Good law preserve us from a Honecker show trial

AS THE Aeroflot plane containing Erich Honecker took off from Moscow, bringing him back to Germany for trial, the old Communist might have remembered the words of another German in a similar fix. The SS man Klaus Barbie, on a French aircraft flying him from Bolivia to face trial in France, was pestered by his captors to make a statement. But Barbie merely replied: 'Whoever won the war was right. Vae victis - so much the worse for the losers]'

This is really what the German authorities are up against. More important than all the problems of jurisdiction and evidence is the danger that this act will look like conqueror's law.

All totalitarian systems are cynical about motives, because they refuse to accept that there can be absolute moral standards. For the Nazi, history hands the sword of vengeance to the victor in the 'merciless fate-struggle' for survival, and it is good that it should be so. Adolf Hitler, in his last moments in the Bunker, bowed to the triumph of the 'Slavic' over the 'Germanic' race, as the Soviet artillery shook the earth and concrete over his head. They had shown their biological superiority, he wrote in his Testament, and they must conquer. Klaus Barbie's proverb meant just the same. The winner would always crush the loser: Orwell's vision of a boot stamping on a human face for all eternity. But, please (the Nazi survivors might continue), spare us this hypocritical rubbish about 'legality' and 'justice' . . .

Stalinism speaks with the same voice. All justice is class justice, except for that 'real' justice that history has granted only to the cause of working people and to their vanguard party. A court and judges who try politicians for 'defending the achievements of socialism' are simply dressing up bourgeois revenge in pious robes.

Many people, here and in Germany, assume that the trial of Erich Honecker and his five colleagues will be a show trial. Some, in fact, would very much like it to be a show trial. There is a desire to see the rulers of the German Democratic Republic get the same medicine they used to spoon out. But there is also a very much stronger, half- respectable hope that this hearing will serve as an enormous, public history seminar about the wickedness of Communism and the crimes committed in its name in East Germany.

The Honecker trial must not become a show trial. And I do not think it will. Classic examples are the Moscow trials of the 1930s, the Volksgerichsthof proceedings against the anti-Hitler plotters in 1944, or the Slansky trials in Czechoslovakia in the early 1950s. The conditions for that sort of insanity are simply not present. Then comes the post-war Nuremberg Tribunal: scrupulous in most of its proceedings, but conducted by the conquerors against the conquered under laws invented specially for the occasion. There are big differences in the Honecker case, but a few perilous similarities as well.

Lastly, there is the Barbie trial in Lyons in 1987. This had two elements of a show trial. First, some of the charges were invented for the occasion ('crimes against humanity' did not exist in French law when the first indictments were made). Second, the defence lawyer, the great Maitre Jacques Verges, did not bother to pick holes in the prosecution evidence, but instead declared that the French state itself was on trial for even worse atrocities committed in its colonies. Perhaps Barbie had no chance anyway. He certainly lost all chance of acquittal then.

But the danger in Berlin is not that the trial will be a political charade. Quite the opposite. The danger is that all decent, common-sense examination of where the buck stops in a modern dictatorship will vanish in a buzzing swarm of legal pedantries. German justice is highly pedantic, which is usually its virtue. English trials, with their narrow definition of what is relevant evidence, seem shockingly crude and hasty to German lawyers. In German courts, almost any hearsay or background material is evidence, and a good case can last years. But this time, pedantry and juristic nit-picking could bury the real issues so deep that nobody will respect the verdict when it emerges.

Yet it is right to try Erich Honecker. Ordinary frontier guards are going to prison for shooting at East Germans trying to escape. It would be insufferable to grant immunity to those who may have given the orders to shoot.

So Erich Honecker, Erich Mielke, Willi Stoph, Heinz Kessler, Fritz Streletz and Hans Albrecht will stand trial for 'multiple joint manslaughter' and 'multiple joint attempted manslaughter' by bullet, mine or booby-trap. (Mielke, 85, is also charged with murdering two policemen in 1931, which seems irrelevant at the distance of three regimes and a world war). All took part in a meeting of the National Defence Council on 3 May 1974, where Honecker is supposed to have said: 'In the case of attempts to break through the frontiers, there must continue to be ruthless use of firearms, and comrades who have successfully used their weapons are to be congratulated.'

Supposed to have said . . . but the official minutes of the session do not contain these words, which come from a memorandum written by Fritz Streletz for his boss, General Hoffmann, the army commander. Equally problematic is the matter of the order's legality. Most of these shootings took place on East German territory, and (in an attempt to be scrupulously fair) these offences are to be tried under the East German laws in force at the time. Until 1968, these laws guaranteed the right of free emigration (only on paper, of course). But they also permitted frontier guards in certain cases to open fire.

Now, it is an inconvenient and therefore forgotten fact that, 30 or 40 years ago, most European countries allowed their frontier guards to fire at persons who defied a challenge to halt. There is a 1966 UN convention permitting people to leave their countries freely, but it was never adopted into East German law. Fallen leaders are being tried all over eastern Europe, but nowhere - except in Germany - for allowing frontier guards to open fire, although hundreds and perhaps thousands of people died on the barbed wire of other Communist states. The reason for this difference is that Germans regard the partition of Germany as unnatural and wrong. But, then, why are they using East German law - the laws of a state that should not have existed - to try Erich Honecker?

If he is accused of complicity in killing, by organising the building of the Berlin Wall, I think Honecker will blame the Soviet Union. That would shift the whole search for responsibility on to the escalator of history, up which it would vanish. The trouble is that all states are, to some extent, founded on coercion. The killings on the Wall and the wire were evil and horrible, but it will be hard - without debauching the law - to redefine them as acts of manslaughter for which politicians were responsible.

This is painful to accept, but I am afraid it is true. It so happens that Honecker is also being accused in another, lowlier court of misusing state property in order to build Party villas. And that will be a lot easier to prove.