59 Spring 2026 This legal framework proved informative for Holocaust prosecutions in the latter part of the 20th century because it recognized what historians had long understood: the conduct of the Holocaust was fundamentally a systematic crime of the National Socialist regime requiring the participation of thousands of individuals across a vast bureaucratic and operational apparatus. The Holocaust's implementation depended not only on those who operated gas chambers but also on railway workers who transported victims, clerks who processed paperwork, guards who maintained camp perimeters, and administrators who coordinated logistics.15 Any formal application of JCE principles to Holocaust prosecutions required adapting international legal concepts to German criminal law. With the exception of the VtGB changes noted above (footnote10), that has not happened. Yet, German prosecutors and courts began to recognize that individuals who facilitated mass murder through their assigned roles — even if they never personally killed anyone — could be held accountable as accessories to murder (Beihilfe zum Mord) under German criminal code sections 211 and 212. This represented a departure from earlier prosecutorial theories that focused on proving base motives (niedrige Beweggründe) or cruel methods (grausame Mittel) required for murder convictions under German law.16 While not codified in German law, the principles of JCE are clearly evident in the 21st century post-Holocaust trials in Germany. The Demjanjuk Case: A Watershed Moment The prosecution of John Demjanjuk marked a pivotal moment in the conduct of Holocaust justice and the practical application of revised legal theories. Demjanjuk, a Ukrainian who had served as a guard at Sobibor extermination camp, was deported from the United States to Germany in 2009 and tried in Munich. His case presented unique challenges: there was no evidence that Demjanjuk personally killed anyone, and witnesses could not place him at specific incidents of violence.17 The Munich court’s willingness to proceed with the prosecution despite these evidentiary limitations reflected a fundamental shift in judicial philosophy. Presiding Judge Ralph Alt and the prosecution team, led by determined advocates for Holocaust justice, embraced the argument that serving as a guard at an extermination camp necessarily constituted participation in mass murder, regardless of whether specific killings could be attributed to the individual. The court reasoned that extermination camps existed solely for the purpose of mass murder, and anyone who facilitated their operation contributed to that end, a manifestly criminal enterprise. Recently available German rail manifests proved that Demjanjuk had served at Sobibor during a period that saw the arrival of over 25,000 Jews. None of them were known to survive. Demjanjuk's conviction in May 2011 as an accessory to 28,060 murders at Sobibor represented a legal watershed.18 Of note, his conviction was secured with the help of an identification card formerly possessed by the Soviets. The verdict established that participation in the camp's operation, even in what might seem like a peripheral role, constituted criminal liability for all murders committed at the facility during the individual’s service. This “cog in the machine” theory recognized that systematic mass murder requires the coordinated action of numerous participants, and each participant shares responsibility for the collective outcome. 15. Gulia Bigi, “Joint Criminal Enterprise in the Jurisprudence of the International Criminal tribunal for the Former Yugoslavia and the Prosecution of the Senior Military and Political Leaders: The Krajišnik Case,” 14 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 51, 76 (2010). 16. See the Strafgesetzbuch StGB (German Criminal Code), available at https://www.gesetze-im-internet.de/stgb/ BJNR001270871.html#BJNR001270871BJNG000102307 17. For additional biographical information, see United States Holocaust Memorial Museum, “John Demjanjuk: Prosecution of a Nazi Collaborator,” USHMM HOLOCAUST ENCYCLOPEDIA, available at https://encyclopedia.ushmm.org/content/ en/article/john-demjanjuk-prosecution-of-a-nazi-collaborator; see also C.F. Rüter and D.W. de Mildt, eds., JUSTICE AND NAZI CRIMES, VOLUME XLIX, PROCEDURE 920-924 (2002-2012) 880 (ERRATUM), 950-959 (1945-1960; SUPPLEMENTARY PROCEEDINGS) (Amsterdam University Press 2012), Serial No. 924, LG Munich, May 11, 2009, at 314. Hereafter JuNSV Vol XLIX. 18. JuNSV Vol XLIX, supra note 17, at 228.
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