Frying the Small Fry : Berlin Wall prosecutions focus suspiciously on mere border guards

The Berlin Wall was built by East Germany in August, 1961, in a desperate effort to halt mass defections to the West by citizens of the communist state. Between then and November, 1989, when the wall was breached as the East German regime entered its last days, more than 200 people were shot dead as they attempted to escape.

This week a Berlin court convicted two former East German border guards of shooting down a young man named Chris Gueffroy on the night of Feb. 6, 1989, the last killing to occur at the wall. One was given 3 1/2 years in prison for manslaughter, the other a suspended sentence. In Germany, this first trial in connection with the wall killings has become a matter of intense controversy.

The controversy turns on a question of proportionate justice: Why, in this initial prosecution, did the German government choose to go after relative small fry, when the top-ranking officials who wrote and enforced the law that made flight from East Germany a capital crime have so far gone unpunished? It is a reasonable question, and Chief Judge Theodor Seidel indirectly sought to answer it as he passed sentence.

Seidel invoked the principle growing out of the Nuremberg trials of Nazi war criminals, that those who commit illegal acts under orders from their governments also bear responsibility for the crimes. East German border guards could be seen as willing participants in a crime. What Nazi brutalities made clear, Seidel reaffirmed, is that some laws must not be followed.

That view is morally unassailable. The fact remains that those most responsible for the killings at the wall have not been prosecuted. Former East German leader Erich Honecker, charged in four such deaths, has found refuge in the Chilean Embassy in Moscow. But what of the many other former--and more accessible--East German officials who also bear heavy responsibility for the killings? Whatever justice has been done in the murder of Chris Gueffroy and others like him will be incomplete until these higher-ups who issued the shoot-to-kill orders are called to account.