The German Border Guard Cases and International Human Rights

Rudolf Geiger ¹

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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.

1 Introduction

The reunification of Germany, which came about through the accession of the German Democratic Republic (GDR) to the Federal Republic of Germany on 3 October 1990,² entailed specific legal problems that were posed by the continuing effects of the defunct socialist regime. In order to resolve these problems, the annexes to the Unification Treaty contain, inter alia, elaborate lists of rules which modify the entry into force of the laws of the Federal Republic in the territory of the former GDR.

In criminal matters the Unification Treaty provided that the law applicable to acts committed in GDR territory prior to the date of unification continued to be the criminal law of the GDR, unless in individual cases the criminal law of the Federal Republic was more favourable to the defendant.³ This approach did not create any substantial problems in cases of `ordinary' crimes, such as theft, robbery or murder committed by private persons. But the situation proved to be quite different for cases of so-called `government criminality', where GDR officials or soldiers committed acts that were held to be lawful or were even legally required in the GDR legal system as practised at that time but were considered serious crimes in West German law.

An important example of such government criminality came to light with the border guard cases. In these cases the courts were required to deal with the objections put forward by defendants that GDR law had indeed provided justification for their actions and that it should consequently be applied in their cases. In dealing with these objections, the courts, inter alia, referred to the infringement of international human rights by the GDR practices. In this way, they made use of new ways in which international human rights standards could arguably have effects in the domestic order of a state.

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1 Professor of Law, University of Leipzig, Otto-Schill-Strasse 2, D-04109 Leipzig, Germany.

2 Treaty between the Federal Republic of Germany and the German Democratic Republic on the Establishment of German Unity (`Unification Treaty') of 31 August 1990; English version in 30 ILM (1991) 457.

3 Unification Treaty, Annex I, Chapter III, Subject Matter C.

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