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Subject: Irving v. Penguin & Lipstadt: Judgment VI-01
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VI. JUSTIFICATION: EVIDENCE OF THE ATTITUDE OF HITLER TOWARDS THE JEWS
AND OF THE EXTENT, IF ANY, OF HIS KNOWLEDGE OF AND RESPONSIBILITY FOR
THE EVOLVING POLICY OF EXTERMINATION

Preamble

6.1 Apart from the specific criticisms made by the Defendants of
Irving's historiography, with which I have dealt in the preceding
section V of this judgment, the Defendants make the broader criticism of
him that he persistently and seriously misrepresents what the evidence,
obectively analysed, shows to have been the attitude adopted by Hitler
towards the Jews in general and his involvement in the evolving policy
to exterminate them. The Defendants' case is that, in order to arrive at
any conclusion about the extent of Hitler's knowledge of the persecution
which culminated in the genocide which took place in the gas chambers,
it is necessary to take account of his conduct (including his public
statements) throughout his political life. If this approach is adopted,
the Defendants maintain that it becomes apparent that the proposition
that Hitler did not know about or authorise the genesis of the gassing
programme is unsustainable.

6.2 In this section I shall set out the parties' respective arguments in
relation to this issue. I shall start with the issue whether and, if so,
over what period the evidence shows Hitler to have been anti-semitic. I
shall then rehearse the arguments as to the extent, if any, of his
knowledge of and responsibility for the policies of shooting, deporting
and exterminating Jews by means including gassing. For the sake of
clarity I shall deal with each of those policies in separate sections,
recognising that there is a degree of artificiality in such an approach.
The policy of exterminating the Jews was not introduced in phases. I
recognise also that there is an overlap between the questions with which
this section is concerned and the issues addressed in section V
(especially at (vi)). Inevitably there will be some duplication.

Hitler's anti-semitism

The issue between the parties

6.3 Irving does not dispute that Hitler was deeply anti-semitic from at
least the end of World War I. But he claimed that, once Hitler came to
power, he lost interest in anti-semitism. Hitler had espoused anti-
semitism in the first place for reasons which were essentially
political, according to Irving. The Defendants case is that Hitler was
rabidly anti-semitic throughout and continued to play an active part in
overseeing and controlling anti-Jewish policy up to and including the
war years.

The case for the Defendants

6.4 Longerich examined in his report the genealogy of Hitler's role in
the persecution of the Jews. He began with the emergence of Hitler's
anti-Semitism after the First World War. In correspondence in 1919
Hitler outlined the differences between what he called emotional and
rational forms of anti-semitism. The latter form ultimately led Hitler
to call for the removal of the Jews altogether. By 1920 he was already
using terms such as extirpation, annihilation and extermination in
relation to the Jews. He referred to the Jews as a plague, an epidemic,
germ carriers, a harmful bacillus, a cancer and as maggots. In his
writings and speeches Hitler blamed the situation of Germany at the end
of the First World War on an international Jewish conspiracy. His basic
wish throughout had been by one means or another to remove the Jews from
German soil. As is evident from the Goebbels diaries, Hitler and
Goebbels devoted much time to the prosecution of anti-semitic policy.

6.5 In Mein Kampf, which was published in 1926, Hitler developed his
anti-semitism by placing his desire to remove the Jews in the context of
a wider theory of the struggle between races for living space. In
Hitler's view the Jews, lacking a state of their own, were parasites
trying to destroy those states which had been established by superior
races. This idea was developed in his 'Second Book' which was written in
1927 although not published in his lifetime. In his speeches in the late
1920's Hitler stated that Jews were not able to work productively
because they lacked a proper relationship with the soil. As a
consequence they were parasites and spongers. This did not prevent
Hitler from claiming that the Jews had achieved economic dominance and
the ability to control and manipulate the media to their own advantage.
He spoke of the need to eliminate the economic ascendancy of the Jews,
if necessary by means of their physical removal. Longerich asserted that
anti-semitism was an integral part of Hitler's Weltanshauung.

6.6 According to Longerich, when the Nazi party began to attract mass
support in the early 1930s, the anti-semitic element was played down for
political reasons. Even so, Hitler continued to refer to the Germans as
being poisoned by another people. From 1935 onwards Hitler's attitude
towards the Jews was reflected in the anti-semitic policies pursued by
the Nazi government. Longerich cited, by way of illustration of these
policies, Hitler's role in organising the boycott of Jewish businesses
on 1st April 1933 and the enactment between 1935 and 1937 of various
discriminatory laws. Jews were excluded from holding public office and
the practice of law. Quotas for Jewish pupils and students were brought
in. Longerich notes that after coming to power in 1933 there are
examples of Hitler exercising a moderate influence on Jewish policy but
in his view this was dictated by tactical considerations.

6.7 Hitler's anti-semitism is evident in his public statements in the
1930s. In his speech to the Reich Party Congress in 1937 Hitler talked
of Jewish-Bolshevist subversion. The pogrom of 9th November 1938,
Reichskristallnacht, marks the first occasion when Jews and their
property were subjected to serious and widespread violence and
destruction. I have already set out in section V(iii) and (iv) above the
reasons why the Defendants contend that Hitler approved and promoted the
pogrom. Hitler addressed the Reichstag on 30th January 1939 on the topic
of the Jewish question. He said:

     "In my life I have often been a prophet and was generally laughed
     at. During my struggle for power it was mostly the Jewish people
     who laughed at my prophecies that I would some day assume the
     leadership of the state and thereby of the entire Volk and them,
     among many other things, achieve a solution of the Jewish problem.
     I believe that in the meantime the then resounding laughter of
     Jewry in Germany is now choking in their throats.
     
     Today I will be a prophet again; if international Jewry within
     Europe and abroad should succeed once more in plunging the peoples
     into a world war, then the consequence will be not the
     Bolshevisation of the world and therewith a victory of Jewry, but
     on the contrary, the annihilation of the Jewish race in Europe".

On the Defendants' case, this was a theme to which Hitler reverted on
numerous occasions during the war as the Nazi line against the Jews
hardened. I have already referred in section 5(viii) to Hitler's
pronouncements on the Jewish question and I will not repeat them here.

Irving's response

6.8 As I have already indicated, Irving conceded, inevitably, that in
the early years Hitler was a profound anti-semite, although he claimed
that Goebbels's hatred for the Jews was more intense than that of
Hitler. He also accepted that anti-semitism was from the outset one of
the major planks of Nazi policy. However, he suggested that Hitler's
anti-semitism was cynical in the sense that he adopted it as a means of
getting power. Once he came to power, Hitler's anti-semitism receded.
Irving pointed to occasions when Hitler had interceded on behalf of
individual Jews. He even had a Jew on his staff. He retained General
Milsch, a half-Jew.

6.9 In relation to the public statements on which the Defendants rely as
evidence of Hitler's continuing anti-semitism after the establishment of
the Third Reich, Irving stance can be summarised as follows: he accepts
that on occasion Hitler used harsh language in relation to the Jews. But
Hitler's concern and objective in relation to the Jewish problem was
that it should be solved by their deportation and resettlement outside
the Reich. I have set out in some detail at section V(viii) and
elsewhere the reasons advanced by Irving for saying that the Defendants
have misinterpreted the public statements made by Hitler in relation to
the Jewish question. Irving argued that his description of Hitler as
"the best friend" the Jews had in the Third Reich was justified.

The policy of shooting of Jews

Introduction

Evidence of system and the scale of the shootings

6.10 It is common ground between the parties that over a period which
started in the summer of 1941 and ran on throughout 1942, vast numbers
of Jews within the area of the General Government (as occupied Poland
was now called) were killed by shooting. The Defendants contend,
principally through the reports and evidence of Browning and Longerich,
that large numbers of Jews were executed in this manner and that the
executions were carried pursuant to a systematic programme which Hitler
knew about and approved.

6.11 Irving accepts that the number of Jews who were executed was large
but disputes that it occurred on the scale alleged by the Defendants. He
accepts that the killing was systematic. After some hesitation he
conceded that the evidence which he has now seen indicates that Hitler
knew and approved what was going on.

6.12 Much of the material and documentary evidence relating to he
shooting in the East was destroyed. What remains suffices to establish
that (as Irving accepted) four mobile SS units called Einsatzgruppen
were established by Himmler's deputy, Heydrich, who was Chief of the
Security Police and Security Services. The Einsatzgruppen provided
information relating, amongst other things, to the number of Jews and
others who had been shot. The information was collated into reports
which were sent to Berlin where Heydrich's staff processed the
information into event reports (Ereignismeldungen). Activity reports
were also prepared. These documents represent the primary source of
knowledge about the shootings on the Eastern front up to the spring of
1942. In addition to the Einsatzgruppen, there were other units who were
also carrying out killings. For instance a police unit, presided over by
Jeckeln, who was a Higher SS and Police Leader, killed 44,125 persons in
August 1941. Other units carried out mass killings on a similar, if not
greater, scale.

6.13 On numerous occasions prior to the commencement of this trial, and
in the early stages of the present hearing, Irving claimed that the
shooting of the Jews in the East was random, unauthorised and carried
out by individual groups or commanders. Irving compared the shooting to
the tragic events at Mi-Lai during the Vietnam war. However, in the
course of the trial Irving radically modified his position: he accepted
that the killing by shooting had been on a massive scale of between
500,000 and 1,500,000 and that the programme of executions had been
carried out in a systematic way and in accordance with orders from
Berlin. On the vital question whether Hitler knew and approved the
shooting of the Jews in the East, Irving was equivocal. In the end I
understood it to be his position that he now accepts that Hitler did
know and approve what was going on. But that at the time when he was
writing about the treatment of the Jews in the East (which, as he
rightly stresses is the material time for purpose of evaluating the
Defendants' case against him) the available evidence did not implicate
Hitler. I shall therefore concentrate on the arguments advance by the
parties on that aspect.

Case for the Defendants

6.13 According to the Defendants, the sequence of events was broadly as
follows: on 19 May 1941 Wehrmacht guidelines were issued calling for
"ruthless, energetic and drastic measures" to be taken against amongst
others Jews generally. There was no explicit authorisation for
executions to take place. However, by his order of 2 July 1941, Heydrich
identified the categories of Jews to be killed. The instructions which
he issued to the Einsatzgruppen in a section of the order headed
"Executions" included the following categories who were to be shot:

     "To be executed are all functionaries of the Comintern (as well as
     all professional Communists)
     the higher middle and radical lower functionaries of the Party,
     the Central Committee,
     the district and regional committees
     people's commissars
     Jews in party and state functions
     other radical elements (saboteurs, propagandists, snipers,
     assassins and agitators etc"

At the same time Heydrich gave instructions for the surreptitious
promotion of pogroms in the Jewish ghettoes. The Einsatzgruppen were
instructed to foment local anti-Jewish elements to promote such pogroms
but without leaving any trace of Nazi involvement. Longerich pointed out
that, once pogroms have started, there is no way control can exercised
over those who will be killed.

6.14 Browning gave evidence that in the initial stages the Jews who were
targeted were males in leadership positions and in selected professions
(excluding doctors, who were spared, although not, according to
Browning, for military reasons). Longerich testified that in a state-run
economy there would have been a large number of Jews occupying positions
in the party or the state, perhaps hundreds of thousands. He stressed
the width of the last of the categories in Heydrich's order which
concludes with the potentially wide-ranging catch-all "etc". In effect,
according to Longerich, it permitted men in the field to carry out
executions at will.

6.15 In the event Heydrich's instructions were interpreted broadly: the
Einsatzgruppen reports show that large numbers of adult Jews were
straightaway put to death whether or not they held state or party
positions. Browning notes that professionals and other community leaders
were targeted. He cites as an example the report in July 1941 by
Einsatzgruppe C that "leaders of Jewish intelligentsia (in particular,
teachers, lawyers, Soviet officials) liquidated". A pointer towards the
escalation in the scale of shootings is to be found in a footnote to a
report by the leader of an Einsatzkommando, Jager, dated 2 August 1941.
Jager had advocated the ghettoisation of the Jews in the Ostland but his
superior, Stahlecker, informed him of the receipt of "general orders
from above which cannot be discussed in writing". Thereafter Jager's
Kommando shot Jews, including women and children, in sharply increased
numbers. So it would appear, say the Defendants, that such restrictions
as had been imposed on the Jews who were to be shot had been relaxed.

6.16 In August 1941 the killing campaign had escalated further to
include Jewish women and children. On 1 August 1941 an "explicit order"
was issued to SS units who were preparing to sweep the Pripet marshes by
Himmler:

     "All Jews must be shot. Drive the female Jews into the swamp".

Browning argued that the reply to those instructions by
Obersturmbannfuhrer Magill demonstrates that he well understood the
intention which lay behind them, namely that the Jews in question should
be killed:

     "Driving women and children into the swamps did not have the
     intended success because the swamps were not so deep that a sinking
     under could occur".

Longerich too interpreted the instructions as ordering the death of the
Jews in question including the women. But he agreed that they were not
of general application but rather were confined to the operation to
clear the Prpyat marshes. Even so, Longerich estimated the number killed
at about 14,000.

6.17 The Defendants say that the total numbers killed can be derived or
extrapolated from the reports based on information supplied by the
Einsatzgruppen. Those reports, if taken at face value, indicate that
each of the four groups reported having killed tens of thousands of Jews
in the latter months of 1941. Not all of the reports distinguish between
Jews and non-Jews but some do. Browning cites as a typical example the
so-called Jager report. That report gives as the number of non-Jews
killed by a single Kommando, Einsatzkommando 3 in Lithuania in the
period to December 1941 at 2,042, that is, barely 1.5% of the total
number of 134,000 odd reported to have been killed. Other reports
provide broadly similar proportions. Browning concluded that there is
compelling evidence to conclude that the overwhelming majority of the
people reported as executed were Jews. The Defendants rely, in support
of their contention that the shooting was carried out systematically,
upon the fact that reports of the shootings were sent regularly to
Berlin.

6.18 According to Browning, there was a further escalation in the
killing campaign from late September onwards, when Grossaktionen (large
scale actions) commenced in which whole Jewish communities were wiped
out. For instance 33,000 Jews in Kiev were killed on 29-30 September
1941. Not only were the Jewish inhabitants of the ghettos in large
cities exterminated, smaller towns and rural areas were also rendered
Judenfrei (free of Jews). Longerich testified that in the autumn of 1941
the programme of killing Jews moved into a second phase. Until then the
targets had been Soviet Jews, focussing initially on the intelligentsia
but then spreading to other Jews. He said that the evidence shows that
from the autumn of 1941 the killing was extended to Jews in parts of
Poland and in Serbia. In the spring and summer of 1942 the killing
extended even further afield. Stahlecker, reporting on 15 October 1941,
admitted that it had been realised from the start that ghettos would not
solve the Jewish problem and that "basic orders" had therefore called
for the most complete means possible of the Jews.

6.19 The Defendants rely on an exchange of correspondence which took
place in November and December 1941 as indicating what was the policy
towards the execution of Jews at this period. On 15 November 1941 Lohse,
Reichskomissar for the Eastern Territores, wrote to Rosenberg,
Reichsminister for those territories, informing him that he had
forbidden the "uncontrolled" execution of Jews in a town in Latvia
because they had not been carried out in a manner which was justified.
Lohse enquired whether there was a directive to liquidate all Jews in
the East irrespective of the economic interests of the Wehrmacht. The
response from Rosenberg's office on 18 December 1941 stated that
"clarification of the Jewish question has most likely been achieved by
now through verbal discussions". The letter continued that economic
considerations must be disregarded and that any question arising should
be settled directly with higher SS and police officers. Longerich
interpreted this exchange as an instruction to Lohse that in future the
SS were to have carte blanche to carry out executions of the Jews. No
instructions were given that mass shootings should not to take place in
future. To the contrary Rosenberg was confirming that mass-shootings
were to continue but in future they were to be carried out in a better
organised manner under the supervision of the SS. According to Longerich
this broadly tallies with the order referred to by Bruns in his account
of events following the shooting of the Jews in Riga on 1 December 1941.
I have set out in the section V(vii) of this judgment the account given
by Bruns of the order which he was told about, namely that shooting
shall be done more discreetly in future.

6.20 During the winter of 1941-2 there was a temporary lull in the
shootings in the areas outside the Baltic states, due in part to the
frozen ground preventing the digging of pits for burying the murdered
Jews and in part to the need to utilise Jewish labour. But elsewhere,
according to a situation report by Himmler in February 1942:

     "While the Jewish question in the Ostland can be seen as
     practically solved and cleansed, progress continues to be made on
     the clarification of this problem on other occupied territories in
     the east".

In the spring of 1942 the intensive campaign of killing was resumed. Its
scale can be judged by reference to a report dated 26 December 1942 (to
which I shall refer in more detail later) which stated that in the
Ukraine and Bialystok 363,211 Jews were exterminated over the four
months from August to November. By this time even Jewish labourers who
might have made a contribution to the Nazi war effort were not spared.

6.21 Further evidence for the existence of a systematic programme for
the mass killing of Jews is to be derived, according to the Defendants,
from what Longerich, on their behalf described as an extraordinary
speech by Himmler to SS officers at Posnan on 4 October 1943.
He said:

     "I also want to talk to you quite frankly about a very grave
     matter. We can talk about it quite openly among ourselves, but
     nevertheless we can never speak of it publicly. Just as we did not
     hesitate on 30 June 1934 to do our duty as we were bidden, and to
     stand comrades who had lapsed up against the wall and shoot them,
     so we have never spoken about it and will never speak of it. It was
     a natural assumption of tact - an assumption which, thank God, is
     inherent in us - that we never discussed it among ourselves, never
     spoke of it.. Most of you will know what it means to have a hundred
     or five hundred corpses lying together before you. To have been
     through this and - disregarding exceptional cases of human weakness
     - to have remained decent, that iw what has made us tough. This is
     a glorious page in our history, one that has never been written and
     can never be written".

Longerich accepted the suggestion put to him by Irving that Himmler may
have been trying to make his SS officers into accomplices after the
fact. But in the speech Himmler expressly acknowedged the widespread
killing operations in which the SS had been engaged.

6.22 Browning and Longerich conclude that there is in the Nazi documents
(some of which I have reviewed above) clearly visible evidence of a
programme for the systematic mass-murder of Jews in occupied Soviet
territory and in the General Government by shooting them. The explicit
goal of this policy was to cleanse the area, that is, to rid these
territories of Jews. The scale of the killing, say the Defendants was
awesome.


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