Most war crimes trials have involved the device of judicial notice which entails the court considering a fact to be proved. Notice is usually reserved for such mundane things as facts in the Almanac, the boiling temperature of water, and the location of streets and so on. It can also be taken of scientific or scholarly facts "not reasonably in dispute" (e.g. the earth is a sphere). Once a fact is “noticed” it cannot be disputed.
In many war crimes trials the “fact” of Nazi genocide either in general or at a particular place is judicially noticed or considered res judicata (i.e., already proved in another case involving the same or similarl issues). Otherwise every war crimes trial would invovle a repeat of the Nuremberg Trials.
The difficulty with the Demjanjuk case stems from the theory of guilt. In the war crimes trials I have read summaries of, the fact that Nazi genocide took place at Camp X is noticed and the prosecution goes on to prove that, at Camp X, the defendant did 1, 2, 3, homicidal acts. That is a different theory than saying Demjanjuk did 29,000 homicidal acts because everyone at Sobibor was ordered to participate in the Holocaust. If the “Sobibor Premise” is judicially noticed, that becomes the equivalent of judically noticing “guilt” and there’s nothing left to try.
It seems to me that at least one strategy that should be available to Demjanjuk should he chose to pursue it would be to contest the “all-did-everything” assertion and this would entail at least to some extent a relitigation of what was done at Sobibor after all.
It is noted here, that Demjanjuk's defense has consistently been that he is not the person on the Trawniki Certificate regardless of what may or may not have happened at Sobibor.
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It is noted here, that Demjanjuk's defense has consistently been that he is not the person on the Trawniki Certificate regardless of what may or may not have happened at Sobibor.
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