My fellow justices of the court, we find ourselves at a crossroads, advised to convict of murder a man whose prior government would have lauded, not punished, him for his actions. We must weigh the unjust loss of a human life against the injustice of convicting a man under an ex post facto law. Hans’ death is a terrible tragedy, but we must rule with respect to our system’s principles and reverse the lower court’s decision.
This man’s former superiors, both his commanding officers and his government, emphasized that, whatever happened, it was better to kill a man than let him escape across the border. The border guard’s government pardoned the use of deadly force against any man attempting to commit a felony within a border guard’s sight. Commanding officers instilled in their subordinates a special hatred of escapees. Border guards were taught that escapees were treasonous defectors running off to East Germany’s worst enemy to let out state secrets. Commanding officers even taught subordinates to regard escapees as dangerous people who would kill border guards. At the border, there were memorial rooms set up in honor of border guards killed by escapees. Given the environment, it is understandable that the border guard would choose to kill Hans.
It is important to note that the border guard shot Hans while performing his duties as a soldier in the army. The East German government gave this border guard a firearm to use should dangerous or combative situations arise. A government never gives its soldiers guns and then charges them with murder for killing enemy combatants. This border guard saw Hans as a traitor, a spy for West Germany, someone possibly dangerous – something along the lines of an enemy combatant. Shooting at Hans was not a murder but a necessary act of war. We cannot punish a man for performing the actions his country and government required and encouraged him to do. For example, if a guard prevented an escape, even if a killing resulted, the government rewarded that guard with cash rewards, medals and special leaves of absence.
There was some shame in killing a person, however. The government removed the offending guard’s name from the service record, and the guard did not wear army clothes or insignias to avoid societal ostracism. The government had a blanket media blackout on any escapee deaths along the border. In an almost Orwellian fashion, all evidence of killed escapees’ existences were expunged, their families told they had committed suicide.
Besides covering up the killings, the East German government also refused to prosecute guards who killed escapees, even in instances of excessive force. Though East German law permitted use of deadly force only when an escapee was joined by multiple perpetrators or tried to escape using “dangerous means,” it was an unwritten rule that guards should shoot and kill escapees rather than allow them to escape. This law descended from both commanding officers’ insistence on...