Newsgroups: alt.revisionism Reply-to: email@example.com Subject: Irving v. Penguin & Lipstadt: Judgment VI-03 Organization: The Nizkor Project Keywords: David Irving libel action Deborah Lipstadt Archive/File: people/i/irving.david/libel.suit/judgment-06.03 Last-Modified: 2000/04/11 6.55 Irving advanced a similar argument in relation to the message sent on 1 December 1941 by Himmler to Jeckeln, the SS chief stationed in Riga, following the shooting of the trainloads of German Jews on arrival in Kovno. This is dealt with at paragraph 5.107-8 above. Browning and Longerich place an opposite interpretation on the Himmler's message to Jeckeln: it was reprimanding Jeckeln for the shooting of the Jews who had arrived in Minsk the previous day from Berlin. Longerich agreed that the message indicates that Jeckeln had exceeded his authority but suggests that so modest a punishment indicates that Himmler was not unduly concerned by the murder of so large a number of Jews. Longerich agreed that the killing of German Jews ceased for some time afterwards. He did not, however, accept that the fact that Jews took provisions with them on the train indicates that there was no intention to kill them. The Jewish Commission paid for the provisions and no doubt the Jews were deceived into believing that they were being taken to a new life in the East. Browning argued that the message, relating as it does to killings in Riga, indicates that the shooting of the Jews in Kovno had been authorised (which is why Jeckeln was not disciplined). Browning claimed that there had been a change of policy afterwards because of the concern felt about German Jews being killed. The guidelines enunciated the new policy. 6.56 In relation to Himmler's appointment book entry for 18 December 1941, Irving accepted that it this context ausrotten means "annihilate" but he quarrelled with the translation of als Partisanen as "to be annihilated as partisans", contending that it really means "as partisans", that is, annihilated because and to the extent that they are partisans. Browning retorted that the primary meaning of als is "as" and that the policy was clearly not to shoot only Jewish partisans because the records show that thousands of women and children were also shot. In relation to that note Irving in the course of his cross-examination of Longerich made for the first time the further suggestion that Himmler may have made the notation als Partisanen auszurotten, not because that was something that he and Hitler had discussed and agreed upon, but rather because it had for some time been Himmler's standard attitude that Jews should be exterminated as partisans. Himmler had expressed that view on previous occasions. So, Irving argued, the note expresses no more than Himmler's own view and does not implicate Hitler. On reflection Irving did not pursue this suggestion. Later in the cross- examination Irving fell back upon the suggestion that the issue was discussed between Himmler and Hitler but that the initiative for shooting the Jews as partisans came from Himmler and not from Hitler. He argued that this is consistent with the passive attitude which Hitler adopted towards the Jewish question. 6.57 Irving pointed out that in a number of their reports the Einsatzgruppen give pretexts for killing Jews. This, argued Irving, is inconsistent with a policy of killing Jews indiscriminately. But Longerich met this suggestion by referring to the so-called Jager report of Einsatzkommando 3 of 1 August 1941 that large numbers of Jews (including many women and children) had been executed without any excuse or pretext being given. 6.58 Irving did not initially accept that the endorsement vorgelegt on report no. 51 of 26 December 1941 meant that Hitler read the document. He asked why else would it be laid before him twice (as the endorsement suggests it was). The Stalingrad crisis was at its height at this time. But later he agreed that it was highly likely to have been shown to him. Irving conceded that it followed that Hitler was to that extent implicated in the murder of 363,000 mentioned in that report. 6.59 When objection was taken on behalf of the Defendants to this sustained line of questioning on the ground that Irving was resiling from admissions he had previously made in cross-examination as to the state of Hitler's knowledge of the shooting, Irving agreed to set out his case in writing. Irving thereupon took the position that, in regard to Eastern European and Russian Jews, Hitler had authorised the summary execution of unspecified numbers of Jewish/Bolshevik intelligentsia and leaders; that Hitler was probably informed of "anti-partisan" operations, though not on a regular basis; that there is evidence that no secret was made of the inclusion of large numbers of (non-German) Jews in the resulting body counts of "partisans". As regards Western European and German Jews, Irving's restated case is that there is no clear or unambiguous evidence that Hitler was aware of any mass murders. The policy of deporting the Jews Introduction 6.60 Whilst it would not be right to say that there is no issue between the parties in relation to the existence of a policy of deporting Jews eastwards, the differences in the parties' respective case appear to me to be comparatively unimportant. The topic can therefore be taken quite shortly. 6.61 According to Longerich, the Nazi policy towards the Jews evolved over the years. In the 1920s and 30s various legal and economic sanctions were applied to Jews in Germany with a view to compelling them to emigrate. Longerich draws attention to various statements made by Hilter at this time which foreshadow a more radical solution to the Jewish question. Towards the end of the 1930s pressure for the emigration and even expulsion of the Jews intensified. The term Endlosung (final solution) came into use, carrying with it the implication that all Jews would be removed from Nazi Germany. 6.62 Hitler's attitude at this time is reflected in an entry in Goebbels's diary for 24 August 1938: "We discuss the Jewish question. The Fuhrer approves my procedures in Berlin. What the foreign press writes is insignificant. The main thing is that the Jews be pushed out. In 10 years they must be removed from Germany. But in the interim we still want to keep the Jews here as pawns". 6.63 From the outbreak of war in September 1939 the policy towards the European Jews in those countries invaded by the Nazis was to find for them a "territorial solution", that is, to find an area at the periphery of the Nazi empire to which the Jews might be deported and where they might very well perish. At this stage, Longerich agrees, the policy was not a homicidal one, although he adds the rider that there already existed what he called the "perspective" of mass murder. His argument is that this is discernible from the comments made at the time which suggest that it was recognised that it was unlikely that the Jews would survive for long after their deportastion. They would perish through disease or starvation. 6.64 It is the Defendants' case, largely although not entirely accepted by Irving, that the hard-line policy towards the Jews manifested itself when the Nazis invaded and conquered Poland in September 1939. There were two aspects: the first was the establishment of a reservation in Poland between the Vistula and the Bug into which all Jews under Nazi domination would be deported. The second was a programme to execute selected Jews in Poland as a means among others of rendering the country leaderless and destroying it a nation. According to Longerich, the first aspect commenced with the deportation from about the autumn of 1941 of Jews from the Central Europe into the ghettoes in Eastern Europe. The intention was to deport them further east later, probably in the spring of 1942, when they would perish. 6.65 On 18 September Himmler wrote to the Gauleiter in Warthegau, Greiser, informing him: "The Fuhrer wishes that the Old Reich and the Protectorate be emptied and freed of Jews from west to east as quickly as possible. I am therefore striving to transport the Jews of the Altreich and the Protektorat in the Eastern territories that became part of the Reich two years ago. It is desirable that this be accomplished by the end of this year, as a first and initial step in deporting them even further to the East next spring. I intend to remove a full 60,000 Jews of the Altreich and the Protektorat to the Litzmannstadt ghetto for the winter. This has, I have heard, the space to accommodate them". Himmler forewarned Greiser of the arrival of Jewish transports from the Reich. Hitler appears therefore to have initiated the programme of deportation some time before mid-September 1941. 6.66 The deportations, which were initially to ghettoes in Lodz, Rikga and Misk, began in early to mid-October 1941. Although six trainloads of Jews were summarily executed on their arrival at Kovno and in Riga, Longerich agreed that the policy at this time in relation to European Jews was to deport them and not to kill them or at least not to kill them on the spot. The Defendants say that vast numbers of Jews were deported from the Altreich, the Protektorat, Austria, France, Slovakia, Croatia and Romania to the East. Many of these European Jews may have been led to believe that they were going to a new life in the East. That explains why they travelled with food and in some cases with the tools of their trade (although Longerich points out that the food was provided by the Jewish Commission and not by the Nazis). Irving put it to Browning (and Browning accepted) that the extant records relating to deportations, consisting mainly of transport documents, are incomplete. In consequence, suggested Irving, the estimates of the numbers deported vary enormously. Irving maintains that the scale of the intended deportation was nowhere near as comprehensive as the Defendants maintain. In France for example estimates of the number of deportees range from 25,000 to 200,000. (Browning asserted that the consensus now is 75,000 French Jews were deported). 6.67 Irving recognised the emergence of a policy of wholesale deportation of European Jews. He accepted that Hitler was an advocate of this policy. Indeed Irving's case is that the deportation of the Jews continued to be Hitler's preferred solution to the Jewish question until 1942. The so-called "Magagascar plan", whereby the Jews were to be deported from the Reich to the island off the east coast of Africa, was not abandoned until then. Thereafter it is Irving's case that Hitler wanted the entire Jewish question put off until after the end of the war (see section V(ix) above under the heading "The Schlegelberger note"). Whether or not Irving is right about that, he firmly rejected the contention for the Defendants that the evidence shows that there was to the knowledge of Hitler a genocidal implication underlying the policy of deportation. Genesis of gassing programme The origins of the use of gas by the Nazi regime 6.68 In order to pinpoint the origins of the Nazi practice of killing by the administration of poison gas, it is necessary to go back some years. There was a measure of agreement between the parties that the Nazis moved from the gassing of the disabled to the gassing of able-bodied Jews in the period from 1939 to early 1942. 6.69 As Irving accepted, the so-called "euthanasia programme" was authorised by Hitler in September 1939. It permitted specified doctors to put to death those suffering from grave mental or physical disabilities. Thousands were killed, mostly by the administration of carbon monoxide gas kept in bottles. In addition, however, many were killed using gas vans which the victims of the programme were induced to enter, whereupon the exhaust of the vans was pumped inside killing those inside within 20 minutes or so. The euthanasia programme was discontinued on Hitler's order in August 1941 because it was causing public disquiet. The use of the gas vans to kill healthy Jews 6.70 As Irving also accepted, the gas vans and associated personnel were then moved to the East and placed at the disposal of Globocnik, the SS officer in charge of police in Lublin, where they arrived in late 1941 and early 1942. In September 1941 there is evidence that experimental gassing of Soviet POWs and others took place in Auschwitz. On 25 October 1941 Himmler met Globocnik at Mogilev, where an extermination camp was planned. On the same day Wetzel of the Ostministerium in Berlin met, firstly, Brack, a senior official of the Reich Chancellery who had been involved in the euthanasia programme, and later Eichmann. Wetzel drafted a letter to Rosenberg (Reichsminister for the Occupied Eastern Territories) and Lohse (Reichskomissar for the Ostland) that Brack was prepared to help set up gassing apparatuses in Riga and that there were no objections if Jews who were not fit for work were "removed" by these apparatuses. On the same evening Hitler met Himmler and Heydrich. 6.71 The experimental use of the gas vans continued. In November 1941 30 prisoners were killed by exhaust fumes from a van at Sachsenhausen. There was debate in the course of the evidence about the number of vans employed and their killing capacity. Longerich maintained that a minimum of six vans were used. Irving suggested only three were ever built. The Defendants adduced in evidence a report from a sergeant in the motor pool dated 5 June 1942, which records that 97,000 had been killed by means of the use of three vans over the preceding six months. Irving made a number of observations about the document designed, as he put it, to plant suspicion about it. For instance he queried how 97,000 could have been killed over that period, when according to court records only 700 were killed in gas vans in an action "lasting several days" at the end of November 1991. The figure of 97,000 struck Browning as perfectly feasible. He testified that the carrying capacity of the vans ranged from 30 to 80 people and that the arithmetic indicates that the three vans would have been capable of putting 97,000 to death in a period of 172 days. As to the 700 killed over several days at the end of November 1941, Longerich explained that after a period of experimentation, the Nazis improved their technique. In the end Irving accepted the authenticity of the sergeant's report. 6.72 Whilst Irving does not dispute that homicidal use was made of gas by the Nazis during the euthanasia programme and that thereafter the vans were put to use in the East to kill Jews in increasing numbers, he does quarrel with the Defendants' estimates as to the numbers killed. What is more important, Irving disputes the claim advanced by the Defendants that Hitler was kept informed of the killing of Jews by gas and approved it. I shall therefore summarise the parties' respective arguments on these contentious issues. The Defendants' case as to the scale on which Jews were gassed to death at camps excluding Auschwitz and the extent, if any, of Hitler's knowledge of and complicity in the killing. 6.73 The Defendants accept that initially Hitler's attitude towards the problem of finding a solution to the problem of the Jewish "bacillus" was that the Jews should be deported from the Reich. They contend, however, that there is circumstantial and documentary evidence that, from about the autumn of 1941, this policy was reversed and that, with the knowledge of Hitler and at his instigation, the policy was adopted of deporting Jews en masse from Europe and killing them in death camps on the eastern borders of the Reich. It was the contention of Longerich that, as the killings of Soviet Jews by shooting spread in the period from autumn 1941 to spring 1942 from the Soviet union to other regions, in particular to the Warthegau, Lublin, Riga, Minsk and Serbia, so in these same areas plans were made for the construction of gas killing facilities. In so far as it related to the area of the General Government this operation was code-named Operation Reinhard. 6.74 There is little mention of Operation Reinhard or Aktion Reinhard in the surviving contemporaneous documents. Browning referred in his report to a document dated 18 July 1942 mentioning "Einsatz Reinhard". There are several other documents marked "AR". According to the Defendants little documentary evidence survives because the records relating to it were ordered to be destroyed in January 1944. Nonetheless, say the Defendants, the evidence does establish that deportation of European Jews to ghettoes and thence to camps at Chelmno, Semlin, Belzec, Sobibor and Treblinka took place on a massive scale. The Defendants contend that the assignment to construct the death camp at Belzec was entrusted by Himmler to Globocnik at a meeting between them on 13 October 1941. Although the document recording the proposal for their meeting referred to taking "security-political steps" against the Jews and to "limiting their influence", Longerich contended that it is legitimate to infer that the plan to build the Belzec death camp originated at this meeting. Globocnik was looking for more radical solutions for the Jewish question and the building work started at Belzec started soon afterwards. 6.75 A start was made on the construction of Belzec in October 1941. Another huge complex of gas chambers was planned (but not proceeded with) at Mogilev. Similar facilities were commissioned at Chelmno, Sobibor and Treblinka. Browning testified that the use of the gas vans at camps, starting at Chelmno and Semlin, was an intermediate phase, coming between the shootings by the Einsatzgruppen and the use of primitive gas chambers at those camps and elsewhere. The custom-built gas chambers at Auschwitz came later. On arrival at the camps the great majority of these Jews were killed in gas chambers or by other means. Of these camps Chelmno was situated to the north-west of Lublin; Semlin was outside Belgrade; Belzec and Sobibor were in what was then south-eastern Poland not far from Lublin and Treblinka is north-east of Warsaw close to the frontier at that time with Russia. Longerich testified that it might in broad terms be said that the policy of exterminating the Jews evolved out of the policy of deporting them. Indeed it is, he claimed, impossible to draw a demarcation line between the two policies. The Nazis were well aware that the policy of deportation to the East resulted in the death from starvation or disease of many of those who were deported. Longerich termed this Vernichtung durch Arbeit (annihilation through work). There was some debate whether that term had been used at the time. But in the end it was common ground that it mattered little whether such a label was used. Longerich was clear in his opinion that such a policy as effectively equivalent to a policy of outright killing. 6.76 Other aspects of Operation Reinhard were the collection and use of materials belonging to the Jews (watches and the like) and the selective use of Jewish labour. It was an SS operation under the direction of Globocnik, who was answerable to Kruger, chief of police in the General Government, who in turn was answerable to Himmler. According to Browning, there is evidence that Globocnik on occasion dealt directly with Himmler. 6.77 Longerich contended that it appeared from the evidence that the Jews who were sent to the death camps were in the first instance local Jews from local villages and ghettos in the region. This phase commenced at Chelmno on 8 December 1941, from which date about 140,000 Jews from the Warthegau were gassed there. The same occurred at Belzec (where the gassing, mainly of Jews from the area of Lublin, started in March 1942), Sobibor (where gassing started in May 1942) and Treblinka (where the gassing started in July 1942). The extermination of these local Jews made way in the ghettos for the European Jews to replace them. 6.78 Gassing commenced at Auschwitz between September and December 1941, when 600 Soviet prisoners of war were killed by the administration probably by means of bottles of Zyklon-B gas in the basement of Block II. Irving, by reference to a passage from a book by van Pelt referring to the death of Soviet Jews because the lack of hygiene at the camp, suggested that the deaths were not due to poisoning by gas. 6.79 At the same time as the local Jews were being put to death in these camps, the programme of deporting German Jews (that is, Jews from those parts of Europe in Nazi control) to the East was being implemented. These Jews (or those of them who were judged unfit for labour) were initially sent to ghettos but they were ultimately transported onwards to the camps where they were killed in the gas chambers, principally at Belzec. The liquidation of the German Jews ran from the spring of 1942 onwards. This was the second phase of the extermination programme. It was, said Longerich, a systematic programme of extermination, albeit one that gradually emerged. 6.80 What is the evidence for mass extermination of Jews at those camps? The consequence of the absence of any overt documentary evidence of gas chambers at these camps, coupled with the lack of archeological evidence, means that reliance has to be placed on eye witness and circumstantial evidence, which I shall shortly summarise. In giving an account of the Defendants' case as to the scale of the exterminations, I shall also summarise their argument that Hitler was complicit in the mass murder. The starting point is the evidence, such as it is, which is contained in contemporaneous documents. 6.81 I have referred at paragraph 6.70 above to the meeting which took place between Hitler and Himmler and Heydrich on 25 October 1941. Although the plan to construct gas chambers at Riga was not implemented, it is further evidence, say the Defendants, of the genesis of a policy, agreed at a high level, to use gas as a method of extermination. 6.82 From about that date, according to the Defendants, Hitler made repeated references to the extermination of the Jews and to doing away with them. On 16 November 1941 Rosenberg met Hitler and Himmler, who the next day (according to his Dienstkalendar) told Heydrich by telephone that he had discussed the Beseitigung (doing away with) of the Jews. Two days later Rosenberg gave a confidential briefing to the press in which he spoke of the biological eradication of the whole of Jewry in Europe. From this date onwards, according to the Defendants, Hitler's pronouncements on the Jewish question, become more frequent and increasingly blunt. 6.83 The Defendants attach significance to Hitler's speech to the Gauleiter on 12 December 1941 (already referred to in section V) when, according to Goebbels's diary, he said: ". Concerning the Jewish question the Fuhrer is determined to make a clean sweep. He prophesied that, if they were once again to cause a world war, the result would be their own destruction. That was no figure of speech. The world war is here, the destruction (Vernichtung) of the Jews must be the inevitable consequence. The question must be seen without sentimentality. We are not here in order to have sympathy with the Jews, rather we sympathise with our own German people. If the German people have now once again sacrificed as many as 160,000 dead in the Eastern campaign, then the authors of this bloody conflict must pay with their lives". According to Browning, this speech stemmed from the recognition that an early end to war was no longer on the cards. It made clear that the Nazis would nonetheless proceed with the extermination of Jews generally and not just the Jews in the occupied eastern regions. 6.84 As already stated in section V above, Hans Frank, General Governor of the General Government, attended the meeting on 12 December 1941 (and, according to Browning, may well have had a meeting with Hitler). Four days later he passed on what he had learned in Berlin to his subordinates, telling them what Hitler had said and adding: "But what is to happen to the Jews? Do you believe that they will be lodged in the settlements in the Ostland? In Berlin we were told: why all this trouble, we cannot use them in the Ostland or the Reichskommissariat either; liquidate them yourselves! Gentlemen, I must ask you: arm yourselves against any thoughts of compassion. We must destroy the Jews, wherever we encounter them and wherever it is possible, in order to preserve the entire structure of the Reich . [for the omitted words see below] .nonetheless we will take some kind of action that will lead to a successful destruction, and indeed in conjunction with the important measures to be discussed in the Reich". The Defendants rely on what Frank said as further evidence of the emerging policy of destroying the Jews by killing them.
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