Thank you again for the reply! I agree with you - its an almost impossible situation to be in I really cannot condemn the guards who did shoot the civilians. However, thankfully, the question was not about the morality of what they did - I couldn’t have got my head around that! - but whether or not the law was “valid” law (ie the law of the state at that time, positive law even if unjust) or whether its inherent injustice rendered it invalid. Really there is no wrong answer - you just have to state the Positivist interpretation, then the Natural Law one and then side with one of them!
The GDR formally codified its regulations on the use of deadly force in March 1982, when the State Border Law mandated that firearms were to be used as the “maximum measure in the use of force” against individuals who “publicly attempt to break through the state border”. The GDR Border Law of 1982 allowed the use of deadly force in the case of felonies at the GDR border. Was this law “valid” law? Its debatable and thats the whole “Positivist vs Natural Law” debate.
The German court did condemn them for human rights violations, if I remember correctly. It stated that the law was so patently unjust that it could not be held as “valid” law since it so deeply conflicts with fundamental human rights treaties that the GDR had agreed too.
Chief Judge Theodor Seidel who sentenced the first East German border guard patrolling the Berlin Wall said, “The legal maxim ‘whoever flees will be shot to death’ deserves no obedience.”
The Court thus followed the “Natural Law” approach - the idea that there is a universal, objective higher, moral law of nature - as opposed to the positivist opinion - that there is no necessary connection between law and morals, that a law is valid if it is “posited” by Legal officials either simply through command and sanction (Austin) or through deriving its validity from a higher legal norm in a chain of validity stretching back to the Grundnorm (Kelsen). The Positivists might have viewed this law as “valid”, since morality for them is subjective and relative to different individuals, cultures or socities (Kelsen called it “relativistic democracy”) and according to them there are no universal human values. Law, according to Kelsen, is a “science” containing verifiable and falsifiable, objective “facts” (roughly). He argued that since morality and metaphysics were “subjective”, they had no connection to law or place in law. The Court did not follow this view. However Kelsen might have disputed the law’s validity since one of his “essentials” for validity was the doctrine of “efficacy”, that to be valid a law must be “efficient”, it must be obeyed by a significant number of people. Given that so many people were trying to escape over the border, and some of the guards deliberately mis-fired shots so as not to kill people, it could be argued from the positivist perspective that this law was not “efficient” and therefore “valid” since significant numbers of guards were not obeying it…
If one were to agree with Chief Judge Seidel, that they committed human rights violations, it does not mean that one cannot sympathise though with the perpetrators since they were in a very difficult decision. But their personal moral culpability is a different matter from the validity of the law itself!