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May 12, 2011

Demjanjuk convicted under the “common design” theory of guilt

Filed under: Germany, Holocaust — Tags: , , — furtherglory @ 7:12 am

I read the news of John Demjanjuk’s conviction in the New York Times here.  The most important thing about his conviction is summed up in this statement:

In the absence of specific evidence against him, the case against Mr. Demjanjuk rested on the prosecution’s charge that anyone working at the camp at the time he was there shared responsibility for its function of systematic murder.

In other words, the legal basis for charging Demjanjuk with a crime was the ex-post-facto law that was dreamed up by Lt. Col. Murray C. Bernays specifically for the Nuremberg IMT, although it was also used by the American Military Tribunal at Dachau.  This is the first time that this legal basis has been used in German courts, thus setting a precedent that can be used in future trials.

Bernays was a Lithuanian Jew who had emigrated with his family to America in 1900 when he was six years old.  Robert E. Conot wrote, in his book “Justice at Nuremberg,” that Henry Morgenthau, Jr., a Jew who was the Secretary of the Treasury and one of President Franklin Roosevelt’s top advisors, had proposed that the German war criminals should be charged and then executed without a trial. But Bernays said, “Not to try these beasts would be to miss the educational and therapeutic opportunity of our generation. They must be tried not alone for their specific aims, but for the bestiality from which these crimes sprang.”

Now 66 years after the end of World War II, Demjanjuk has been tried and convicted on the theory that he is guilty because he was allegedly THERE.  It doesn’t matter if he actually did anything wrong, he is guilty by association.  

This quote is from the Times news article:

The case against Mr. Demjanjuk involved some 15 transport trains known to have arrived between April and July 1943 from the Westerbork concentration camp in the Netherlands, carrying 29,579 people. Prosecutors initially charged Mr. Demjanjuk with 27,900 counts based on the theory that some must have died in transit or been spared for a time to work at the camp. By the end of the trial on Thursday, that figure had been revised to 28,060 counts.

In other words, it is not known how many people died at Sobibor, or even IF THEY DIED, but based on the fact that 15 trains from the Westerbork transit camp ARRIVED at Sobibor, Demjanjuk is guilty of being an accessory to their alleged murder.

The New York Times reporter wrote that “Some 250,000 Jews were killed at Sobibor, most of them poisoned with exhaust fumes.”

“SOME 250,000?”  So the exact number is unknown?  Why is the exact number of deaths unknown? Where is the proof that anyone was murdered at Sobibor?  Unfortunately, Demjanjuk’s lawyer could not bring this up because if he had, he would have been tried and convicted just like Sylvia Stolz, the attorney who foolishly tried to defend a Holocaust denier in a German court.

Here is another important quote from the New York Times:

Avner Shalev, the head of the Yad Vashem Holocaust remembrance authority in Jerusalem said that […]  the conviction of Mr. Demjanjuk showed that theere (sic) was “no statute of limitations on the crimes of the Holocaust” and that the killings “could not have taken place without the participation of myriads of Europeans on many levels.”

So “myriads of Europeans on many levels” participated in the “crimes of the Holocaust” and with “no statute of limitations,” we can look forward to a 100-year-old man in a coma being hauled into court and convicted of allegedly being a guard in a concentration camp.

Update, 12:40 p.m.

A friend just sent me a link to an excellent article on another blog, which explains everything better than I can.  You can read it here.  The article is quite long, but scroll down to the most important part which I have quoted below:

– There exists no documentary or material evidence supporting the claim that Sobibór functioned as a “pure extermination camp”; preserved documents in fact describe the camp as a “transit camp” (Duchgangslager)
– There is ample reason to believe that the 27,900 alleged victims were in fact sent on to the German-occupied territories of the Soviet Union and the Baltic states.
Needless to say such facts does not matter one bit to the enlightened judges and prosecutors of the “freest state in German history”. The defense, undoubtedly aware that any mention of said facts would run afoul of Germany’s laws against “Holocaust denial”, settled on the usual strategy: accepting the officially sanctioned version of events while insisting on the personal innocence of the defendant.


  1. Two points. 1 If it’s a crime under German law to minimise the sufferings of Holocaust victims surely there must be some official approved account of history set out in detail so that everyone knows where they stand. This would need to be quite detailed, not simply that the total kiiled is x, but y killed here and z killed there, otherwise someone could say that theese people weren’t killed at Sobibnor but must have been killed somewhere else. Is there an approved version set out anywhere?
    2 If we extend the principle under which Demjanjuk was convicted would it take in Sonderkommandos? (There may of course not be any surviving Sonderkommandos so this may be academic)

    Comment by Ethelred — May 14, 2011 @ 4:50 am

    • I don’t know of any “official approved account of history” of the Holocaust that could be used in a court of law. The train records, for the transports to the camps, which were kept on IBM Hollerith punch cards, have never been found. The Nazis didn’t keep death records for the prisoners who were allegedly gassed. Prisoners who were sent to camps such as Dachau or Auschwitz, and then transferred to another camp, after being showered, shaved and disinfected, were not registered in the first camp, so they were presumed dead, although they were survivors of the second camp. Prisoners who were transferred more than one time, such as Victor Frankl, are counted as gassed each time they were transferred. You can read about the variations in the numbers of Hungarian Jews that were allegedly gassed on this page of my web site:

      I have read of at least one non-Jew and one woman, who claimed to have worked as Sonderkommandos, but most of these men were Jewish. Besides that, the Sonderkommandos didn’t aid in the killing, they only disposed of the dead bodies. There were Kapos who were put on trial at Dachau and convicted under the “common design” law, but these were all non-Jewish Kapos. There were Jewish, and even Gypsy, Kapos at Auschwitz, but as far as I know, none of them were ever put on trial. The staff at Auschwitz and Majdanek were not put on trial at the American Military Tribunal unless they had also worked in a camp in Germany. The other staff members at Auschwitz and Majdanek were turned over to Poland for trial. There was also the famous “Auschwitz Trial” in Germany, but this trial was under German law. No two books about the Holocaust agree on the numbers and the details of the Holocaust. Even the US Holocaust Memorial Museum and Yad Vashem don’t agree on the history of the Holocaust, so there has been no attempt to write an official history that could be used in court, as far as I know.

      Comment by furtherglory — May 14, 2011 @ 8:01 am

      • The Sonderkommandos aided the killing by clearing out and cleaning the gas chambers so that more people could be gassed. If this principle were consistently applied any living person claiming to have been a Sonderkommando should face prosecution. Let a court decide on the degrees of assistance and compulsion.

        Comment by Ethelred — May 15, 2011 @ 2:15 am

        • If a Sonderkommando were ever put on trial as a war criminal, he would use the defense that he was clearing out the morgue, not the gas chamber, so he was not helping with the gassing of the prisoners. The Sonderkommando prisoners, who might still be alive, were working at Auschwitz II, the Birkenau camp. Both Rudolf Hoess and Filip Müeller said that there were THREE rooms in the gas chambers at Birkenau: the undressing room, the gas chamber and a third room. Read my post about the woman who shot an SS man at Birkenau:

          On that post, I wrote: “According to Müeller, there were three underground rooms in the Krema II gas chamber building: an undressing room, a gas chamber and a morgue. The shooting of Josef Schillinger took place in the undressing room and it happened after dark, when Müeller was on night duty at Krema II.”

          Also on that post, I wrote: “Höss mentioned the dressing room, the gas chamber and “another room of the crematorium” which must be the morgue which Müeller described.”

          The gas chamber building in the Auschwitz main camp does not have a morgue because the room that was previously used as a morgue was converted into a gas chamber. I don’t think any Sonderkommando from this camp is still alive. Dachau had a morgue room that was separate from the gas chamber.

          What I am trying to say is that the morgue did not have to be cleared out before the next gassing began, at least in most of the gas chamber buildings.

          Comment by furtherglory — May 15, 2011 @ 8:02 am

        • The Sonderdommandos all said that they cleared the bodies out very soon after a gassing was completed. They could not have been clearing out a gas chamber so soon because when Zyklon-B was used, it required 20 hours to clear the gas fumes out of the room. Someone else had to first move the bodies from the gas chamber to the morgue where the Sonderkommandos worked. The Sonderkommandos said they were smoking and even eating when they carried out the bodies. This could not have been done in a gas chamber immediately after a gassing. All of this testimony would be used in the defense of a Sonderkommando, if he were ever put on trial.

          Comment by furtherglory — May 15, 2011 @ 9:30 am

    • It is more the general attitude of the defendant that will be judged, and truth is no defense in a German court. If a defendant tries to prove that their claims are true, that is interpreted as defiance, and he can be said to be denigrating the memory of the dead, to instigate racial hatred, to disturb the dignity of the victims, or to endanger the young.

      All these accusations are in the eye of the beholder, or rather, the judge, so if he doesn’t like your attitude, you can go to prison for up to 12 years.

      The judge does not need an official account of history as there is the principle of “Offenkundigkeit” (obviousness) meaning that obvious facts that are well known by everybody do not need to be proven. Everybody knows that 6 million Jews were gassed, so this is a fact.

      Comment by Rachel Bartlett — May 14, 2011 @ 4:56 pm

      • You seem to be writing about trials in which “Holocaust deniers” are prosecuted. A “war criminal” would not be tried under the same laws as a denier.

        In the Demjanjuk trial, the judge based his verdict on the principle of “common design” rather than the German law. This has set a precedent for the German courts.

        I think that the defense in the Demjanjuk case could base an appeal on the fact that “common design” is not part of German law so the judge’s decision is not valid.

        Comment by furtherglory — May 14, 2011 @ 6:12 pm

      • I am making a separate post on the recent Denis Avey thread about this because I suspect this principle means that Germans are afraid even to question stories such as Avey’s in print.

        Comment by Ethelred — May 15, 2011 @ 2:18 am

  2. Dear Herb,
    A small clarification. Demjanjuk could not be a member of Vlasov’s “ROA” (Russian Liberation Army) since he was an Ukrainian. There is a very thin line between Russians and Ukrainians, based mainly on the regions. But, in this case, it appears that Demjanjuk claimed to be legitimate Ukrainian. He was not member of SS, that’s for sure. Otherwise, he could join the 14th Waffen Grenadier Division of the SS (1st Ukrainian) “Galizien”.
    His “attendance” of Trawniki training camp appears to be a bogus. This is why:
    During the appeal, the authenticity of the identity card was questioned when it was revealed that the card’s number, 1393, had been issued in June/July 1942 with the seal of SS Commissioner, Odilo Globocnik, who had in fact been dismissed from this post in March 1942 at which time his seal was destroyed. The three identity cards supplied by the KGB that the experts had used to compare their paper and ink with Demjanjuk’s card to prove its authenticity were also disputed. Among other issues such as graphic inconsistencies, the cards, all dated 1942, carried Waffen SS stamps despite them not taking control of the Trawniki until 1943. Two bore the signature of Corporal Teufel when he was at that time a Sergeant while the other card, which had been issued earlier in the year when Teufel was still a Corporal, had his rank listed as Sergeant. The cards were also signed by Captain Hermann Hoefle, who was actually a Major. The court ruled on this claim: the record before us lends no support to this very serious charge, and we reject it. Witnesses fully qualified to testify on the subject stated their opinions that the Trawniki documents were authentic. Even if this documentary evidence had been rejected, the eyewitness evidence alone was found sufficient. Since the district court did not rely on the “Trawniki card”, its validity is not before the court.”
    Hope, You are doing well.
    Best regards,

    Comment by Gasan — May 13, 2011 @ 9:12 pm

    • Globo was not dismissed in March 1942 but transferred to Istria in late 1943. Demjanjuk’s card was not signed by Hoefle, don’t know about the others. Globo’s seal does not appear on the Demjanjuk’s card.
      I don’t know if the Waffen SS were in charge of Trawniki or not, but since most of your other claims are suspect, I presume this one is too.

      The best online investigation on the card is

      Comment by littlegreyrabbit — May 14, 2011 @ 2:47 am

    • On reflection I think you might have a point about the Waffen SS stamps. The camp as far as I can understand was under the control of SSPF Lublin and totally separate from the Waffen-SS – I am very ignorant of Nazi terminology and organisation structures.

      However I think a more like stamp would be “SSPF Lublin/ Trawniki Training Camp” or else SS-WVHA/ SS Training Camp Trawniki

      Comment by littlegreyrabbit — May 17, 2011 @ 5:22 am

  3. At the trial in Israel, Demjanjuk had two Israeli defenders. This is what happened to them.

    Demjanjuk Attorney Leaps to Death Week Before Appeal Trial
    November 29, 1988 | Associated Press
    A lawyer for convicted Nazi war criminal John (Ivan the Terrible) Demjanjuk leaped to his death today from the 15th story of an office tower, police said. The death of 53-year-old Dov Eitan came less than a week before Israel’s Supreme Court was to hear Demjanjuk’s appeal of his conviction and death sentence for Nazi war crimes. Eitan died at 8:30 a.m. after hurling himself from an upper floor of the City Towers office complex in downtown Jerusalem, p
    Holocaust Survivor Throws Acid at War Crimes Lawyer
    December 1, 1988 | Associated Press
    A Holocaust survivor threw acid in the face of an Israeli defense attorney for convicted Nazi war criminal John Demjanjuk today, officials said, during a funeral for another Demjanjuk lawyer who died in what police called suicide. The attack on attorney Yoram Sheftel injured one of his eyes, police and a hospital spokesman said. A woman standing nearby also was hurt, police said.
    olice spokesman Rafi Levy said.

    No comments are necessary.

    Comment by Gasan — May 13, 2011 @ 7:59 pm

  4. There is considerable amount of sympathy within Germany as to the proceedings of Demjanjuk’s trial as a precedent was set for the first time in German jurisprudence, based on new laws after the IMT at Nürnberg and subsequent Trials at Dachau, which to my understanding are now enshrined within the Hague Convention to try war criminals. The United States does not recognize these laws for it’s own citizens. It made it possible however that Demjanjuk was stripped twice of his US citizenship to have him extradited to Munich after the cabal pressure groups like the Zentralrat der Juden in Deutschland (the Central committee of Jews in Germany) to keep the “Holocaust Gravy-Train” in motion, appreciated the trial, stressing the symbolic significance. “All NS (National Socialist) be held accountable for their inhuman deeds.”

    Professor of Law, Christian F. Rüter an expert on NS trials in Germany who has researched the subject for forty years had reservations against the commencement of the proceedings. He stated that to him “it is a complete mystery, how anyone who knows German jurisdiction up to now, would be able to assume that Demjanjuk could be sentenced based on the given evidence.
    He was given five years as w all know, but is free until his Appeal will take place and is able to stay in Munich, where he has lived before. It is interesting to note that on April 12, 2011 a 1985 FBI report that had been marked secret for the previous 25 years was declassified and found by reporters of the Associated Press in the National Archives. It brought to light a judgment that the Nazi ID card that had been provided by a Soviet source to the US was “quite likely fabricated” evidence.
    I am not sure if Demjanjuk was part of the Vlasov contingent or a member of the SS, if the latter was the case, he would have to go through a thorough screening test before being accepted and had to have certain “qualities” prior to joining as a “Freiwilliger” (Volunteer)
    As a final note: For most Germans during the Nürnberg and Dachau War Crimes with predetermined outcomes is, until this day considered to be the judgment of the Victors over the Vanquished, you may not hear much about the subject, but just scratch under the surface and you will see!!!

    Comment by Herbert Stolpmann — May 13, 2011 @ 6:52 pm

  5. I am torn between crying out in frustration over the lack of common sense and morality that has been demonstrated in this case again and again and again for *decades* now, and wanting to sink into the ground with shame over what Germany has been doing to this man for the last 70 years.

    Just my personal opinion — Germany has been persecuting John Demjanjuk without mercy to make up for the loss of face Israel suffered when they had to release him from death row in 1988.

    Comment by Rachel Bartlett — May 13, 2011 @ 2:50 am

  6. I am commenting on my own post because it has come to my attention that some young people, including some members of my own family, do not understand what I wrote. So let me explain it as simply as I can:

    When Demjanjuk was allegedly a guard at Sobibor, it was NOT a crime under German law to work at a concentration camp. After World War II, new laws were made up by the Allies in order to try the Germans as war criminals. One of these new laws was “participating in a common design to commit crimes against humanity or to commit violations of the Geneva Convention and the Hague Convention.”

    Now a German court has, for the first time, tried and convicted someone for the crime of working in a concentration camp. The only precedent for this crime is the proceedings of the American Military Tribunal at Dachau where staff members of the concentration camps in Germany were tried and convicted on a charge of “participating in a common design.” Under this charge, it was not necessary to prove that a staff member had committed any specific atrocity; it was only necessary to prove that the accused person had been a member of the staff of the concentration camp. Under this concept, it was ASSUMED that the accused had worked voluntarily in the camp because he could have refused to work in a concentration camp and nothing would have happened to him.

    According to the charges against Demjanjuk, he was a volunteer at the Sobibor camp because he could have refused to be a guard and nothing would have happened to him. During World War II, Demjanjuk was a soldier in the Soviet Army because Ukraine was part of the Soviet Union at that time. He was captured by the Germans and was a POW. He was given the chance to defect and work for the Germans. If he was, in fact, a guard at Sobibor or any other camp, he might have thought that he would be killed if he didn’t accept the offer to work at a concentration camp, so he “volunteered.”

    So if it was not against German law for a person to work at a Nazi concentration camp when Demjanjuk was allegedly at Sobibor, how can a German court charge Demjanjuk with a crime and convict him for simply being at Sobibor? I don’t know. Maybe they can’t legally do this.

    Comment by furtherglory — May 12, 2011 @ 9:43 pm

    • Further Glory,

      You make perfect sense about this, but most people get too emotional about it in Demjanjuk’s favor.

      It’s clear to me, from what we know about the politics of the time in question, that Demjanjuk did volunteer to “go over to the German side because he never liked the Soviet Union or the communists. Neither did most Ukrainians. But because of this “new law” you speak of (that didn’t exist at the time and has never been applied to anyone else, except when it was convenient for the Allies, especially the Americans), Demjanjuk’s only defense was to say the Germans “forced him” to become a guard.

      Truth is they didn’t “force” foreigners into such positions because they wanted loyal, trustworthy people. Why would they entrust such a position to those who saw them as their enemy? The would not!! But this kind of nonsensical behavior is attributed to the National Socialists all the time. So people accept it.

      What bugs me about the Demjanjuk case is that he’s attacking the Germans, not denying the “extermination” going on at Sorbibor (which has NEVER been proved with any kind of evidence), but only saying he was not there. That is fine, because maybe he wasn’t, but he also bitterly attacks the Germans for treating him so badly then, and again now. But today’s Germans are on the exact opposite political side as were the Nat. Soc.’s.

      This man is making out that the Germans have destroyed his life. Oh, boo hoo. It is the Jews and the Allied governments who have done it, not the Germans … really. The U.S. was quite eager to extradite him both times, at the behest of the Jewish OSI, which it funds. The admittedly awful Fed. Rep. of Germany is forced to prosecute these cases by the agreements forced on it by the occupying powers after Germany’s UNCONDITIONAL surrender. It’s true they find the worst type of Germans to take these particular prosecutorial positions. Carrying out these trials makes the Germans look, all over again, like an evil bunch of creeps. Just what they want.

      Anyway, I don’t have much respect, and therefore much sympathy, with anyone involved in this fiasco.

      Comment by Skeptic — May 13, 2011 @ 6:08 pm

      • Sceptic,
        I hope you don’t mind, if I will respond to you on this one with a quote from Demjanjuk’s Israeli lawyer:
        “What bugs me about the Demjanjuk case is that he’s attacking the Germans, not denying the “extermination” going on at Sobibor (which has NEVER been proved with any kind of evidence), but only saying he was not there.”
        Yoram Shiftel:
        “A: I think the secret is that he is a very limited person, not a great intellectual. And, therefore, and only because of it, he was able to stand the pressure. I, who am considered by many people a strong character, would immediately lose my sanity if I was accused of such crimes knowing, of course, all along that I had nothing to do with it. I don’t think I’d be able to retain my sanity for a long time.”

        I also, don’t think he is in position to fight the holocaust narratives. Plus, his brave German attorney is trying to get him acquitted of all charges. I hope, he wins the appeal. But, should Demjanjuk deny “holocaust” story at Sobibor, he would get German special: mandatory five years of free “bed & breakfast”. I think his lawyers have suggested him to keep his mouth shut on that issue. In any case, this is the trial of a single person and the lawyers are doing the best. We all need this small victory.
        I honestly understand your frustration. But, this is the world we all live in.

        Comment by Gasan — May 13, 2011 @ 8:43 pm

      • I believe Demjanjuk when he says he did not work at Sobibor. He also said that he was not at Treblinka and it turned out that he was not there. I think Demjanjuk is the kind of person who would admit it if he was actually at Sobibor, and then he would offer some other defense. Now his defense is that he was not there and the ID card is fake. I believe this defense and I think he will be acquitted on appeal, if he doesn’t die before the appeal is complete.

        Comment by furtherglory — May 14, 2011 @ 9:50 am

  7. There is no evidence Demjanjuk committed a specific crime. Instead he was charged with 28,060 counts of being an accessory to murder for the number of people who died in the time span he was allegedly a camp guard at Sobibor.
    The theory was that if he was there, he was a participant – the FIRST TIME such legal argument has been made in German courts. The court sentenced him to five years in prison. It was not immediately clear how much credit he would get for the time already served, he has been behind bars for seven years.
    He was convicted and sentenced to death, then freed when an Israeli court overturned the ruling, saying he was the victim of mistaken identity

    Comment by Herbert Stolpmann — May 12, 2011 @ 6:20 pm

  8. Lt. Col Murray C. Bernays was the brother-in-law of
    Edward Bernays who is considered the world’s first “spin doctor.” Murray Bernays’ given name was Cohen, but he changed it to Bernays when he married Edward’s sister who was the niece of Sigmund Freud. Besides being the head of the premiere advertising agency in America Edward Bernays was Freud’s agent, publicist and banker in the US. He was well versed in Freudian theory which he applied successfully to mass marketing and mass
    persuasion techniques. Edward Bernays was also involved in covert operations (rigging elections) in Central America for the the US Government and the United Fruit Company.
    I’d like to know what Murray Bernays did after Nuremberg. I’ve looked, but have found nothing about his post war career.
    For anyone interested in the history of the Office of Special Investigations of the U.S. Justice Department I can’t recommend the book RELIGION AND POLITICS: Bishop Valerian Trifa and His Times, Gerald J. Bobango , East European Monographs, 1981 highly enough. It hard to find now, but it used to be available at a very nominal price from The Romanian Orthodox Episcopate in America, Grass Lake, MI.
    The OSI operates with impunity at taxpayers expense keeping the horrors of the Holocaust in the public mind with the drawn out investigations and civil cases it brings against East European immigrant nonentities like John Demjanjuk. It’s a cash cow for the Jewish bureaucrats who run the agency and the media moguls who spill rivers of ink publicizing its expensive and totally self-serving work.

    Comment by who+dares+wings — May 12, 2011 @ 8:52 am

  9. The legal basis for tyhe conviction is not new.

    “The answer lies in a powerful legal doctrine known as “joint enterprise”.

    In short, it enables entire groups of people to be prosecuted for murder even though they may have played very different roles in a killing.

    Joint enterprise is not new – it has been around for centuries.”

    Comment by Ethelred — May 12, 2011 @ 8:13 am

    • I don’t think that this legal basis was used in the case of Demjanjuk. He was tried in a German court, under German law. Do they have this law in Germany? Demjanjuk was tried as an accessory to murder because he allegedly worked at a “death camp.” The prosecution did not have to prove that he was actually an accessory because it was assumed that anyone who worked at a “death camp” was complicit in murder. The prosecution did not have to prove that anyone was deliberately killed at Sobibor, nor that Demjanjuk had anything to do with the deliberate killing of prisoners. The prosecution only had to prove that Demjanjuk was at Sobibor. They proved this with an identification card which the defense believes is fake. If he lives long enough, his conviction might be overturned on appeal. His conviction in Israel was overturned when the defense proved that Demjanjuk was not at Treblinka.

      Comment by furtherglory — May 12, 2011 @ 11:36 am

      • I quoted this in relation to your comment the legal basis was ‘that dreamed up by Lt. Col. Murray C. Bernays specifically for the Nuremberg IMT’. As U.S. law presumably derives from English law the origins of the legal basis may go back a lot further.

        Comment by Ethelred — May 12, 2011 @ 4:16 pm

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