German intellectual, wife test legal limits of Germany's postwar pacifism

June 13, 1994|By Dan Fesperman | Dan Fesperman,Berlin Bureau of The Sun

BERLIN -- When two U.S. Army deserters came to Walter and Inge Jens' doorstep on the eve of the Persian Gulf war in early 1991, Mr. Jens felt that as a pacifist and a German he had no choice but to help them hide.

"This is due to autobiographical reasons, World War II and all that," he says.

His wife then mentions a novel about a German couple who hid a deserting soldier in World War II, and says, "We have often talked about the parallels -- hiding soldiers then and today. I think the decision for desertion is one of conscience. So when they stand in front of my house in need of help, it's none of my business what their reasons are. I have to accept their decision."

But German authorities have not accepted the Jenses' decision, and today the couple is to go on trial for helping hide the two Americans.

The case will test the legal limits of German pacifism, which has become a respectable movement since World War II. In a country where some interpret the constitution as forbidding the army from fighting on foreign soil, should citizens be put in jail for hiding another country's deserters?

Prosecutors tried to avoid a trial, offering the couple the option of paying $9,000 in charitable donations. But Mr. Jens, a prominent writer and intellectual, would have none of that: "We did not want to do that because we don't feel guilty."

So, the prosecutors proceeded, although the potential for unflattering publicity hasn't made them enthusiastic.

For one thing, the gulf war was unpopular in Germany. The majority opposed it, and thousands marched in protest against it.

And, coming on the heels of a D-Day commemoration led by an American president who himself avoided serving in an unpopular war, the trial is likely to strike a chord of sympathy among Germans on behalf of Mr. and Mrs. Jens.

The legal basis of the case gives it an ironic backdrop. The Jenses have been charged on the basis of an obscure appendage to West German law in 1957, when, true to the spirit of the Cold War, lawmakers decided to outlaw harboring deserters from any of the Allied armies that occupied Germany. They tacked the provision onto a law regarding German deserters.

But in the time it has taken to bring charges against the Jenses and prepare the case for trial, American soldiers based in Berlin have begun heading home. Next month, the last American soldiers still based here will leave.

The Jenses' attorney, Wolfram Leyrer, has come up empty searching for any precedent to the case.

The Jenses were hardly alone in what they did.

A Frankfurt organization called the Military Counseling Network led the effort, fielding several hundred inquiries from U.S. soldiers during the war, and helping find "safe houses" for those who decided to desert or go absent without leave.

"About a hundred actually refused to do military service," saysRudi Friedrich, head of the group. "The major part of them [the soldiers] were accused and convicted in the United States after the war. They get sentences of up to five years, although most of them got a reduction to 1 1/2 years. Some are still hiding in Europe, but we don't know how many."

Mr. Jens tells how the deserters ended up on their doorstep.

"We have a little local 'peace group,' and this group had contacted the Military Counseling Network. They were looking for quite a few people willing to harbor soldiers, and they had found some but not enough. And when the question came up, who's going to do it, we said, we're going to do it."

One day shortly afterward, a man and a woman, Michael Bell and Tracey L. Robb, both from American units based in Ansbach, showed up on the Jenses' doorstep.

The Jenses admit to having been puzzled at first over why there would be deserters from the all-volunteer U.S. Army. "We asked them about that," Mrs. Jens says. "Mike said, 'I did not become a soldier in order to go and fight a war.' "

Within two weeks the war began.

"They couldn't believe it when they saw the first pictures on television," Mrs. Jens says. "Mike came upstairs to our room and cried, 'It's war; they're shooting!' Until the very end he couldn't believe it."

A few days later the young deserters left. They later turned themselves in, and the Jenses have since learned they each were sentenced to 18 months.

The Jenses also decided to turn themselves in, in a way. They went public after the soldiers left, announcing what they'd done to encourage others to do the same.

Afterward, "Many people called and asked if they could help," Mr. Jens says. But the announcement also caught the attention of people who disagreed.

"It started with a lawyer from Tuebingen," Mrs. Jens says. "He reported three professors [including Mr. Jens] to the authorities because he said they had appealed to the public for desertion. The charge against the other two was erased for some reason, and only Walter's remained."

Even then, Mr. Jens wasn't charged until November, nearly three years after their alleged crime.

Once he was charged, Mrs. Jens telephoned the prosecutors. "I said that I had been involved, too," she says. "I said that either none of us or both of us was going to be accused." The authorities opted for both.

Prosecutor Peter Sontag, of the lower district court in Tuebingen, will only comment briefly on the case. He says it took this long to bring charges and advance the case to trial because, "We tried to avoid the trial, for we think this is a minor case. Professor Jens, however, did not want to accept our offer to pay."

Mr. Leyrer will only hint broadly at what his defense strategy will be, but Mrs. Jens says, "Our lawyers will argue that according to German law it is OK to hide soldiers as long as they are not from the German army. Anyhow, I think, we did not not help these people to desert. We harbored them after they had already made up their minds to desert."

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