Memory and Power in Post-War Europe: Studies in the Presence of ...

272 Timothy Garton Ash
destruction of Politburo records and then, more substantially, indicted
on charges relating to the shooting of protesting workers on the Baltic
coast in 1970/1. A number of senior figures were charged with causing
the deaths of striking workers during martial law in 1981–2. But altogether,
the judicial proceedings have been fitful, fragmentary and usually
inconclusive.
Germany has, unsuprisingly, been the most systematic. Border guards
have been tried and convicted for shooting people who were trying to
escape from East Germany. More recently, the country’s last communist
leader, Egon Krenz, was sentenced to six and a half years’ imprisonment
for his co-responsibility for the ‘shoot to kill’ policy at the frontier. Several
other senior figures were found guilty with him. Yet even in Germany, the
results are very mixed, to say the least.
The arguments generally made for trials are that they go at least some
way to doing justice for the victims; that they help to deter future transgressions
by the military or security forces; that they exemplify and
strengthen the rule of law; and, finally, that they contribute to public
knowledge and some sense of a wider catharsis. The first consideration –
justice for the victims – certainly applies in some of these cases; the second
applies to a much smaller degree, since, broadly speaking, where such deterrence
might still be important (as in Russia) there have been no such
trials, and where there have been trials (as in Germany) the deterrence is
hardly needed.
Have these trials exemplified and strengthened the rule of law?It is
very hard to say that they have. Equality before the law is a fundamental
principle: but even in Germany, still more elsewhere, there has been a
radical, arbitrary and political selection of the accused. Then there is
the familiar problem of trying people for crimes that were not crimes
on the statute books of their countries at the time. How to avoid violating
the time-honoured principle of nulla poena sine lege?
Determined to avoid such a ‘Nuremberg’ procedure, German prosecutors
have therefore tried to identify crimes that were offences in East
German law at the time. However this has involved a highly selective
application of East German law, thus violating another basic principle.
(Yet otherwise, the prosecutors should themselves be prosecuted for defaming
the East German state, which was an offence under East German
law!) And when the case could still not quite be made to stick, they
bridged the gap with an awkward invocation of ‘natural law’. Meanwhile,
the former Minister for State Security, Erich Mielke, was convicted not
for his heavy responsibility in the regime but for his part in the murder of
a policeman as a young street-fighting communist in 1931. The central
trial of Erich Honecker, the Party leader from 1971 to 1989, was finally