Did East German border guards along the Berlin Wall act illegally? Comments on the decision of the German Federal Constitutional Court

The DDR's practice of firing upon ist own citizens is well-known. The question arises whether acts which were exempt from punishment in the DDR can be punished today in reunified Germany ? The West German Constitution expresses the notion that retroactive effect of penal laws is prohibited. However the German Courts, above all the Federal Constitutional Court (decision of 24/10/1996) have affirmed the criminal liability of East German border guards based on G. Radbruch's natural law doctrine. As a conclusion it becomes clear, that the illegality of acts of Berlin Wall guards can only be derived by following either the Federal Constitutional Court's natural law strategy or the strategy of a strict Statutory Positivism (Gesetzespositivismus); since it can be shown that official instructions and orders to shoot were not permissible beneath the level of constitutional provisions, normal statutes or regulations to justifly restrictions on the human dignity and integrity (in particular the right to life and liberty) of DDR citizens. Another possibility would have been to incorporate a retroactive provision into the Unification Treaty. Were one truly intent on punishing the border guards, it should have been done - as H.L.A. Hart wrote concerning another case - "pursuant to the introduction of a frankly retrospective law", in full awareness of what was being given up in order to attain the desired goal. This would have made clear that, to punish the border guards, one was compelled to choose between two evils: allowing them to go unpunished, or abandoning a vital principle of any state governed by the rule of law. For dealing with both the Nazi and the DDR past, it has proven unfortunate that this did not happen. It would have been better for the constitutional assembly to have shouldered this responsibility, instead of passing it on to the courts.