BERLIN -- A 26-year-old former East German border guard at the Berlin Wall became yesterday the first person sentenced to prison for carrying out the orders of his government by killing a man trying to escape to the West.
Chief Judge Theodor Seidel called on the principle of the Nuremberg war crimes tribunal after World War II in sentencing Ingo Heinrich to 3 1/2 years in jail for shooting Chris Gueffroy and his companion, Christian Gaudian, who were trying to flee to West Berlin in 1989.
"There is a central area of justice which no law can encroach upon," the judge said. "The legal maxim 'whoever flees will be shot to death' deserves no obedience."
The Nuremberg trials created a precedent that people who commit crimes on government orders are also personally liable for them. But the Nuremberg trials were limited to war crimes, and there has been some debate over how applicable its rulings should be to peacetime Communist East Germany.
Many Germans criticized the border guard trial as singling out four young soldiers when former East German leader Erich Honecker and other top-ranking Communists remain free. Mr. Honecker, 79, has been charged in four deaths, but has taken refuge in the Chilean Embassy in Moscow.
Even the prosecution had only asked for suspended sentences.
Although the other three guards also shot at or wounded the two East Germans trying to escape, Judge Seidel ruled that they had not been so "brutal" in carrying out the East German shoot-to-kill policy.
Mr. Gueffroy, who died Feb. 5, 1989, was the last person killed while attempting to escape East Germany. Nine months later, anti-Communist protesters breached the Berlin Wall. East and West Germany were reunited in October 1990.
Berlin Justice Minister Jutta Limbach said the trial will not be the last one. Because Germany has no statute of limitations for murder, all 200 killings along the border between East and West Germany could result in trials, with up to 1,000 people being charged.
Capping the divisive four-month trial with a two-hour explanation of his decision, Judge Seidel said that he was not trying to tackle the general issue of whether a country had the right to issue a shoot-to-kill order, but considered only whether by East German standards it was necessary to kill people who only wanted to cross the border.
Witnesses testified that Heinrich, 26, shot Mr. Gueffroy with a burst from his submachine gun aimed at the upper chest. Mr. Gaudian, who was wounded, testified earlier that he and Mr. Gueffroy had given themselves up and were standing 40 yards away from the soldiers with their hands raised.
Andreas Kuehnpast, 25, was given a suspended two-year sentence for wounding Mr. Gueffroy in the leg with an unnecessarily long blastfrom his gun. Peter Schmett, 27, and Mike Schmidt, 26, were acquitted because they had fired warning shots wide of the two men.
More than 600 of the 900 residents of Mr. Schmett's hometown of Drachhausen recently signed a petition calling on the government to drop the charges. Local people said Mr. Schmett could not have been expected to question the laws of a country that was internationally recognized.
"It was unfair that he was sitting in court while Honecker sits in a Russian dacha. I'm glad that the judge let him off," Drachhausen Mayor Willi Lehman said.
Mr. Honecker was spirited off to Moscow by Soviet officials, and attempts to bring him back to stand trial for the shoot-to-kill order have become bogged down in Russian politics.
Mr. Schmett said he was relieved to be free and would go back to Drachhausen to work as an electrician.
"But I'll still carry this and the sight of Chris Gueffroy's death with me for the rest of my life," he said.
Mr. Gueffroy's mother, Karin, said she "could live with" the decision. Critical that the state prosecution only asked for suspended sentences, she said Judge Seidel had been right in sentencing Heinrich to jail. "Otherwise, where would the justice have been?"
Heinrich said he may appeal.