Before that date, approximately 2.7 million East Germans (including 811 judges and lawyers and 752 University lecturers) had left East Germany to live in the West. After reunification on 3 October 1990, the German authorities decided that not only those who gave the orders to shoot, but also those who carried out those orders should be prosecuted under German domestic law.Generally the prosecutions were for manslaughter (or, in the case of those who ordered the killings rather than carried them out, acting as an accessory to manslaughter), as murder is reserved in Germany for a miscellaneous selection of the worst cases of intentional killing; most intentional killings under German criminal law are manslaughter only.
It is tolerably clear that Anglo-Australian constitutional law will not stand a wholesale importation of continental European doctrines, and this article does not advocate the contrary.
But Australia should keep an open mind about the possible lessons to be learnt from other Western democracies and should not attempt to be a uniquely Australian constitutional island.
These topics, the reasoning of the German courts and the reactions of scholars can, for reasons of space, only be summarised here.
But they are more than worthy of the attention of the Australian legal community as it continues to grapple with the question of whether Australian law does truly contain a prohibition of retrospective criminal laws.
This is not an article about international law or Australia’s obligations to the international community, nor about the extent to which acts can constitute crimes under international law and who has jurisdiction to try them.