The “common design” theory of guilt, used by the Allies after WWII

When World War II came to an end in May 1945, the Allies were faced with the legal problem of how to punish the German war criminals.  At that time, there was no German law, nor any International law, that covered such crimes as the genocide of the Jews, nor the atrocities committed by the Germans in the concentration camps. New laws had to be made after the fact.

Col. Robert Jackson, the chief prosecutor of the Nuremberg IMT, said in his opening address: “Hence I am not disturbed by the lack of precedent for the inquiry we propose to conduct.”  He meant that he was not concerned about the creation of new laws, called ex post facto laws, which were used in the proceedings of the Nuremberg International Military Tribunal. Ex post facto laws were also used by the American Military Tribunal at Dachau, which prosecuted people who had been associated with the concentration camps that had been liberated by American soldiers.

The new law that was created, based on the concept of co-responsibility for the crimes that had been committed by others, was called “common design” or “common plan” by the Allies.

According to Robert E. Conot in his book Justice at Nuremberg, the idea of a “common design” was the brainchild of Lt. Col. Murray C. Bernays, a Lithuanian Jew who had emigrated with his family to America in 1900 at the age of six. Henry Morgenthau, Jr., a Jew who was the Secretary of the Treasury and one of President Franklin Roosevelt’s top advisers, 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.”

Under the “common plan” concept, organizations as well as individuals could be charged with war crimes and membership in an organization was enough to convict an individual of a war crime, whether or not that person committed any criminal acts himself.

For the American Military Tribunal proceedings at Dachau, the “common design” or “common plan” theory meant that individuals were guilty of crimes committed by others on the staff of a concentration camp even if they didn’t serve at the same time. It didn’t matter whether or not the crimes allegedly committed by others in a particular concentration camp had ever been proved in a court of law or by a military tribunal; staff members of that camp were presumed to be guilty of these crimes, and there was no defense against the new law of “common design.”

This new concept of collective guilt was formulated by the Allies in order to see that justice was done. The legal basis for the proceedings of the American Military Tribunal at Dachau was that the German war criminals had participated in a “common design” to commit war crimes. The prosecution had only to prove that the accused had participated in a common plan by virtue of his position on the staff of a concentration camp, whether or not he had personally committed any atrocities.

The accused in the “Dachau trials” were not charged with committing any specific crime, but rather with aiding and abetting the commission of crimes in the concentration camp system which was designated by the Allies to be a criminal enterprise.

The basis for the “common design” theory of guilt was Article II, paragraph 2 of Law Order No. 10, passed by the Allies, which stated as follows:

2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country.

Crimes against Humanity was another new concept which did not exist before the proceedings of the Nuremberg International Military Tribunal began. This new law, which was one of the four categories of crimes described by Allied Control Council Law No. 10, was enacted after the end of World War II. It covered brutalities, cruelties, tortures, atrocities and other inhumane acts, including the murder of six million Jews in the Nazi camps.

Some of the top-level war criminals at the Nuremberg IMT were charged with Crimes against Humanity, but this charge was not used in the proceedings against the staff members of the Dachau concentration camp who were tried by the American Military Tribunal at Dachau. Crimes against Humanity included crimes against anyone of any nationality.  The American Military Tribunal prosecuted only crimes against citizens of the Allied countries and the names of the prisoners who were killed in the Dachau gas chamber were unknown.

These quotes are from the Nuremberg Principles, which you can read in full here.

Principle I. Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.  […]
Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

The charges at the American Military Tribunal at Dachau were “Participating in a common design to Violate the Laws and Usages of War, according to the Geneva Convention of 1929 and the Hague Convention of 1907.”

The Soviet Union had not signed the Third Geneva Convention of 1929, which was the rules of warfare pertaining to Prisoners of War. The Soviet Union did not treat German POWs according to the rules of the convention, neither during nor after the war. Germany had signed the Geneva Convention and charges were brought against the German war criminals at Dachau for violations of this convention with respect to Soviet POWs who were Communist Commissars.

The Geneva Convention specifically stated that after a country had formally surrendered, it was a breach of the convention to once again take up arms. The Allied powers encouraged resistance movements in all the German-occupied countries. Captured resistance fighters were sent to concentration camps, rather than to a POW camp.

During the Dachau proceedings, concentration camp personnel were charged with crimes against the Laws and Usages of War, according to the Geneva Convention of 1929, for ill treatment of captured resistance fighters, even though the resistance fighters did not have the protection of the Geneva Convention and they had been incarcerated for a violation of the Geneva Convention themselves.

In March 1945, on the written order of General Dwight D. Eisenhower, captured German POWs were designated as Disarmed Enemy Forces so that they would not have to be treated according to the Geneva convention. There were 1.7 million German soldiers who surrendered to Eisenhower’s Army; their families claimed that they never returned home. They are presumed to have died in “Eisenhower’s death camps.”

It was not until 1948 that the newly-created United Nations announced a law against genocide. With no existing laws in place, the Allies had created new international laws.  Let’s hope that America will never lose a war and have to answer for crimes committed under laws that do not yet exist.