Johann Breyer was complicit in the murder of 216,000 Jews in the gas chamber at Auschwitz — Updated

John Breyer, at the age of 17, when he was in the German army

Update July 23, 2014:  John Breyer has died while awaiting trial.
You can read about it here.  He will probably be put on trial, even after his death. I wrote that Breyer might be put on trial after his death here.

Update June 24, 2014:

According to a news article, which you can read in full here, Johann Breyer has been charged with crimes committed at the Auschwitz II camp, from May 1944 to October 1944, when the Hungarian Jews were brought to the camp in 158 trains. Starting in May 1944, Breyer was a perimeter guard at the Auschwitz I camp, which was 3 kilometers from the Auschwitz II camp.  Before that, he was a perimeter guard at the Buchenwald concentration camp, where there was no gas chamber.

The following quote is from the news article:

In Germany, Breyer was accused in connection to the extermination of approximately 158 trainloads of Jewish prisoners coming from Hungary, Germany and Czechoslovakia. This is documented to have occurred between May 1944 to October 1944. Thousands of women, men and children from the trains were sent to their deaths in the gas chambers. Breyer has denied any direct involvement in the execution process. Prosecutors argue that being a perimeter guard [at the main Auschwitz camp] and his overall presence in the camps is being involved in the process and that his role served to aid in the the deaths.

The reporter, who wrote this article used a photo from this page of my website: http://www.scrapbookpages.com/AuschwitzScrapbook/Tour/Auschwitz1/Auschwitz12.html

Unfortunately, the reporter didn’t read the text on my website, after stealing the photo, or she would have known that the Jews, who were gassed between May 1944 and October 1944, were gassed at the Auschwitz II camp, aka Auschwitz-Birkenau.  My photo shows the gate into the Auschwitz I camp, where Breyer was a guard, but the gas chamber in this camp was no longer in operation in 1944.

Another news article, which you can read in full here, also gets the story completely wrong.

This quote is from the article, cited above:

As an armed guard at the Nazi concentration [main] camp at Auschwitz and a member of the notorious SS “Death’s Head” battalion, the authorities charged on Wednesday, Mr. Breyer was complicit in the gassing of 216,000 Jews taken [to the Auschwitz-Birkenau camp] in 1944 from Hungary, Czechoslovakia and Germany.

The Germans, seeking to have him extradited to stand trial, have charged him with 158 counts of aiding and abetting in murder — one count for each of the 158 trainloads of Jews taken to the killing center at [the Auschwitz-Birkenau camp] in a six-month span. Most of the so-called deportees, including many thousands of women, children and old people, were killed in gas chambers almost immediately after arriving at Auschwitz [Birkeanau], with their bodies burned in four crematories.

Mr. Breyer acknowledged two decades ago, when first questioned by the American authorities, that he had worked as a guard at Auschwitz [main camp], but he said that he had done so involuntarily and had nothing to do with the gassings. His lawyer, Dennis Boyle, insisted Wednesday that Mr. Breyer had worked in a prison section of Auschwitz [ main camp], not among the guards in the extermination area [Auschwitz-Birkeanu]. “He was absolutely not one of those guards,” Mr. Boyle said.

You can read about the history of the “Death’s Head” unit of the SS on this page of my website: http://www.scrapbookpages.com/DachauScrapbook/SScamp/SSHistory.html

Continue reading my original post:

According to a recent news article, which you can read in full here, 89-year old former German SS soldier Johann Breyer, now living in Philadelphia, Pennsylvania in the USA, has been charged with being “complicit” in 158 cases of murder in the deaths of 216,000 Jews at Auschwitz.

Complicit? What does that mean? It means that he was present, somewhere inside one of the three Auschwitz camps, when 216,000 Jews arrived on 158 trains, and he did nothing to prevent the Jews from being taken to the gas chamber.  If he had tried to prevent the deaths of these 216,000 Jews, he would have been shot, on the spot, but he would have gone down in history as a hero, who tried to save Jews from an ignominious death.

The “criminal complaint” against Johann Breyer (click on the photo to enlarge)

The Talmud teaches that “He who saves a single life, saves the world entire.”

  http://jewinthecity.com/2013/09/he-who-saves-just-one-life-saves-the-world-entire/#ixzz35ZNdmqpz

Are the names of the 216,000 Jews, who arrived on these 158 trains known?  Yes, but there was always a “selection” done by Dr. Josef Mengele, who was always at the ramp, looking for twins for his experiments.

The Jews, who were gassed immediately after they got off the trains in the Auschwitz-Birkenau camp, were not registered, so their names are unknown.

Each of the Holocaust survivors, who is still alive today, has a story about why they were not gassed.

Hungarian Jews arriving at Auschwitz-Birkenau

What the news article didn’t tell you is that Breyer will be prosecuted in a German court, under the “common design” theory, an ex-post-facto law, that was made up by the Allies after the war. Under this concept, every German man or woman was guilty of murdering Jews, if they were anywhere near a concentration camp during World War II, working in any capacity. Even a person, who once worked as a baker, or a supply clerk in a Nazi camp, is guilty under the “common plan” or “common design” concept that was dreamed up by the Allies after the war.

This quote is from the news article:

An 89-year-old Philadelphia man [Johann Breyer] was ordered held without bail today on a German arrest warrant charging that he aided and abetted in the deaths of 216,000 Jews while he was a guard at the Auschwitz death camp.

The “Auschwitz death camp” was Auschwitz-Birkenau, aka Auschwitz II, which was located near the “Judenrampe” (shown in the photo below) where the Jews got off the trains, before the tracks were extended inside the camp when the Hungarian Jews were deported in May 1944.

The train ramp, from where the Jews were taken to the Auschwitz II camp to be gassed

However, this quote from the news article says that Breyer worked at the Auschwitz I camp:

Breyer testified in U.S. court that he served as a perimeter guard at Auschwitz I, which was largely for prisoners used as slave laborers, though it also had a makeshift gas chamber used early in the war; it was also the camp where SS doctor Josef Mengele carried out sadistic experiments on inmates.

But [Breyer] denied ever serving in Auschwitz II, better known as Auschwitz-Birkenau, the death camp area where the bulk of the people were killed.

Note that, according to the news article, the Auschwitz I camp had a “makeshift gas chamber.”  What does that mean?  Is this a reference to the fact, now admitted, that the gas chamber in the main camp was created by the Soviets after the war?

Or is the term “makeshift gas chamber” an admission that the so-called gas chamber in the main camp was a morgue room that could not have been used as a homicidal gas chamber?

Will the prosecution have to prove that the “makeshift gas chamber” in the main camp could have been used to kill people?  No, of course not. It is “common knowledge” that Jews were gassed inside what looks like a morgue room in the main Auschwitz camp.

Gas chamber in main Auschwitz camp was located in the morgue room (Click on photo to enlarge)

Quote from the news article:

By early 1943, [Breyer] arrived at Auschwitz, still a [17-year-old] teenager. He allegedly became a member of the Death’s Head battalion. In the next year, 216,000 Jews arrived by train and “were exterminated upon arrival,” the indictment says. They “were taken from the train ramp by armed Death’s Head guards directly to the gas chambers for extermination. … The armed Death’s Head guards were under orders to shoot to kill anyone who tried to escape.”

Note that all the Jews, who had arrived by train, “were exterminated upon arrival.”  What? There were no selections?  Where was Dr. Mengele when these 216,000 Jews arrived by train? Maybe he was sick.  It is known that Dr. Mengele got typhus while he was at Auschwitz, so maybe he missed doing the selections from 158 trains.

You can read about the “Death’s Head” battalion on my website at http://www.scrapbookpages.com/DachauScrapbook/SScamp/SSHistory.html

The photo below shows the “Death’s Head” emblem. Any German soldier, who wore this emblem, was a criminal, under the ex-post-facto laws of the Allies.

Death’s Head emblem worn by SS men on their caps.

If Johann Breyer is renditioned to Germany for prosecution under the “common design” charge, he will be automatically convicted because there is no defense against the “common design” charge. Any German person, who was anywhere near a German concentration camp is automatically guilty, regardless of his or her job at the camp.

John Breyer claims that he does not have a tattoo, which all SS soldiers were supposed to have, showing their blood type. Dr. Mengele did not have this tattoo either.  If an SS soldier were caught after the war, he would have been instantly recognizable as an SS soldier, so apparently these soldiers were given a choice in the matter, since the tattoo marked them as a “war criminal.”

Proof of the Treblinka gas chambers found in the trial testimony of Franz Suchomel, a junior SS guard at the camp

My 1998 photo of the entrance into former Treblinka camp, which was way out in the boondocks in what is now the country of Poland

Today, I am responding to a comment, about the Treblinka camp, made by a reader of my blog.  At the very end of this reader’s comment was this sentence:

“Please gentleman a little common sense here!”

O.K. I am going to attempt to provide a little common sense, so bear with me.

Franz Suchomel was a junior SS guard at Treblinka

This quote is from Wikipedia:

Franz Suchomel (3 December 1907 – 18 December 1979)^[1] was a Sudeten German Nazi and Unterscharführer (junior sergeant) in the SS. During World War II he participated in the Action T4 euthanasia program, in Operation Reinhard, and the Einsatzgruppen actions in the Adriatic operational zone. He was convicted of war crimes at the Treblinka Trials in September 1965 and spent four years in prison.

The comment, to which I am responding on my blog, was about the confession of Franz Suchomel, a low level SS guard at the Treblinka camp, who gave an interview for Claude Lanzman’s documentary entitled Shoah.

Franz Suchomel was convicted in a trial, conducted by the German government in 1965, twenty years after the end of World War II.

According to Wikipedia, “Suchomel was convicted of accessory to murder and sentenced to six years in jail.^[4] Suchomel was released from prison on 20 December 1967.^[1]”

Was there a war crime, called “accessory to murder” during World War II?  No, but there was an ex-post-facto law, called “common design” or “common plan” which was used during the Nuremberg International Military Tribunal.  According to this ex-post-facto law, if you were anywhere near a Nazi concentration camp, you were guilty of a crime.  The law of “common plan” was also used by the American Military Tribunal in the war crimes trials conducted at Dachau after World War II.

This quote is from the comment made by the reader of my blog:

[Franz Suchomel] An Officer of the SS, who was already tried and convicted for his duty at Treblinka (so to speak), who served time – would never-the-less give an interview with a private individual (e.g. non governmental/non-police) [Claude Lanzman] who was advancing a record that was totally untrue (e.g. Treblinka was a death camp); whereby this individual would then make up extremely specific details related to the operation of the [Treblinka] camp as he remembered them in the capacity as a Jr. SS Officer.

Think about it (assuming your assumption), you [Suchomel]  just spent 4 years of your life in a jail for a crime that simply did not exist, so you get out of jail, and then 8 or 9 years later as an old man you decide, heck let me speak to this French Jew [Lanzman] and tell him all the details about a death camp operation that I was convicted for, served time for being involved in the operation, but [it] really never happened. Most people who get accused of something they didn’t do, don’t go around making up stories about what they witnessed at the event that never happened.

Even if the trial (where the decisions were handed out by non-Jewish Germans- not Americans), you would think that Mr. Suchomel or one of the co-defendants would have gotten up and said, what the h** are you talking about there was no Treblinka death camp! If there was no camp you would think that some of the individuals would have used the defense, there was no such camp. No the defenses in most of the trials is that yes it happened but I was just a soldier following orders…. I wasn’t in charge… someone else who was in charge (a point Mr. Suchomel gets defensive about during his interview [with Lanzman], when he reminds the interviewer that the interview is not about him but about what he saw [at Treblinka].)

So why DID Franz Suchomel give an interview to Claude Lanzman?  Take a look at his photo at the top of my blog post.  Franz looks like a simple man, and a man who would not hurt a fly.  He was trying to be polite, when he was asked by Lanzman to give an interview.

Note that Wikipedia mentions that Suchomel was a Sudeten German. The Sudeten Germans were originally from Austria, and they migrated to the Sudetenland in the 1500s.  So he was from the same ethnic group of Germans as Hitler, Kaltenbrunner, and many other top level Nazis. This is all the more reason that he would have been loyal to the Nazi government, and not a traitor to his country.

According to the Wikipedia entry for Suchomel, “Franz Suchomel was secretly interviewed for the documentary film Shoah, directed by Claude Lanzmann and released in 1985. During the interview at a hotel in Braunau am Inn he provided details of Treblinka criminal operations.”

Notice where the SECRET interview took place: Braunau am Inn, the birthplace of Adolf Hitler.  Why was the interview secret and why did it take place at Braunau am Inn, which was not the residence of Franz Suchomel?

I am using my “common sense” here to say that this sounds suspicious to me.  The photo below shows that the Treblinka camp was located way out in the boondocks in what is now Poland.

Stone markers show the border of  the Treblinka camp, which was formerly located in what is now the country of Poland

As for the trial of Franz Suchomel, by the German government, if he had denied, during this trial, that there was a gas chamber at Treblinka, he would have been convicted of the crime of “Holocaust denial” under the laws of post-war Germany.

There was no defense against the ex-post-facto law known as “common plan.”  Suchomel could not deny that he was at Treblinka, and if he was there, he was guilty of a war crime, according to the ex-post-facto laws made up the Allies.

Memorial stones of basalt recreate pits where 900,000 bodies were burned at the Treblinka camp

This interesting quote is also from Wikipedia:

“In March 1941 [Franz Suchomel] became a photographer at the Hadamar Euthanasia Centre in the Action T4 headquarters in Berlin, where he took photographs of euthanasia victims before their killing.”

Today, the euthanasia program at Hadamar is purported to be the killing of only slightly “disabled” people.  Suchomel had the job of taking photos of the people who were killed, in order to show that they were severely disabled, and not able to function. These photos are no longer shown anywhere on the Internet. Now we are required to believe that the Holocaust started with the killing of people who were able to function as normal healthy people.

94-year-old former SS soldier, who worked as a cook in a concentration camp, will not be put on trial

According to an article in the news yesterday, a former SS soldier, who is accused of being a war criminal, is being given a pass because, at the age of 94, he has signs of dementia.  This man would have trouble understanding the charges against him, even if he were sound of mind.

According to the news article, 94-year-old Hans Lipschis was set to be charged with being an accessory to thousands of murders.  Say what?  Hans was a cook. Did he personally poison thousands of Jews?  No, that was not his crime.

The news article does not explain that Hans Lipschis was scheduled to be tried on a charge of “common design” or as it is currently called, the Demjanjuk principle.

John Demjanjuk lying on a stretcher in a German courtroom

Common design was the name of an ex-post-facto law, that was dreamed up, as a charge under which the SS men who worked, in any position, in a concentration camp, could be tried as war criminals, even if they had done nothing wrong.  You can read about the “common design” charge, which was first used by the American Military Tribunal at Dachau, on my website here.  “Common Design” was also used at the Nuremberg International Military Tribunal.

This quote is from the news article:

Germany is in a last push to try to convict former guards at Nazi concentration camps after a historic change in stance by the courts. Previously it was necessary to bring witness evidence of a physical killing. Now, the fact of working at a camp proves guilt.

Prosecutors argue that whatever Lipschis did at Auschwitz, it helped to enable thousands of Holocaust murders by the guards as a group.

Last month, Germany’s war-crimes investigation unit asked regional prosecutors to arrest and try 30 other former guards on similar charges.

Lipschis was arrested May 6 and has been held since in a jail near Stuttgart.

The Ellwangen court based its ruling on Lipschis’ demeanor at court hearings and a psychiatrist’s report that said his powers of concentration and short-term memory were significantly reduced, with ups and downs day by day. Under stress, he became disoriented.

Lipschis, who was recruited during the war as an auxiliary by the SS, the security arm of the Nazi party, has not denied to reporters being at Auschwitz. He has contended he was assigned to the kitchen.

The indictment said he was part of the guard corps there between 1941 and 1943, a period when 12 trainloads of prisoners with thousands of people on board arrived as Nazi Germany killed Jewish people on a massive scale.

The SS routinely selected any of the new arrivals it considered incapable of work and killed them immediately in gas chambers.

As a displaced person after the war, Lipschis first lived in Germany, then obtained entry to the United States in 1956 and lived in Chicago. His U.S. citizenship was later revoked and he was expelled back to Germany in 1982 and settled in the small town of Aalen.

The photo below shows Friedrich Wetzel, as he is sentenced to death for the crime of being a supply officer at Dachau.

Friedrich Wetzel was sentenced to death by the American Military Tribunal, on a charge of “common design.” because he was a supply officer in the Dachau camp

Friedrich Wetzel, shown in the photo above, was a pathetic, mild-mannered man who wouldn’t hurt a fly; he was the supply officer in the camp and had not personally committed any atrocities. In the defense closing argument on December 12, 1945, Lt. Col. Douglas Bates argued against the concept of “common design.” Bates said the following, with regard to Friedrich Wetzel, as quoted from the trial transcript:

“And a new definition of murder has been introduced along with common design. This new principle of law says “I am given food and told to feed these people. The food is inadequate. I feed them with it, and they die of starvation. I am guilty of murder.” Germany was fighting a war she had lost six months before. All internal business had completely broken down. I presume people like Filleboeck and Wetzel should have reenacted the miracle of Galilee, where five loaves and fishes fed a multitude.”

When will this madness end?  Never!  The Jews can never get enough revenge for the Holocaust.  The German people are just trying to protect themselves.

By what authority does Germany have the right to try non-German citizens?

According to a news article, which you can read here, German prosecutors are investigating an 87-year-old suspect who has been accused of “involvement” in mass murder at Auschwitz. The suspect is not German and he is not currently living in Germany.  [Update July 5, 2014: This must be Johann Breyer.]

This quote is from the news article:

[The unnamed suspect] was allegedly a camp guard in 1944, when about 344,000 Jews from Hungary were murdered in the Auschwitz-Birkenau gas chambers in occupied Poland.

Prosecutors in Weiden, Bavaria, are to decide whether to charge him and try to bring him to Germany to face trial.

The man is believed to have lived in the Weiden area before going abroad after World War II.

German officials have not named him, but the Sueddeutsche Zeitung news website says the suspect is believed to be a Slovak now living in Philadelphia, in the US.

The chief prosecutor at Germany’s office investigating Nazi war crimes, Kurt Schrimm, said details on the suspect came to light during the high-profile Demjanjuk investigation.

In March this year Ukrainian-born John Demjanjuk, found guilty for his role as a Nazi guard at the Sobibor death camp, died aged 91. He had been sentenced to five years in prison by a German court in May 2011.

In answer to my question in the title of my blog post, the Demjanjuk trial set a precedent. John Demjanjuk was sent to Germany for trial; he was convicted by a German court, under the “common design” theory of guilt. This precedent now gives German courts the right to bring suspects, living in America, to trial in a German court.

There is no defense against the “common design” charge, so anyone who is put on trial in Germany under this charge will be automatically convicted.  The “common design” theory of guilt means that a suspect is guilty if it can be proved that he was there when Jews died during the Holocaust. Just being a guard in a “death camp” is enough to be proven guilty, even though the suspect had nothing to do with the deaths of the Jews.

Why even bother to send this man to Germany for trial?  Just put him in prison in America.  Unless, of course, he is too old for prison, in which case, he can be put into a nursing home in America until he dies of old age.

BTW, the estimate of 344,000 Hungarian Jews, who died at Auschwitz, is  very low.  Since the exact number is unknown, why not go with a higher estimate?  I would not go below 400,000.  Some Holocaust experts claim that over 500,000 Hungarian Jews were killed in the Holocaust.

The ex-post-facto law of “common design” lives on as the “Demjanjuk principle”

In today’s news, there is an article about a former Auschwitz guard who is still alive and is now in danger of being prosecuted under the concept of “common design,” an ex-post-facto legal principle that was made up by the Allies after World War II.  The Allies used the “common design” or “common plan” concept to convict anyone who had any connection whatsoever to a concentration camp.  The “common plan” principle was also used at the Nuremberg International Military Tribunal.

I previously blogged about the Demjanjuk case in which the “common plan” law was used.  I predicted that this principle would be used again to convict any German still alive who had any connection, however remote, with the Holocaust.  I also blogged here about the American Military Tribunal which had a 100% conviction rate, using the “common design” principle which has no defense.  Basically, under the “common design” principle, if you were there, you are guilty.  For example, the Commandant of the Buchenwald camp:  I blogged about his conviction here.

The following quote is from the news article about the 87-year-old man who will be the next victim who is brought into a German court on a stretcher to face charges of gassing people at Auschwitz because he was a guard at Auschwitz and he did nothing to stop the gassing.  His only defense will be to prove that he was not a guard at Auschwitz. Will the court have to prove that people were gassed at Auschwitz?  No, of course not.  That is “common knowledge” which does not have to be proved.

The Baden-Württemberg Zentrale Stelle for Nazi prosecutions said its investigation into the man was completed and had been handed to the public prosecutor in Weiden, Bavaria.

The man, who lives outside Germany, worked at the camp from at least April 1944, in closing off ramps leading to gas chambers, in guard duties around the camp, and in shifts on the watchtowers. This is enough to consider him having made a “causal contribution to the murderous crimes,” the Zentrale Stelle report concluded.

The public prosecutor confirmed it had received files which it would take several weeks to check.

Head of the Zentrale Stelle Kurt Schrimm said May’s conviction of Demjanjuk had been crucial to his continued work in putting together this prosecution case. “The verdict of Munich district court burst the dam,” he said.

Before that verdict courts had required proof of individuals personally taking part in a murder to convict them.

But since the conviction of Demjanjuk this is no longer the case. He was convicted of helping to murder at least 28,000 people at Sobibor death camp in Poland simply due to the fact he worked there as a guard.

When will this madness stop?  Never!  There will never be enough Revenge against the German people.  The German people have now been rehabilitated and they are participating in their own demise.

German war criminals convicted by the American Military Tribunal at Dachau

Friedrich Weitzel, wearing #40 on his back, is sentenced to death by the American Military Tribunal

Most people know about the Nuremberg International Military Tribunal where the most important German war criminals were put on trial by the Allies in November 1945, but less well known are the trials conducted by the American Military Tribunal where German war criminals were prosecuted in a courtroom at the former Dachau concentration camp.  The photo above shows Friedrich Weitzel, a member of the staff at the Dachau camp, as he hears his death sentence pronounced by an American Military judge.

Friedrich Weitzel is identified in court by Helmuth Breiding

What heinous crimes had Friedrich Weitzel committed against the innocent prisoners in the Dachau concentration camp?  Weitzel had not personally committed any crimes at all; he was prosecuted under the ex-post-facto law called “common design” which made it a crime for anyone to have had any connection whatsoever to a Nazi concentration camp.  (Concentration camps had been declared to be a criminal enterprise by the Allies after World War II ended.)

Weitzel was the supply clerk for the Dachau camp. The following quote is from the book entitled Witness to Barbarism, written by a member of the prosecution staff at Dachau:

[The American prosecutor] Denson has drawn the indictment alleging violations of the Rules of Land Warfare – namely, the killings, beatings, torture, starvation, and other abuses from January 1, 1942, to April 29, 1945, when the Americans liberated Dachau. [Denson] says the worst offense was the starvation of prisoners through embezzlement. The administration of each camp received a check by mail from the Himmler headquarters in Berlin, the amount depending on the number of prisoners. But they bought as little food as possible for prisoners, pocketing the remainder of the funds.

If Weitzel had personally embezzled the funds given to him to buy food for the Dachau prisoners, he would have been prosecuted by the Nazis themelves. Karl Otto Koch, the Commandant of Buchenwald, was accused by the SS of embezzling money from funds given to him for the Buchenwald camp; Koch was executed by the SS after a trial conducted by SS judge Konrad Morgen. Amon Goeth, the Commandant of the Plaszow camp in the Schindler’s List story, was awaiting trial by the SS when World War II ended; he had been accused by Morgen of stealing from the warehouses at the Plaszow camp.

The Dachau camp was also investigated by Morgen, but there were no accusations of embezzlement of funds for food at Dachau.  None of this mattered to the Americans who prosecuted staff members of Dachau.  Under the “common design” ex-post-facto law, every German was guilty of something, regardless of what he had personally done.

In the same photograph above, which was taken on November 22, 1945, the man on the far left, wearing #29 on his chest, is Sylvester Filleböck. One prosecution witness testified that Filleböck was present in September 1944 when 90 Communist Commissars in the Soviet Army were executed at Dachau on the orders of Adolf Hitler. Filleböck denied being present at the execution and six other witnesses corroborated his story, but nevertheless, he was sentenced to death by hanging. He was guilty of a violation of the Laws and Usages of War because he was allegedly present during the executions and had not acted to intervene.

All German soldiers in both the SS and the Wehrmacht were required to swear an oath to Adolf Hitler. By not intervening in the executions ordered by Hitler, Filleböck had prolonged his own life by a few years, since he would undoubtedly have been shot on the spot if he had tried to stop an order from being carried out. The prosecution contended that he would have merely been transferred to another job.

During closing arguments, defense attorney Lt. Col. Douglas Bates gave the following argument with regard to the “superior orders” defense:

There has been a lot of impressive law read by the chief counsel, and it is good law – Miller, Wharton. The sad thing is that little of it is applicable law. Perhaps we have not been diligent enough in seeking applicable law. Some think the prosecution has found applicable law in the Rules of Land Warfare on the doctrine of superior orders. We have no intention of arguing that executions by the German Reich were due process. Nevertheless, we contend that executions were the result of law of the then recognized regime in Germany and that members of the firing squad were simple soldiers acting in the same capacity as in any military organization in the world.

Most of the German war criminals were defended by American military lawyers.   In the closing argument presented by the defense in the trial of Weitzel, on December 12, 1945, Lt. Col. Douglas Bates argued against the concept of “common design.”

Bates said the following, with regard to Friedrich Wetzel, as quoted from the trial transcript:

And a new definition of murder has been introduced along with common design. This new principle of law says “I am given food and told to feed these people. The food is inadequate. I feed them with it, and they die of starvation. I am guilty of murder.” Germany was fighting a war she had lost six months before. All internal business had completely broken down. I presume people like Filleboeck and Wetzel should have reenacted the miracle of Galilee, where five loaves and fishes fed a multitude.”

Another German war criminal who tried to use the “obeying superior orders defense” was Leonard Eichberger; he was a soldier who was ordered to Dachau after he was wounded at the front and had lost a leg.  His defense lawyer, Capt. Niles, argued before the court that Eichberger had not had a choice when he was assigned to Dachau and that he should not be held responsible for the legality of the orders that he had to carry out in the camp.   

In the photograph below, prosecution witness Michael Pellis identifies SS Hauptscharfürher Franz Böttger in the courtroom at Dachau during the American Military Tribunal proceedings in the case of US vs. Martin Gottfried Weiss, et al. The man wearing a card with the number 34 is Walter Adolf Langleist.

Franz Böttger is identified by Michael Pellis in Dachau courtroom of American Military Tribunal

Franz Böttger was born in 1888 and was 57 years old at the time of his trial. Between May 1941 and May 1945, he had served as a Rapportführer (Roll call leader) in the Dachau camp. One of his duties was to escort condemned prisoners to the crematorium where they were shot or hanged.

At the Dachau trial, Böttger was charged with kicking the chair out from under a Russian Communist Commissar when he was hanged. He was also charged with shooting a Russian POW who collapsed on an evacuation death march out of the Dachau camp on April 27, 1945.

The following quote is from the book entitled Dachau Liberated The Official Report by the U.S. Seventh Army, edited by Michael W. Perry:

Bottger, Franz – SS Hauptsharfuhrer

Rapportfuhrer in the camp, subject is an outstanding example of inhuman cruelty and brutality. He participated in the killing of many political prisoners as well as the killing of many prisoners of war. On 27 April 1945, he left Dachau with an evacuation transport. Over 1200 people were killed on the way. Subject was recognized and apprehended by informants working for this detachment about 30 kilometers distance from Dachau.

Although Böttger had been accused of killing many prisoners by the Americans who wrote the Official Report, he was only charged with killing two people during his trial by the American Military Tribunal.

Another Dachau staff member who was put on trial by the American Military Tribunal was Franz Trenkle, who was one of the executioners at Dachau. (Trenkle wore card number 4 around his neck during the trial.) Under interrogation by Lt. Paul Guth before the trial began, Trenkle had confessed to shooting prisoners that had been convicted of sabotage and looting and had been brought to Dachau for execution.

Trenkle’s defense was that he was obeying superior orders. The order had been given by der Führer, Adolf Hitler, and passed down to Ernst Kaltenbrunner, the head of the SD, who then passed the order down to SS Lt. Gen. Richard Glücks who gave the order to Gauleiter Paul Giessler who ordered the shooting. Trenkle claimed that he could only obey commands and was powerless to stop the executions.

The defense of obeying superior orders was not valid in the cases tried by the American Military Tribunal.  Franz Trenkle was convicted and hanged on May 28, 1946; he had extended his life by a few years when he obeyed superior orders.

Emil Mahl is identified by Rudolf Wolf in Dachau courtroom

The photo above shows Emil Mahl, wearing number 33, as he is identified in the courtroom at Dachau by Rudolf Wolf, a former prisoner in the Dachau camp. Seated on the far right is Albin Gretsch, number 31.

Emil Mahl was specifically charged with assisting in the execution of a young Russian Prisoner of War who was one of the 90 Communist Commissars hanged at Dachau. Adolf Hitler had ordered that all captured Communist Commissars should be brought to the nearest concentration camp and executed. Mahl had committed a war crime when he put the rope around the neck of the Russian POW before his execution.

Emil Erwin Mahl was defended by Hans Karl von Posern, a German attorney, who had been a prisoner at Mauthausen. His defense was that Mahl was only obeying orders: “Befehl ist Befehl – an order is an order.”

Pointing to Emil Mahl behind him, von Posern said, “Here is defendant Mahl, who was told he had to take part of an execution. He gets led up to the execution place and receives the order to place the rope on the neck of a man who shall get hanged. If he had not obeyed the order, his own execution would have taken place.”

Eugen Seybold, a crematorium worker at Dachau, points a finger at SS doctor Dr. Fritz Hintermayer

The photograph above shows Dr. Fritz Hintermayer, on the left, wearing a card with the number 10 around his neck. Eugen Seybold, a former prisoner in the camp, points to him as he identifies Dr. Hintermayer as one of the SS doctors at Dachau. Dr. Hintermayer was one of the accused who claimed that he was coerced into signing a confession by Lt. Guth.

Eugen Seybold was one of the Kapos at Dachau; he was one of the workers in the crematorium whose job it was to put the dead bodies into the cremation ovens. Eugen Seybold could potentially have been among the accused himself if he had not agreed to testify for the prosecution as a paid witness, as one of the defense attorneys pointed out during the trial.

Fritz Becher is shown in the courtroom at Dachau

The photo above shows Fritz Becher in the courtroom at Dachau, just after he rose from his chair to take the witness stand.  Becher was accused of beating a priest to death at Dachau.  American prosecutor Lt. Col. William Denson conceded that Becher might have been falsely accused by one of the witnesses: “It may be pointed out by defense counsel that some testified falsely, that on a certain date they saw Becher beat a priest so brutally that he died, and Becher states he was not at that place at that particular time. And the witness may indeed be in error in that respect.”

In the end, it didn’t matter that the prosecution had not proved that Becher had beaten a priest to death. He was nevertheless sentenced to death by hanging; Becher was executed on May 29, 1946.

The prosecution called more than 100 witnesses to the stand in the first Dachau trail; at the end of his presentation, Lt. Col. Denson called several of the Jewish interrogators to the stand. All of them denied using any force or coercion to obtain confessions from the accused. Supposedly, the accused had voluntarily signed confessions admitting to the most ignominious atrocities, such as making human shrunken heads or fashioning handbags out of human skin, with the knowledge that they would surely receive a death sentence for such crimes.

Germany will attempt to try more WWII “war criminals” under the “common design” ex-post-facto law

I’ve been reading in the news lately about the Polish government’s search for more German war criminals to put on trial. The trials will be conducted by the Germans in German courts.

After the conviction of John Demjanjuk in a German court, I predicted in this blog post on May 12, 2011 that Germany would have more trials based on the “common design” ex-post-facto law.  German courts will now “proceed according to precedent” and use this ex-post-facto law to convict more Germans who served at concentration camps during World War II.  I assume that the German government will also pay for their incarceration in nursing homes.  The World War II German criminals are at least 85 or 86 years old now.  At the time that they were working in a concentration camp, they didn’t know that someday they might be convicted as a war criminal just for BEING THERE.

Here is a quote from a news article about Poland’s new investigations, which you can read in full here:

The Institute of National Remembrance – a research body affiliated with the Polish government – stated last week that the main “purpose of the investigation is a thorough and comprehensive explanation of the circumstances of” the crimes that took place at Auschwitz.

[…]

During November 2010, there were “852 ongoing investigations of Nazi war criminals,” though there are certainly others living in secret, according to Slate. From the past decades, these people have essentially been getting away with their crimes, living quiet lives among the families of their victims. All because they aren’t criminals of the same caliber as those prosecuted at Nuremburg or Dachau. They were the lower ranking members of the Gestapo and the SS, following orders and murdering and torturing innocent people. For this reason, lower-ranking soldiers should not be left to live their lives after war: They should be prosecuted just like their superior officers have been. Lower-ranking soldiers are just as guilty as the upper command and should be treated as such.
[…]

The re-launched investigation into Auschwitz can be the way to address this problem, even without convictions by the Institute of National Remembrance. Instead, this Polish body can make inquiries, form conclusions, make indictments, and leave obtaining convictions to the German government. In the past year, Germany has been able to convict John Demjanjuk “based on the theory that if he worked there, he was part of the extermination process, even without direct proof of any specific killings,” according to the Huffington Post. This new German precedent, along with the fact that Berlin asks to be allowed to extradite Nazi war criminals, gives new hope for convictions.

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.

Demjanjuk convicted under the “common design” theory of guilt

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.  

Dutch heroine Coba Pulskens hid downed Allied flyers in World War II

Today I was searching the news on google, as I do every morning, and I came across the remarkable story of Coba Pulskens, a Dutch woman who was part of the Resistance movement in the Netherlands in World War II.  A monument to Coba Pulskens, who died in the gas chamber at Ravensbrück in February 1945, has been erected to her in Tilberg in the Netherlands.

I previously blogged about the Ravensbrück gas chamber here.

Monument to Dutch heroine Coba Pulskens in Tilberg

The photo above and the following quote is from the ww2museums.com web site which you can see here:

The monument for Coba Pulskens in Tilburg, The Netherlands, has been erected in memory of the lady in the resistance movement who perished only a few months before the liberation. Jacoba Pulskens (1884-1945) During the Second World War she offered shelter to Jews, members of the resistance movement and to stranded allied aircrew.

On Sunday 9 July, 1944, a command group of the Gestapo (German Secret State Police) raided the house of Pulskens at the Diepenstraat. Contrary to the rules of engagement, the three hidden airmen were not taken Prisoner of War, but immediately shot in the kitchen and in the backyard. Mrs. Pulskens, 60 years of age, was arrested and deported to Ravensbrück, a concentration camp for women. In February 1945, she died in the gas chamber. According to survivors she voluntarily took the place of a mother with children hoping that to save their lives.

This story got my attention because of this phrase that leaped out at me: “Contrary to the rules of engagement…”

What rules of engagement?  The Geneva Convention and the Hague Convention?  Coba Pulskens was an illegal combatant under the rules of the Geneva Convention, which states that after a country surrenders in a war, the people in that country who take up arms and continue fighting as civilians are illegal combatants who do not have the protection of the Geneva Convention.  By mentioning the “rules of engagement,” whoever wrote this is making a legal case that the killing of the Allied airmen was a war crime; it gives a signal that there might be another side to the story.

I did a little research on this story and the first thing that I learned was that the airmen were wearing civilian clothes when they were found by the German Sicherheitsdienst (Security police) from the town of Den Bosch.  The Netherlands had surrendered and was under German occupation at this point in World War II. If these airmen had turned themselves in, instead of hiding with the Dutch resistance, they would have been treated as POWs and sent to a POW camp where they would have been treated according to the rules of the Geneva Convention.

Michael Rotschopf, the man who shot the airmen at Coba Pulsken’s house on July 9, 1944, was prosecuted by a  British Military Court in Essen, Germany in June 1946, along with nine other Sicherheitsdienst men who were included under the “common design” principle used by the Allies in war crimes trials. Rotschopf, along with three others, was convicted and sentenced to be hanged.

The following quote is from the Law Reports of Trials of War Criminals. Selected and Prepared by the United Nations War Crimes Commission. Volume XI, London: HMSO, 1949:

Mr. Nico Pulskens, whose house was opposite that of Aunt Coba, stated that on the morning of 9th July, 1944, at about 11.0 to 11.15 a.m. he had called on Aunt Coba and seen three English pilots. The latter were carrying no arms and were dressed in civilians clothes. Shortly afterwards he returned to his own house and heard shots and groans from the direction of Aunt Coba’s house. Looking in that direction from his own house, he saw a man in a blue raincoat “threatening with a sten gun,” the shooting continued until the groaning of the victims ceased. He identified Rotschopf as the man who performed the shooting.

[…]

Rotschopf claimed that his orders were to arrest persons of a Resistance group but of whom he had received no description. His instructions from Hardegan at Tilburg were to pass through the house and secure the back of it. According to his evidence, while passing through the living room with his sten gun under his overcoat, he saw three persons in civilian clothes at a table. When he reached the yard behind the house, he saw three men running towards him. When they ignored his shouts of  “Halt. Hands up,” he shot at them and they fell immediately. Cremer then came over the wall from the right, Hardegan and possibly Roesener from the left.

Rotschopf admitted that, in his view, the three men died as a result of his firing. He said that he did not know that the three men were members of the Allied Forces and that “ We did not go there to murder them.” He denied backing the men into the yard and there shooting them in accordance with a concerted plan. He admitted that his gun was loaded when he entered the house but he denied that the three pilots surrendered. Rotschopf said : “ I saw no other way out, and I considered myself under pressure.” Hardegan had told him that if he was attacked he should use his gun, as the persons to be arrested might be armed. He said he did not think that if he had merely pointed the gun at the men it would have stopped them. He said that the events all happened suddenly, and his act was done in self-defence.

[…]

The Defence argued that no plan to commit murder had been proved. The Prosecution, on the other hand, maintained that “ this was a concerted action to murder three British pilots, three people who were known to be British pilots and that they, having surrendered to the accused Rotschopf, were in fact murdered in accordance with the plan.”

Much of the argument of Counsel concerned the inferences to be drawn from circumstantial evidence. Thus, the Defence pointed out that Rotschopf was a war-wounded person who was subject to fits, and who had been posted to the DienststelIe to perform office work. Schwanz also was primarily an office worker. The Defence drew the conclusion that neither could have been chosen for the task had it been intended to involve killing people. The Prosecution, on the other hand, emphasised that Rotschopf had had considerable experience of street fighting in Russia which would make him a suitable person to send on a killing mission, and that since Schwanz spoke fluent Dutch he could make enquiries without arousing suspicion. Again, the Prosecution produced evidence to show that Rotschopf’s firing had been divided into two bursts, with a short period intervening. This would tend to show that the killing was intended, but the Defence claimed that it was due to spasmodic muscular movements to which Rotschopf was alleged to be subject.

The Defence maintained that it was most unlikely that the victims would be led outside into the open air if the intention were to shoot them, and the Prosecution on their part used the fact that the victims were later cremated as a significant fact.

The complete text about the trial can be read here.

I previously wrote about Allied flyers being sent to Buchenwald which you can read here.