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Subject: Irving v. Penguin & Lipstadt: Judgment XIII-03
Organization: The Nizkor Project
Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-13.03
Last-Modified: 2000/04/11

13.58 It inexorably follows that Irving was misrepresenting the
historical evidence when he told audiences in Australia, Canada and the
US (as he accepted he did) that the shooting of Jews in the East was
arbitrary, unauthorised and undertaken by individual groups or
commanders.

The deportation of the Jews (paragraphs 6.60-67 above)

13.59 As I have already indicated, there is little dispute between the
parties that the policy of deportation emerged and evolved along the
lines described in the report of Longerich. I have already rejected
Irving's argument that the evidence, whether in the form of the
Schlegelberger note or otherwise, supports his contention that in early
1942 Hitler decided that the entire Jewish question should be postponed
until after the war. In any event Irving does not dispute that the
deportation of the European Jews continued apace in the months and years
after the Wannsee conference. The real issue is whether their
deportation was a prelude to their extermination and, if so, on what
scale such extermination took place.

The scale on which Jews were gassed to death camps including the
Reinhard Camps but excluding Auschwitz (paragraphs 6.73-144 above)

13.60 There is no dispute that the use by the Nazis of gas to kill human
beings had its origins in the euthanasia programme. When that ended, the
gas vans were diverted to the Eastern territories where (as Irving
accepts) they were used to kill healthy Jews in substantial numbers.
Again there is some argument as to the numbers killed in the gas vans:
Irving was reluctant to commit himself to an estimate of the number
killed but he accepted that it ran into thousands. In the circumstances
I do not intend to explore any further the evidence as to the number of
those killed in vans.

13.61 Although strictly the camps at Chelmno and Semlin did not form
part of Operation Reinhard, which was confined to the area of the
General Government, I shall for convenience refer collectively to those
two camps and to the camps at Belzec, Sobibor and Treblinka as "the
Reinhard Camps". In relation to the Reinhard camps there are two issues:
the first is how many Jews were gassed to death at these camps. The
second is whether Hitler knew or approved of the extermination of Jews
at these camps. (I will deal separately with the evidence about
Auschwitz).

13.62 Addressing first the issue of the scale of the killings by gas at
the Reinhard camps, it was Longerich's opinion that the policy of
exterminating Jews by the use of gas was an extension or development of
the programme of shooting Jews which had commenced in the late autumn of
1941. As has been seen, Irving conceded that Jews were shot in enormous
numbers over the ensuing months. In paragraphs 6.75 to 6.105 above I
have endeavoured to trace and summarise the evidence on which the
Defendants rely in support of their case that the gassing which took
place at the Reinhard Camps was on a truly genocidal scale. The evidence
can be categorised as documentary (although most of the Reinhard
documents were destroyed); demographic and the accounts of eye-
witnesses. On the basis of this evidence both Browning and Longerich
conclude that many hundreds of thousands died in the gas chambers at the
Reinhard camps.

13.63 I have summarised at paragraphs 6.106-8 above some of the
arguments deployed by Irving for saying that the killing at the Reinhard
camps was on nothing like the scale contended by the Defendants. But, as
pointed out at paragraph 6.109-110, Irving did ultimately accept that
the camps at Chelmno, Treblinka, and Sobibor were Nazi killing centres.
He claimed, disingenuously in my opinion, that he made this concession
so as progress the trial and thereby to enable the issue regarding
Auschwitz to be examined in greater detail. Be that as it may, I
understood Irving to accept that hundreds of thousands of Jews were
killed at the Reinhard camps to which I have referred. I readily
acknowledge that he disputed the estimates put on the number gassed to
death by Longerich and Browning. But, given the huge number of deaths
accepted by Irving, little appears to me to turn on the disparity in
their respective estimates.

Evidence of Hitler's knowledge of and/or complicity in the extermination
of Jews in the gas chambers at the Reinhard camps (paragraphs 6.81-95and
6.114-144)

13.64 I turn to the issue regarding Hitler's knowledge of and complicity
in the gassing programme at the Reinhard camps. In my view that issue
has to be examined in the light of three propositions, each of which I
understood to be accepted by Irving. The first is that, from about
November 1941, the Nazis had been engaged in carrying out a programme,
which Hitler knew about and authorised, of killing by shooting many
hundreds of thousands of Jews and others, initially in Russia and later
spreading to towns in the Warthegau (the area of Poland incorporated
into the Reich), the General Government (the remainder of Poland) and
Serbia. The second is that hundreds of thousands of Jews were killed in
the death camps set up under Operation Reinhard. The third is that, as
Irving explicitly accepted, Hitler cannot have remained in ignorance of
the extermination programme after October 1943. In the light of those
propositions it is legitimate to formulate the question in this way:
does the evidence establish or suggest that, whilst he approved of the
genocidal policy of shooting Jews in the East, Hitler did not approve or
sanction the genocidal use of the gas chambers at the Reinhard camps
over the months from December 1941 until October 1943, and was also kept
in ignorance that gassing on that scale was taking place.

13.65 I have used the phrase "kept in ignorance" in the preceding
paragraph because it is part of the positive case advanced by Irving
that the genocidal use of the gas chambers at the Reinhard camps was
planned and implemented by Heydrich and overseen by Himmler. Does the
evidence support Irving's contention that Hitler was kept in ignorance
of the manner in which Heydrich and Himmler were setting about solving
the Jewish question?

13.66 At paragraphs 6.81 to 6.105 above I have examined some of the
documents on which the Defendants rely as evidence of Hitler's
involvement in the extermination at the Reinhard camps, starting with
the meeting between Hitler, Himmler and Heydrich on 25 October 1941 and
culminating in the letter written in 1977 by Hitler's former personal
secretary. Against those documents must be set Irving's comment, which I
accept is accurate, that there is no reference to be found to a Hitler
Befehl (Hitler order) authorising the extermination of Jews by gassing
at the Reinhard Camps . But, given the secrecy which surrounded the
operation of the gas chambers, I would not have expected to have found
such a document. For the same reason I consider that Irving's argument
as to Hitler's ignorance derives little assistance from the fact that he
is able to point to a number of documents where Hitler can be found
still talking of the Madagascar plan or deportation to some other
destination. The need for secrecy required the use of camouflage
language when the fate of Jews was under public discussion.

13.67 My conclusion on this issue is that the evidence discloses
substantial, even if not wholly irrefutable, reasons for concluding not
only that Hitler was aware of the gassing in the Reinhard Camps but also
that he was consulted and approved the extermination. My reasons for
arriving at this conclusion are, firstly, that if (as Irving accepts)
Hitler knew and approved the programme of shooting Jews, it is
reasonable to suppose that he would have been consulted about and
approved a policy to exterminate them by another means, namely by the
use of gas. I consider that there are a number of documents which
suggest that Hitler knew and approved the implementation of the new
policy: for example the protocol of the Wannsee conference, at which the
extermination programme was discussed, records Heydrich in his opening
remarks that he was speaking with the authority of Hitler. But the main
reason for my conclusion is that it appears to me to be unreal to
suppose that Himmler would not have obtained the authority of Hitler for
the gassing programme (and even more unlikely that he would have
concealed it from his Fuhrer). Himmler's Dienstkalendar provides clear
evidence of the regularity of the meetings between Hitler and Himmler
and of their having discussed the Jewish question at the time when
Himmler was actively supervising the setting up and operation of the gas
chambers in the Reinhard Camps. I therefore accept the evidence of
Longerich and Browning which I have summarised at paragraph 6.105 above.

Auschwitz

Identifying the issue

13.68 When the trial started, it appeared from Irving's written
statement of case that he was adhering to the position often adopted in
his speeches about Auschwitz, namely that no gas chambers were
commissioned or operated at the camp and that in consequence no Jew lost
his or her life in gas chambers there.

13.69 As I have already observed in paragraph 7.11 above, in the course
of the trial Irving modified his position: he accepted that there was at
least one gas chamber (or "cellar") at Auschwitz, albeit used solely or
mainly for the fumigation of clothing. He also accepted that gassing of
Jews had taken place at the camp "on some scale". He did not indicate on
what scale. Irving firmly denied the claim advanced by van Pelt that
500,000 Jews were killed in morgue 1 of crematorium 2. The case for the
Defendants on the other hand was, as I have said, that almost one
million Jews were put to death in the gas chambers of Auschwitz.

13.70 In these circumstances the central question which, as it appears
to me, falls to be determined is whether or not the evidence supports
the Defendants' contention that the number of deaths ran into hundreds
of thousands or whether Irving is right when he claims that the killing
by gas was on a modest scale.

The scale of the killing of Jews in the gas chambers

13.71 I have to confess that, in common I suspect with most other
people, I had supposed that the evidence of mass extermination of Jews
in the gas chambers at Auschwitz was compelling. I have, however, set
aside this preconception when assessing the evidence adduced by the
parties in these proceedings.

The "convergence" of evidence

13.72 The case for the Defendants, summarised above, is that there
exists what van Pelt described as a "convergence" of evidence which is
to the ordinary, dispassionate mind overwhelming that hundreds of
thousands of Jews were systematically gassed to death at Auschwitz,
mainly by the use of hydrogen cyanide pellets called Zyklon-B. I have
set out at paragraphs 7.15 to 7.74 above the individual elements which
make up that convergence of evidence. I have done so at some length
(although not at such length as did van Pelt in his report) because it
appears to me to be important to keep well in mind the diversity of the
categories and the extent to which those categories are mutually
corroborative.

13.73 I recognise the force of many of Irving's comments upon some of
those categories. He is right to point out that the contemporaneous
documents, such as drawings, plans, correspondence with contractors and
the like, yield little clear evidence of the existence of gas chambers
designed to kill humans. Such isolated references to the use of gas as
are to be found amongst these documents can be explained by the need to
fumigate clothes so as to reduce the incidence of diseases such as
typhus. The quantities of Zyklon-B delivered to the camp may arguably be
explained by the need to fumigate clothes and other objects. It is also
correct that one of the most compromising documents, namely Muller's
letter of 28 June 1943 setting out the number of cadavers capable of
being burnt in the incinerators, has a number of curious features which
raise the possibility that it is not authentic. In addition, the
photographic evidence for the existence of chimneys protruding through
the roof of morgue 1 at crematorium 2 is, I accept, hard to interpret.

13.74 Similarly Irving had some valid comments to make about the various
accounts given by survivors of the camp and by camp officials. Some of
those accounts were given in evidence at the post-war trials. The
possibility exists that some of these witnesses invented some or even
all of the experiences which they describe. Irving suggested the
possibility of cross-pollination, by which he meant the possibility that
witnesses may have repeated and even embellished the (invented) accounts
of other witnesses with the consequence that a corpus of false testimony
is built up. Irving pointed out that parts of some of the accounts of
some of the witnesses are obviously wrong or (like some of Olere's
drawings) clearly exaggerated. He suggested various motives why
witnesses might have given false accounts, such as greed and resentment
(in the case of survivors) and fear and the wish to ingratiate
themselves with their captors (in the case of camp officials). Van Pelt
accepted that these possibilities exist. I agree.

The documentary evidence

13.75 Vulnerable though the individual categories of evidence may be to
criticisms of the kind mentioned in the preceding paragraphs, it appears
to me that the cumulative effect of the documentary evidence for the
genocidal operation of gas chambers at Auschwitz is considerable.

13.76 The nature of the redesign in 1942 of crematorium 2 appears to me,
for the reasons summarised in paragraph 7.59 to 7.63 above, to
constitute powerful evidence that the morgue was to be used to gas live
human beings who had been able to walk downstairs. Few and far between
though they may be, documents do exist for which it is difficult to find
an innocent explanation. I have in mind for example the minute of the
meeting of 19 August 1942 (paragraph 7.66 above), which refers to
Badenanstalten fur Sonderaktionen ("bath-houses for special actions")
and the so-called Kinna report (paragraph 7.67 above). As to Muller's
letter about the incineration capacity of the ovens (see paragraphs 7.69
and 7.106 above), it does not seem to me that, despite its unusual
features, a dispassionate historian would dismiss it out of hand, as did
Irving, as a forgery. Van Pelt believed it to be genuine. He pointed out
that there are two copies in different archives (in Domburg and in
Moscow, where it has been since 1945). It was used at the trial of Hoss
in 1948.If it had been forged before 1948, it would have been unlikely
that the capacity would have been given as 4,756 corpses per day since
that is a lower figure than the figures published by the Russians and
the Poles at the end of the war. I accept the reasoning of van Pelt. If
the Muller document is authentic, it is further cogent evidence of
genocidal gassing because the capacity to which Muller refers cannot
have been needed to incinerate those who succumbed to disease. Finally,
there is the scientific evidence gathered by the Polish Central
Commission in 1945-7 (paragraph 7.2 above) and the evidence of the
Markiewicz report (see paragraphs 7.73 to 7.74 above).

The eye-witness evidence

13.77 Whilst I acknowledge that the reliability of the eye-witness
evidence is variable, what is to me striking about that category of
evidence is the similarity of the accounts and the extent to which they
are consistent with the documentary evidence. The account of, for
example, Tauber, is so clear and detailed that, in my judgment, no
objective historian would dismiss it as invention unless there were
powerful reasons for doing so. Tauber's account is corroborated by and
corroborative of the accounts given by others such as Jankowski and
Dragon. Their descriptions marry up with Olere's drawings. The evidence
of other eye-witnesses, such as Hoss and Broad, would in my view appear
credible to a dispassionate student of Auschwitz. There is no evidence
of cross-pollination having occurred. It is in the circumstances an
unlikely explanation for the broad similarity of the accounts in this
category.

13.78 My conclusion is that the various categories of evidence do
"converge" in the manner suggested by the Defendants. I accept their
contention which I have summarised in paragraph 7.75 above. My overall
assessment of the totality of the evidence that Jews were killed in
large numbers in the gas chambers at Auschwitz is that it would require
exceedingly powerful reasons to reject it. Irving has argued that such
reasons do exist.

The Leuchter report

13.79 The reason why Irving initially denied the existence of gas
chambers at Auschwitz was, as has been seen, the Leuchter report. I have
summarised in some detail the findings made by Leuchter at paragraphs
7.82 to 7.89 above. I will not repeat myself. I have also set out at
paragraphs 7.104 to 7.108 above the reasons why van Pelt on behalf of
the Defendants dismissed the Leuchter report as flawed and unreliable.
Those reasons were put to Irving in cross-examination. It is a fair
summary of his evidence to say that he accepted the validity of most of
them. He agreed that the Leuchter report was fundamentally flawed. In
regard to the chemical analysis, Irving was unable to controvert the
evidence of Dr Roth (summarised at paragraph 7.106 above) that, because
the cyanide would have penetrated the brickwork and plaster to a depth
of no more than one tenth of the breadth of a human hair, any cyanide
present in the relatively large samples taken by Leuchter (which had to
be pulverised before analysis) would have been so diluted that the
results on which Leuchter relied had effectively no validity. What is
more significant is that Leuchter assumed, wrongly as Irving agreed,
that a greater concentration of cyanide would have been required to kill
humans than was required to fumigate clothing. In fact the concentration
required to kill humans is 22 times less than is required for fumigation
purposes. As indicated in paragraph 7.105 above, and as Irving was
constrained to accept, Leuchter's false assumption vitiated his
conclusion. Irving conceded the existence of many other factual errors
in the Leuchter report.

13.80 In the light of the evidence of van Pelt and Irving's answers in
cross-examination, I do not consider that an objective historian would
have regarded the Leuchter report as a sufficient reason for dismissing,
or even doubting, the convergence of evidence on which the Defendants
rely for the presence of homicidal gas chambers at Auschwitz. I have not
overlooked the fact that Irving claimed that Leuchter's findings have
been replicated, notably in a report by Germar Rudolf. But that report
was not produced at the trial so it is impossible for me to assess its
evidential value.

Holes in the roof of morgue 1 at crematorium 2?

13.81 The strength of the criticisms of the Leuchter report may explain
why, as the trial progressed, the emphasis of Irving's case on Auschwitz
appeared to shift from the absence of cyanide in the brick and plaster
to the roof of morgue 1 at crematorium 2. As I have explained in
paragraphs 7.91 to 7.93 above, Irving argues that there is no evidence
of the presence of the chimneys or ducts by means of which, on the
Defendants' case, Zyklon-B pellets were poured down from the roof of
morgue 1 into the gas chamber below (where the Defendants claim most of
the deaths occurred). In particular Irving relied on a photograph of
part of the collapsed roof which displayed no evidence of the apertures
through which the chimneys would have protruded.

13.82 As the Defendants point out, this argument has some curious
features. Firstly, Irving embraced it relatively recently in late 1998
(so that it cannot have been the basis for his denials before that date
of the existence of gas chambers at Auschwitz). Secondly, Irving
appeared at one stage to accept that there was a gas chamber in morgue 1
at crematorium 2, albeit one that was used for fumigation and not for
killing. In that case it would seem that ducts or some other form of
aperture would have been required to introduce the pellets into the
chamber, since the morgue had no windows and a single gas-tight door.
Thirdly, the argument is confined to morgue 1 at crematorium 2. Although
Irving spent hardly any time in his cross-examination of van Pelt on the
evidence that gassing took place elsewhere at Auschwitz, it is the
Defendants' case that gassing took place in other gas chambers, notably
at crematorium 3.


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