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                                                                                WORLD, Page 36

ETHICS

The Price of Obedience


Should East German border guards have followed the law and their
orders or listened to their conscience?

By WILLIAM A. HENRY III -- Reported by James O. Jackson and
Kanta Stanchina/Bonn


    When East German border guard Ingo Heinrich killed a man
fleeing toward the freedom of West Berlin in February 1989,
Heinrich was just following orders. "Shoot to kill" was the
command for dealing with people who tried to escape across the
border, and in the eyes of Heinrich's supervisors his actions
were not merely legal but commendable. Three years later,
Heinrich, 27, lives in the same Berlin, but a different
government holds sway and new laws prevail. Now he is,
retroactively, a felon. Last week he was convicted of
manslaughter and sentenced to 3 1/2 years in prison --
specifically, the trial judge said, for following the laws of
his country rather than asserting his conscience. Said Judge
Theodor Seidel: "Not everything that is legal is right."

    The principle that an individual may be bound by a higher
moral authority, beyond what the statutes provide, was
established in West Germany decades ago, during trials of former
Nazi leaders. Like Seidel, many Germans would apply the same
theory in judging the discredited communist regime. But there
are troubling doubts about the fairness of the principle or how
it is applied. That was abundantly clear in Heinrich's case:
right after the verdict, the prosecution joined the defense in
vowing to appeal the sentence as too harsh.

    The idea that a legal act can be made a crime
retrospectively is alien to U.S. constitutional law -- as
Senator Robert Taft of Ohio, often termed the conscience of the
Republican Party at mid-century, noted in criticizing the Nazi
trials. It is a "fundamental principle of American law that a
man cannot be tried under an ex post facto statute," said Taft.
"About this whole judgment there is the spirit of vengeance, and
vengeance is seldom justice." Vengeance is precisely the point
for some Germans who have grievances against the East German
state. But even if one views it as fair to criminalize acts
retroactively, as a majority of Germans and as residents of
other former communist states in Eastern Europe seem to feel,
questions persist about whether the right people are being
prosecuted and the justice is evenhanded.

    Is it fair to single out Heinrich and a few others for
what many did? During the 28 years the Berlin Wall divided
Germany's once and future capital, an estimated 200 people were
killed and 700 injured. Hundreds of sharpshooters were involved.
Given the difficulty of reconstructing events up to decades old,
only 38 shooters have been identified. Although hundreds of
thousands of East Germans spied on friends and neighbors and
millions were complicit in some part of the government, only
about 500 people are under investigation, many for schemes
involving fraud for personal gain rather than diligence to duty.
For some, the trials are part of a national healing process,
especially for East Germans, who lived under some form of
dictatorship for a half-century. Professor Michael Wolffsohn,
who specializes in German-Israeli relations at the University
of the Armed Forces in Munich, says, "There can be no amnesty.
For our psychological and political health, it is necessary that
those murderers are sentenced to at least a year or two." Yet
it is understandable that some of those on trial may view
themselves as scapegoats, sacrificed to expiate the guilt of a
whole society that was never taught about this higher moral
authority.

    Is it fair, moreover, to punish soldiers even the trial
judge acknowledged were "at the end of a long chain of
responsibility," while there is scant sign their superiors will
be called to account? Only two senior East German officials have
gone on trial, both for fraud, and none has gone to jail. The
country's former leader, Erich Honecker, fled to Moscow to evade
trial, and is living there under diplomatic protection at the
Chilean embassy -- while suing the new government to restore his
retirement pay. A letter from a West German retiree to one of
Heinrich's co-defendants, border guard Andreas Kuhnpast,
cynically recalled the Nazi trials. "Hold your head up high,"
it said. "Once again they're trying to hang the small fry and
let the big shots run." Chancellor Helmut Kohl voiced similar
sentiments at a lunch with foreign journalists last week. Said
Kohl: "While I have no sympathy for people shooting at the
borders, it is insufferable that the string pullers are living
comfortably and wondering how to get a pension."

    Prosecutors and scholars insist that the process is only
beginning and that while it would be politically desirable to
start from the top down, legally it may be necessary to do the
reverse, proving that crimes were committed by functionaries
before overseers can be held responsible.

    Set against the moral complexities are the simple truths
that no one was compelled to become a border guard and not all
border guards shot to kill. Three others went on trial with
Heinrich. Kuhnpast was given a suspended sentence because his
bullets went wide. A third guard shot into the ground, and a
fourth told colleagues to shoot only to apprehend; they were
acquitted. Heinrich has expressed regret. But he is alive, and
Chris Gueffroy, a 20-year-old waiter who only wanted to be free,
is dead. Neither could have foreseen that Berlin's Wall would
fall nine months later. But once again Germany is insisting that
its people should have had a more acute moral vision.