Rejecting Radbruch: The European Court of Human Rights and the Crimes of the East German Leadership

Leiden Journal of International Law

Volumn 14, Issue 3, 2001, Pages 653-663

  Miller, Russell ^a  

^a DUKE UNIVERSITY   (United States)

Author keywords

East Germany; European Court of Human Rights; nullum crimen sine lege; Radbruch Formula

Indexed keywords

EID: 84966765444     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156501000322     Document Type: Article

References (26)

1. Streletz, Kessler and Krenz v. Germany, Nos. 34044/96, 35532/97 and 44801/98, http:// hudoc.echr.coe.int/hudoc (European Court of Human Rights, 22 March 2001) (hereinafter ‘Streletz, Kessler and Krenz’). On the same day the Court of Human Rights issued a separate judgement in the related case of a former border guard who had also been convicted (intentional homicide) of killing an East German citizen attempting to flee the border into West Germany. (K.-H.W. v. Germany, No. 37201/97, http://hudoc.echr.coe.int/hudoc (European Court of Human Rights, 22 March 2001). The Court was confronted with questions that differed somewhat from those raised by the political and military leaders, though there was considerable commonality. The Court found no violation of the Convention and therefore affirmed the former border guard's conviction. For the sake of economy, this report only addresses the Court's judgement in Streletz, Kessler and Krenz v. Germany.
2. In an editorial the Frankfurter Allgemeine Zeitung declared, after the Human Rights Court issued its decision: “The justices in Strasbourg have effectively put an end to the judicial mopping up required after German reunification.” And Justice for All, Frankfurter Allgemeine Zeitung (English Edition), 23 March 2001, at 1.
3. See, G. Radbruch, Gesetzliches Recht und übergesetzliches Unrecht, Süddeutschen Juristenzeitung 105 (1946). The Radbruch Formula, justifying the imposition of an editorial the Frankfurter Allgemeine Zeitung declared, after the Human Rights Court issued its decision: “The justices in Strasbourg have effectively put an end to the judicial mopping up required after German reunification.-statutory law over positivist but unjust law, that is to say, extremely unjust law mutates into no law at all, is the most oft cited passage in 20th Century legal philosophy. H. Dreier, Gustav Radbruch und die Mauerschützen, 9 Juristen Zeitung 421, at 423 (2 May 1997).
4. German Bundestag, Questions on German History: Paths to Parliamentary Democracy 373 (1998). In the appeal of the Streletz and Kessler cases the Bundesgerichtshof (Federal Court of Justice) relied on the facts, established at the trial by the Berlin Landgericht (Regional Court), including the following: “From the beginning of the year 1949 to the middle of the year 1961, around 2.5 million Germans fled to the West out of the GDR.” 26 July 1994, BGHSt 40, 218 (219).
5. Art. 213 of the Criminal Code closed the border. It read: “(1) Any person who illegally crosses the border of the German Democratic Republic or contravenes provisions regulating temporary authorization to reside in the German Democratic Republic and transit through the German Democratic Republic shall be punished […].” Sec. 17(2)(a) of the People's Police Act and Sec. 27(2) of the Borders Act, in conjunction with other provisions, provided for the use of deadly force to enforce the border. Sect. 17(2) of the Police Act read: “(2) The use of firearms is justified (a) to prevent the imminent commission of continuation of an offense which appears, according to the circumstances, to constitute-a serious crime […].” Sec. 27(2) of the Borders Act read: “(2) The use of firearms is justified to prevent the imminent commission or continuation of an offense which appears in the circumstances to constitute a serious crime. It is also justified in order to arrest a person strongly suspected of having committed a serious crime.”
6. The estimates differ, often because some take account only of those deaths at the wall in Berlin while others refer to all deaths along the entire length of the intra-German border, including the Berlin Wall. The incomplete record of incidents at the intra-German border maintained by the GDR also adds to the difficulty of fixing an exact number of deaths. The Court of Human Rights adopted the following position with respect to the number of deaths resulting from attempted westward escapes along the intra-German border: “The official death toll, according to the FRG's prosecuting authorities, was 264. Higher figures have been advanced by other sources, such as the ‘13 August Working Party’ (Arbeitsgemeinschaft 13. August), which speaks of 938 dead.” Streletz, Kessler and Krenz, Art. note 1, at 13. But see, F. Pergande, On Guard: East German Force Kept Deadly Vigil on Border, Frankfurter Allgemeine Zeitung (English Edition), 9 August 2001, at 3 (“In the 28 years that followed, more than 128 people died trying to escape across the border, 80 of them along the Berlin Wall […]. Counting everyone who drowned in the Baltic Sea or in the border rivers, all those who died at the borders of third countries and all who committed suicide when their plans to escape were discovered, more than 900 people are estimated to have died during escape attempts.”); H. Rosenau, Tödliche Schüsse im staatlichen Auftrag, 2nd ed., 36-37 (1998) (claiming that there were more than 900 deaths, not limited to Berlin); K. Seidel, Rechtsphilosophische Aspekte der “Mauerschützen-Prozesse” 11, n. 2 (1999) (citing a number of estimates, from a variety of sources, ranging from “over 200” to 470 to “some 900”). See also A List of Those Who Died Trying to Escape (visited 17 June 2001) http://www.swlink.com/~ateo/namensliste.html (citing 81 deaths, limited to Berlin); B. Kennedy, Order 101: Shooting to Kill at the Berlin Wall (visited 17 June 2001) http://www.cnn.com/SPECIALS/cold.war/episodes/09/spotlight/ (citing more than 260 deaths, limited to Berlin, with more than three times that number elsewhere along the border); H. Burkhardt, Berlin Wall History: Escape Attempts to the West (visited 17 June 2001) http://www.dailysoft.com/berlinwall/history/escape.htm (citing 171 deaths, limited to Berlin).
7. Pergande, The estimates differ, often because some take account only of those deaths at the wall in Berlin while others refer to all deaths along the entire length of the intra-German border, including the Berlin Wall. note 6, at 3; Rosenau, The estimates differ, often because some take account only of those deaths at the wall in Berlin while others refer to all deaths along the entire length of the intra-German border, including the Berlin Wall. note 6, at 22; Seidel, The estimates differ, often because some take account only of those deaths at the wall in Berlin while others refer to all deaths along the entire length of the intra-German border, including the Berlin Wall. note 6, at 19.
8. Streletz and Kessler were originally convicted, by the Regional Court, of incitement to commit intentional homicide, 5 Neue Justiz 210 (1994) (Judgement of the Berlin Regional Court, 16 September 1993). The charge was changed on appeal by the Bundesgerichtshof (Federal Court of Justice) to intentional homicide as indirect principals. 26 July 1994, BGHSt 40, 218. Krenz was convicted, in the first instance, of intentional homicide (Judgement of the Berlin Regional Court, 25 August 1997).
9. Streletz, Kessler and Krenz, Streletz and Kessler were originally convicted, by the Regional Court, of incitement to commit intentional homicide note 1, at 14.
10. Id. See also BGHSt 40, 218 (220): “The National Defense Council was the central state organ obliged with authority over the unified direction of the defense and security measures of the GDR.”
11. Streletz, Kessler and Krenz, Id. See also BGHSt 40 note 1, at 65.
12. July 1994, BGHSt 40, 218 (232); citing 26 July 1994, BGHSt 40, 241 (244).
13. Art. 103(2) reads: “An act may be punished only if it was defined by a law as a criminal offense before the act was committed.”
14. Dreier, Art. note 3, at 428.
15. October 1996, BVerfGE 95, 96 (135-136). Translated and quoted as part of the European Court of Human Rights decision; Streletz, Kessler and Krenz, Art. note 3 note 1, at 22.
16. Dreier, BVerfGE 95 note 3, at 428; citing R. Alexy, Mauerschützen: zum Verhältnis von Recht, Moral und Strafbarkeit (1993).
17. And Justice For All, BVerfGE 95 note 3 note 2, at 1.
18. Streletz, Kessler and Krenz, Justice For All note 1, at 50 (citing Kokkinakis v. Greece, Decision of 25 May 1993, 1993 ECHR (Ser. A), no. 260-A, at 22).
19. Streletz, Kessler and Krenz, id., at 81.
20. Streletz, Kessler and Krenz, id., Concurring Opinion Zupancic, J., at 7.
21. Streletz, Kessler and Krenz, id., at 65-66.
22. Rosenau concluded that the two totalitarian epochs were not comparable but, as the Human Rights Court ultimately found, making a comparison of the two is not necessary for the condemnation in a criminal process of the East German regime. Rosenau, Kessler and Krenz note 6, at 24-28.
23. See, David Childs, The GDR: Moscow's German Ally 80-96 (1983) (a good treatment of Chancellor Willy Brandt's Ostpolitik, including details of the extensive ties that developed between East and West Germany from the mid-1960s onwards, culminating in the December 1972 Basic Treaty with which the two states agreed to normal relations); Questions on German History, Rosenau concluded that the two totalitarian epochs were not comparable but, as the Human Rights Court ultimately found, making a comparison of the two is not necessary for the condemnation in a criminal process of the East German regime. note 4, at 388, 408 and 419 (describing the extensive economic relationship between the two Germanies). The ties between Germany's estranged halves did not, however, develop without considerable and impassioned opposition from within West Germany. The Federal Republic had, for more than twenty years, abided by a policy that foreswore all formal contacts with East Germany. Even after contacts between East and West Germany were established as a result of Brandt's Ostpolitik, the Federal Republic maintained a critical stance towards East Germany, as characterized by the Federal Constitutional Court's decision upholding the constitutionality of the 1972 Basic Treaty, in which the Court asserted that the East German border regime violated human rights. 31 July 1973, BVerfGE 36, 1 (35).
24. The “diplomatic front” that featured prominently in the lead-up to World War II is now summarily dismissed with the term “appeasement,” Chamberlain's policy of negotiating peace with Hitler in the years before Germany's invasion of Poland. After the declaration of war, all German efforts at securing a peace, short of the unconditional surrender offered in May, 1945, were rebuffed. “The historical importance of Churchill is that […] he treated the concept of peace offers from Hitler as a contradiction in terms and ignored them.” P. Calvocoressi & G. Wit, Total War 327 (1972). Most significantly, with respect to the comparison of relations between the Allies and the Axis powers in World War II and the West and East in the second half of the Cold War, was the fact that even rejected offers of peace from the Germans had to be communicated through neutral powers like the Swiss or the Swedish. See id., at 533 and 540. The extent of this isolation of the Axis powers is also demonstrated by the steps taken in opposition to Germany by the United States prior to its entry into the war, including the seizure of Axis-controlled ships in American ports, the complete freeze of all Axis assets, and the creation of the Lend-Lease Act in support of anti-Axis war efforts. E.S. Corwin, Total War and the Constitution 29-31 (1947).
25. This reference to “total war” should not be inextricably linked with Joseph Goebbels’ invocation of the phrase in his Berlin speech (“Nation, Rise Up, and Let the Storm Break Loose”) of 18 February 1943, wherein he tied the concept to the threat posed by a “Jewish world revolution” in the form of the Soviet army. See, Goebbels Speech on Total War at the German Propaganda Archive of Calvin College (visited 8 August 2001) http://www.calvin.edu/academic/cas/gpa/goeb.36.htm. Its use here refers to the “totality of objective” and “functional totality” that characterized the Allies war effort. See, Corwin, The “diplomatic front” that featured prominently in the lead-up to World War II is now summarily dismissed with the term “appeasement,” Chamberlain's policy of negotiating peace with Hitler in the years before Germany's invasion of Poland. note 30, at 4. The totality of objective is exemplified by the Allies’ extensive bombing of civilian targets, culminating in the use of the Atomic bombs in Japan. Functional totality, on the other hand, involved the “politically ordered participation in the war effort of all personal and social forces, the scientific, the mechanical, the commercial, the economic, the moral, the literary and artistic, and the psychological.” Id.
26. The Allies expressly committed themselves to demanding the unconditional surrender of Germany in the Casablanca Declaration of 1943. See, Calvocoressi & Wit, This reference to “total war” should not be inextricably linked with Joseph Goebbels’ invocation of the phrase in his Berlin speech note 30, at 379.