); 1 OGHSt 6 (1948).

54. 3 BGHZ 94, 106–07 (1951).

55. 23 BVerfGE 98, 106 (1968).

56. Sprenger, Gerhard, “50 Jahre Radbruchsche Formel oder: Von der Sprachnot der Juristen,” Neue Justiz 51 (1997): 4 Google Scholar; Dietze, Gottfried, “Natural Law in the Modern European Constitutions,” Natural Law Forum 1 (1956): 77–78 Google Scholar.

57. Ibid. at 79–83.

58. Paulson, , “Radbruch on Unjust Laws,” p. 497 Google Scholar.

59. Dreier, Ralf, Juristische Vergangenheitsbewältigung, p. 33 Google Scholar.

60. “Fünf Minuten Rechtsphilosophie,” reprinted in 3 Gesamtausgabe, p. 79.

61. See 39 BGHSt at 16; 95 BVerfGE at 135. Indeed, these UN instruments themselves hold that the principle of nonretroactivity will not prevent prosecution of acts that are criminal under general principles of international law, even if these violations are not criminal under domestic law. International Covenant on Civil and Political Rights (ICCPR) art. 15(2); see also Universal Declaration of Human Rights art. 11(2). Although the Federal Republic of Germany had filed a reservation to a similar provision in the European Human Rights Convention, it did not file a reservation to this provision in the International Covenant on Civil and Political Rights. 39 BGHSt at 27.

62. ICCPR art. 6(1).

63. Ibid. art. 12(2).

64. Ibid. art. 12(3); see, e.g., 39 BGHSt at 17–20. But this narrow interpretation of the limitations of article 12(3) has also been subject to sharp criticism. See Laskowski, , “Unrecht—Strafrecht—Gerechtigkeit,” pp. 159–61Google Scholar; see also Dreier, Ralf, Juristische Vergangenheitsbewältigung, p. 32 Google Scholar.

65. See, e.g., 39 BGHSt at 16–23.

66. 39 BGHSt at 16–17. See Verf. DDR (1974) art. 51. In approving the Covenant in 1991, the United States Senate also declared that the rights contained in the Covenant would not be “self–executing” within the United States; these provisions would therefore require statutory implementation in order to have domestic legal effect.

For the period before the effective date of the Covenant, the German courts have held that the Universal Declaration of Human Rights of 1948 can play a similar role in findings that present prosecutions of border guards may be justified. See 40 BGHSt 241, 244–49 (1994); 41 BGHSt 101, 105 (1995).

67. See 39 BGHSt at 22–23.

68. 41 BGHSt at 112; see also 39 BGHSt at 30.

69. 95 BVerfGE 96 (1996). For commentary on this decision, see Hobe, Stephan and Tietje, Christian, “Government Criminality: The Judgment of the German Federal Constitutional Court of 24 October 1996,” German Yearbook of International Law 39 (1996): 523 Google Scholar; Ambos, “Nuremberg revisited”; Starck, Christian, “Anmerkung,” Juristen Zeitung 52 (1997): 147 Google Scholar. For the BGH opinions in this case, see 40 BGHSt 218 (Keßler, Streletz, Albrecht); 40 BGHSt 241 (border guard).

70. 95 BVerfGE at 131–33.

71. Ibid. at 133.

72. Ibid. The Court also placed some emphasis on the view that defendants' actions had gone beyond the justification permitted by written GDR law. Ibid. at 132, 133, 136; see Starck, “Anmerkung.”

73. 95 BVerfGE at 133. This aspect of the Constitutional Court's opinion marks an interesting contrast with its recent decision quashing criminal convictions of GDR espionage agents who operated solely in the GDR. 92 BVerfGE 277 (1995). In that case, the Court recognized the agents' reasonable expectation that they would not be prosecuted, in the GDR, for espionage against the Federal Republic. Invoking the rule of law, the Court concluded that this reliance interest deserved continuing protection in united Germany. The resolution of the apparent contradiction between the Espionage case and the Border Guards case may be found in the Court's differing evaluation of the underlying acts. In the case of the GDR spies, the Court declared that espionage was a morally neutral activity, undertaken by all nations and not in violation of international law. In contrast, the Court found that the shootings at the GDR border were severe human rights violations condemned by international law. The Border Guards case also presents an interesting contrast with the Soviet Bodenreform decision in which the Constitutional Court in effect declined to measure the land expropriations of the Soviet occupation period against supra–legal norms. Again, this result may imply the Court's view that the expropriations did not violate such norms. See 84 BVerfGE 90 (1991); Quint, , Imperfect Union, p. 137 Google Scholar.

74. See Nuremberg Charter art. 8. Yet, even in the Nuremberg judgment, the tribunal may have relaxed this exclusion by remarking that “the true test, which is found in varying degrees in the criminal law of most nations, is not the existence of the order, but whether moral choice was in fact possible.” Nazi Conspiracy and Aggression: Opinion and Judgment (Washington, DC: United States Government Printing Office, 1947), pp. 53–54 Google Scholar. See King, Henry T., ed., Nuremberg Revisited: The Judgment of Nuremberg in Today's World (1970), pp. 5–7 (remarks of Adrian Fisher)Google Scholar.

75. § 258(1) StGB–DDR; §5(1) WStG; see, e.g., 39 BGHSt at 185–86, 188–89.

76. 39 BGHSt at 33–34; 40 BGHSt at 250–51; 39 BGHSt at 185–90; see also 95 BVerfGE at 141–43.

77. 42 BGHSt 356, 362 (1996).

78. But see 95 BVerfGE at 142. In contrast, where the potential escapee was an armed soldier, rather than an unarmed civilian, the BGH found that the order was not “obviously” illegal, and the border guard was acquitted. 42 BGHSt at 362.

In these cases, defendants also claimed that they were immune from prosecution because they were government officials exercising the powers of the GDR state. The German courts rejected these arguments: the so–called act of state doctrine was not a rule of international law and had never been accepted in German law and, moreover, there was no immunity for officials of a state that had ceased to exist. 39 BGHSt 1, 5–6; see also 95 BVerfGE at 128–30. Finally, the courts also rejected the argument that the defendants were acting under a mistake of law. Even if that were so, the courts concluded, the mistake was “avoidable”; consequently, this defense provided by German criminal law did not apply.

79. The cases in which an actual prison term was imposed on a border guard have been rare: up to 1996, only two border guards were sentenced to prison. McAdams, A. James, “Communism on Trial: The East German Past and the German Future,” in Transitional Justice and the Rule of Law in New Democracies, ed. McAdams, A. James (Notre Dame, IN: University of Notre Dame Press, 1997), p. 259 Google Scholar. In one such instance, a guard received a ten–year term because he killed a person who had abandoned his attempted escape and had already surrendered. See Grafe, Roman, “Die Strafverfolgung von DDR–Grenzschützen und ihren Befehlsgebern: Eine vorläufige Bilanz,” Deutschland Archiv 30 (1997): 378 Google Scholar.

80. 95 BVerfGE at 140–41, 143.

81. Ibid. at 140.

82. Ibid. at 140–41.

83. Ibid. at 141.

84. Ibid. at 143.

85. For a similar phenomenon in the prosecution of government illegality in other former East Bloc states—as well as in “transformations” in other parts of the world, see Teitel, Ruti, “Transitional Jurisprudence: The Role of Law in Political Transformation,” Yale Law Journal 106 (1997): 2048–51CrossRefGoogle Scholar (“An emphasis on prosecution rather than punishment reflects the extraordinary nature of transitional justice.”)

86. See generally FAZ, 9 October 1996, p. 6. Indeed, by 1997, the Berlin prosecutors office had undertaken over 19,000 investigations of “regime criminality” and “judicial injustice,” but these investigations had yielded only 276 actual prosecutions. FAZ, 9 July 1997, p. 4.

87. Politbüro members Schabowski and Kleiber may be the exceptional cases because—unlike the other defendants—they were not specifically concerned with military matters or located somewhere in the military chain of command. In contrast, Egon Krenz, for example, was the member of the Politbüro who was responsible for “security” issues, and he had also been a member of the National Defense Council since 1983. Der Spiegel, 12/1997, pp. 68–69 Google Scholar.

88. Keßler, , Zur Sache, pp. 216–17, 349–50, 375–76Google Scholar; Der Spiegel, 34/1997, p. 34 (Krenz)Google Scholar; 36/1997, pp. 35–36 (Krenz); Deutschland Archiv 30 (1997): 698 (Krenz)Google Scholar. See also Wolff, Friedrich, “Keine Chance—Gedanken zum Politbüro–Prozeß,” Neue Justiz 51 (1997): 505 Google Scholar.

89. Washington Post, 26 August 1997, p. A11 Google Scholar.

90. On the Hallstein Doctrine, see, e.g., McAdams, A. James, Germany Divided: From the Wall to Reunification (Princeton: Princeton University Press, 1993), p. 35 Google Scholar.

91. 36 BVerfGE 1, 22–24, 26–27 (1973) (the GDR border has a status “similar to those [borders] that run between the states of the Federal Republic of Germany”). Other countries, however, took a somewhat different view, and both the Federal Republic and the GDR entered the UN in 1973. The United States recognized the GDR in 1974.

92. See McAdams, , Germany Divided, p. 98 Google Scholar; arts. 16, 116 GG; 36 BVerfGE at 29–32.

93. For post–unification expressions of this point of view, see, e.g., Christian Starck, 51 VVDStRL at 39 (the Stasi files “document the illegitimacy of the party dictatorship, which felt insecure in the face of its subjects”); see also ibid. at 18, 20, 42; 51 VVDStRL at 129, 130, 131 (remarks of Helmut Quaritsch). See generally, Fricke, Karl Wilhelm, “Die Geschichte der DDR: Ein Staat ohne Legitimität,” in Jesse, Eckhard and Mitter, Armin, ed., Die Gestaltung der Deutschen Einheit (Bonn Berlin: Bouvier, 1992), p. 41 Google Scholar.

94. Indeed, from the point of view of constitutional law, the validity of certain GDR governmental acts was expressly acknowledged by the Constitutional Court in its Basic Treaty decision of 1973. 36 BVerfGE at 29; see also 77 BVerfGE 137 (1987). But such a constitutional decision probably cannot answer broader political questions of legitimacy. Cf., e.g., Juristen Zeitung 47 (1992): 692 Google Scholar (decision of trial court in an early Border Guards case, remarking that the GDR “rulers were legitimated by nothing”).

95. 41 BGHSt 101, 106, 108–09; 39 BGHSt 1, 20.

96. 41 BGHSt at 108 (quoting Basic Treaty case).

97. Ibid. at 108–09. In another Border Guards decision, the BGH remarks: “The border regime of the GDR was particularly harsh because Germans from the GDR had a special motive for wishing to cross the border into West Berlin and West Germany: they belonged, with the people on the other side of the border, to one nation; and they were bound to them through various familial and other personal relations.” 39 BGHSt at 20.

98. See 41 BGHSt at 106.