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Dealing with the past through trial

June 23, 2010

Following the fall of the Berlin wall in 1989, and subsequent reunification of Germany a year later, much attention was paid to how to deal with the past. Dealing with the past crimes of regimes, the Nazis and the GDR in particular, has been a challenge within German society. Coming to terms with the past and finding a way to reconcile the past political traumas has become an important issue within German society, and as it is with many difficult situations, there are differing opinions on how this is to be accomplished. How does a society recover from the horrors of the Nationalist Socialist Party or the dark realities of the German Democratic Republic and its secret police? West German president Richard von Weisacker once remarked that “whoever closes his eyes to the past becomes blind to the present?” Many would believe that to recover from the past you would simply need to find those who were responsible for the crimes and make certain that they are held accountable. Others would believe that to fully recover from a dark history, it would be important to find a way towards reconciliation, and then eventually to seek justice, not the other way around. If the bitter angry past can be overcome, what actions must states fulfill in order to atone for past evils?

After unification had become successful in Germany in 1990, it became an important issue to start to deal with the crimes that the East German government had committed. The method in which most governments would actively confront criminal offenses would be through legal retribution. In the case of the GDR, these matter were quite complicated. Seeking justice through the courts was the popular opinion for many, and making sure that the leader of the GDR, Erich Honecker would be convicted of his crimes was to many an important way of dealing with the past. The prevailing wisdom about retributive justice is that it demands that offenders be held accountable for their wrongdoing through prosecution and punishment (Amstutz, p. 67). The only way to repair ruptured relationships between victims and victimizers and restore their moral equality, is to make sure that offenders be diminished through public condemnation, and victims must regain their former moral status (p. 68). This is easier said then done, and within the context of the German Democratic Republic, much harder to accomplish.

This strategy for seeking justice through prosecution and public condemnation poses many challenges. Although it seems a best fit for carrying out against those at the top, the senior government and military officials, its becomes ever more complicated when dealing with those in the middle and at the bottom. The evidence for criminal culpability of government officials and senior military leaders is likely to be difficult to obtain as well. Germany found it easier to prosecute soldiers who killed citizens trying to flee East Berlin than the leaders who established the evil regime of totalitarian communism (p. 68). Furthermore, prosecuting those responsible for East German abuses was difficult from a legal standpoint. How do you accuse those responsible of committing abuses when in their own country, the laws allowed for such abuses to exist? Many legal scholars believed that if East Germans were to be held accountable for their actions, they could not be tried under the laws of pre-unification West Germany. Pre-unification West German criminal law was not designed to deal with the sorts of government sponsored crimes of the GDR era. Its application to offenses committed under communist rule was bound to displease both accusers and accused alike (McAdams, p.54).

Judging the East German past could have been made easier if the East Germans themselves had been able to put their leaders on trial, but such was not the case. The hastiness of the revolution, and the quick ability for the two Germany’s to unify prevented such internal East German trials to exist. Once again it seemed that Germans, from both East and West, were coming to terms with the legacy of totalitarianism. Honecker and his associates were not merely guilty of having committed specific criminal offenses during their time in office. As leaders of the GDR’s Socialist Unity party (SED), they were responsible for setting into motion and then maintaining what many Germans felt was a distinctively unjust political order, an Unrechtsstaat, “state without law” (McAdams, p.56). The state itself had been set up in such a way to “pacify the masses of its people and force them into submission” (p.56). But because the laws of the GDR has distorted the legal system, “no one – from Honecker down to the lowliest border guards  – should be able to excuse or justify manifestly criminal behavior by claiming that they were operating within the law of the land (p.57).”
Claiming that all those who had been involved in the GDR should be held accountable became a more debated topic during the post-unification years. During the transitional period, is it appropriate for a new government to punish those responsible for reprehensible actions that might have been lawful under the old regime?

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