BERLIN, JAN. 20 -- A panel of German judges today convicted two former East German border guards of killing their fleeing countrymen and told the guards they had a duty to disobey the Communist government's "simply unjustified" shoot-to-kill policy along the Berlin Wall.
After a five-month trial -- the first to weigh the culpability of East Germans who followed government orders -- Berlin's Superior Court issued an unexpectedly tough verdict that will likely clear the way for prosecution of hundreds of other East Germans accused of abuses in the now dissolved country.
Judge Theodor Seidel noted that the border guards, young men who seemed alternately bewildered and grief-stricken through the long trial, were "only the last links in a long chain of responsibility." But he said the shots aimed at fellow citizens, like the crimes of Nazi Germany, were strikes "against the essence of human rights. The legal maxim 'Whoever flees will be shot to death' deserves no obedience."
Although prosecutors had asked for suspended sentences, the court sent former guard Ingo Heinrich to prison for 3 1/2 years for manslaughter in the shooting death of waiter Chris Gueffroy, the last of about 200 East Germans killed trying to flee their country. A cross marking the spot where Gueffroy died -- a stretch of pavement behind the Reichstag, the historic and future home of Germany's parliament -- has become a prime tourist attraction in Berlin.
The court also convicted former guard Andreas Kuehnpast of attempted manslaughter but gave him a two-year suspended sentence. Two other guards were acquitted, one because he chose to shoot only at the ground around the fleeing defector, the other, a senior officer, because he ordered his men to shoot to apprehend, not to kill.
Today's ruling is the first to decide that West German criminal law -- now the law of all Germany -- can be applied to events that took place under East German law. That extension of Western law will be appealed to Germany's highest court, but if it stands, it opens the door to hundreds of trials of government officials and others accused not only in border shootings but in forced adoptions, involuntary psychiatric treatments and other violations of human rights during 40 years of Communist rule.
Seidel's verdict also sends a message to East Germany's former party boss, Erich Honecker, and other top Communists charged with crimes stemming from their repressive rule. Honecker, 79, has taken refuge in the Chilean Embassy in Moscow, trying to avoid Berlin prosecutors who want to try him for ordering the shoot-to-kill policy that governed guards along the fences and walls that divided Germany for 28 years.
"It's easy to speak now about a superior law," said Rolf Bossi, a prominent defense lawyer who represented Kuehnpast. But the border guards "experienced their law as law and knew no other," he said after the verdict.
East German law specifically allowed the use of force to "secure the state border," but Judge Seidel told the border guards that "not everything in the law books is just." The lesson of German history, he said, is that each person must use his conscience and decide "to refuse to obey" immoral commands.
The judge's own brother, who lived in East Germany, was arrested in the 1960s when he attempted to flee the country.
Heinrich, 27, had pleaded with the judges to find him not guilty because "I was following the laws and commands of the German Democratic Republic." Kuehnpast, who repeatedly broke down on the witness stand during his weeks of testimony, had told the judges that "what happened will haunt me for the rest of my life."
But the court decided to make an object lesson of the two as cogs in the wheel of Communist oppression, and compared their acts to the blind obedience of many Germans during the Nazi era.
West Germany has tried to instill in its citizenry a greater willingness to oppose authority. Its young people have attended political education courses designed to encourage challenging intellects and its military has created an Inner Leadership academy where officers and draftees are being taught that it is a soldier's duty to oppose immoral orders.