IT is by no means certain that Erich Honecker, the former leader of the German Democratic Republic, will ever stand trial. He is old, ill, and at the moment, out of the reach of German authorities at a Soviet military hospital near Berlin.
But Mr. Honecker's three-man defense team is proceeding as if prosecutors will succeed in bringing him to court on grounds that he is responsible for shootings at the Berlin Wall.
``We're not defending Honecker on the basis that he wasn't responsible for what happened in the GDR,'' said Nicolas Becker, one of Honecker's attorneys, in an interview last week. ``We're saying that, according to laws which existed in the GDR at that time, these shootings were not illegal acts.''
Since 1961, when the Berlin Wall was built, 78 people died at the wall and 123 at the German-German border. An arrest warrant was issued on Nov. 30 for Honecker, charging him with manslaughter.
Berlin prosecutors have found two documents that lay the order to shoot at the German-German border directly in the hands of Honecker.
According to East German law passed by the Volkskammer in 1982, says Mr. Becker, crossing the border without permission was a criminal offense and firearms could be used to prevent this crime.
Berlin prosecutors want Honecker for shootings between 1983 and 1989 - after the Volkskammer had sanctioned border shooting and after the signing of international human rights agreements, Becker points out.
Since the legal norm is that suspects must be tried according to the law of the land that exists at the time of an alleged crime, Becker says the prosecution has no case, ``no matter how morally and politically despicable the shootings were.''
The prosecution, however, argues that East Germany was a signatory of the European Human Rights Convention and the United Nations Charter, and that the human rights obligations in these documents override national law, according to Jutta Burghart, a spokesperson for Berlin's justice department.
If it comes to a trial, the defense will be sure to introduce the historical and political context concerning the case, says Becker.
For instance, while Honecker was certainly responsible for the GDR, ``the GDR was not a completely sovereign country'' in that ``many decisions were taken at least in coordination with Moscow,'' says Becker.
He also says that, when the wall went up, ``the alternative to building the wall and the sanctions connected with the wall would not have been liberty for the East Germans, but some kind of military intervention ... like the Russians in Czechoslovakia, in Poland, or even in Afghanistan.''
And he points out that the freedom to leave one's country, while an important human right, ``is not the most important in the hierarchy of human rights.''
A country can limit this right, he says, adding that ``historically, it's a rather late human right.''
Finally, adds Becker, if the Germans are so eager to consider Honecker a murderer, ``why was he received in Bonn with a red carpet'' on his state visit in 1987?