Ethics: The Price of Obedience

By WILLIAM A. HENRY III

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.

With reporting by James O. Jackson and Kanta Stanchina/Bonn