The German Border Guard Cases and International Human Rights Rudolf Geiger* Abstract After the reunification of Germany on 3 October 1990 the German courts were required to deal with charges of homicide against GDR border guards who had killed fugitives trying to escape over the Berlin Wall or across the border separating East from West Germany. According to the Unification Treaty, the law relevant to crimes committed on GDR territory prior to the date of unification was the criminal law of the GDR, unless the law of the Federal Republic of Germany was more favourable to the defendant. Thus, defendants invoked GDR law to establish that their actions had been lawful and could not be held to be criminal. This article demonstrates how international human rights were brought into play by the courts in arguing that the laws of the GDR had to yield to a higher law. It also refers to the reasoning of the Federal Constitutional Court when it addressed the question of ex post facto laws. There the Court’s arguments remained exclusively within the sphere of German constitutional law. It is contended that the Court’s reasoning would have been more convincing had it also taken into account in this instance the relevant provisions of international human rights instruments. * Professor of Law, University of Leipzig, Otto-Schill-Straße 2, D04109 Leipzig, Germany.
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