Newsgroups: alt.revisionism Reply-to: firstname.lastname@example.org 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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