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Subject: Irving v. Penguin & Lipstadt: Judgment VI-04
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Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-06.04
Last-Modified: 2000/04/11

6.85 As noted above, on 18 December 1941 Himmler met Hitler, who,
according to Himmler's note, agreed that the Jews were to be annihilated
as if partisans. The Defendants accept that Hitler expressed that
sentiment in the context of the programme of shooting Jews in the East,
but it is, according to them, indicative of his murderous intentions
towards the Jews at this time. In January 1942 Hitler again confirmed in
his New Year's address that it would be the Jews rather than the Aryan
peoples of Europe would be ausgerottet (exterminated). He spoke in
similar terms at the Reichstag on 30 January 1942 and thereafter on 14,
22 and 24 February 1942..

6.86 As Frank had told his audience it would be, a meeting was convened
in Berlin and took place in Berlin on 20 January 1942 under the
chairmanship of Heydrich. It is known as the Wannsee conference. The
invitations to the conference were accompanied by an authorisation,
signed by Goering, to prepare a European-wide Final Solution to the
Jewish problem. State Secretaries, ranking just below Cabinet ministers,
attended, as did amongst others Muller, Hofmann and Eichmann. According
to the Defendants, it marks an important milestone in the evolution of
the policy of extermination. Irving totally rejected the significance
which the Defendants attach to this conference.

6.87 Heydrich told those present:

     "A further possible solution [of the Jewish question] instead of
     emigration has come up. After appropriate approval by the Fuhrer,
     the evacuation of the Jews to the East has stepped into its place.
     These actions, however, must be regarded as only as an alternative
     solution. But already the practical experience (praktischen
     Ehrfahrungen) is being gathered which is of great importance to the
     coming Final Solution of the Jewish question. Under the appropriate
     direction the Jews shall now be put to work in the course of the
     Final Solution. Organised into large work gangs and segregated
     according to sex, those Jews fit for work will be led into these
     areas as road builders, whereby no doubt a large part will fall out
     by natural elimination. The remainder who will survive - and they
     will certainly be those who have the greatest power of endurance -
     will have to be dealt with accordingly. For, if released, they
     would, according to the natural selection of the fittest, form the
     seed of a new Jewish regeneration".

Longerich noted the reference made by Heydrich to the approval of the
Fuhrer. He asserted that "to be dealt with accordingly" is a typical SS
expression for liquidation. So the Jews who survived the labour regime
(if any did) were to be liquidated. Moreover the Defendants draw
attention to what they regard as a notable and sinister omission from
those words: what was to happen to those Jews who were already unable to
work (as most were)? The answer, according to the Defendants, is that,
having been judged unfit for work, they were condemned to be killed. The
Defendants give, as a further reason for saying that Wannsee had the
significance for which they contend, the fact that shortly after Wannsee
the construction of the death camps at Sobibor and Treblinka started and
gas chambers were built at Auschwitz. The enormous task of killing the
Jews then began in earnest, say the Defendants.

The Defendants' case is that Wannsee was what Browning described as an
"implementation conference" at which the participants were concerned to
set up a ministerial bureaucracy, under the leadership of Heydrich, for
the extermination of the Jews. It was not a theoretical discussion.

6.88 It is the Defendants' case that the scale of the gassing programme
escalated in March 1942. On 3 March 1942 the Prime Minister of Slovakia
announced that agreement had been reached with the Nazis for the
deportation to Auschwitz of the 70,000 remaining Slovakian Jews.

6.89 Himmler's Dienstkalendar reveals that, following dinner with Hitler
on 10 March 1942, Himmler spoke by telephone to Heydrich on 11 March
when they discussed the Judenfrage (Jewish question). On 13 March
Himmler travelled to Cracow (where he met Frank and Kruger) and thence
on 14 March to Lublin (where he met Kruger and Globocnik). On his return
to Berlin, Himmler on 17 March had lunch and dinner with Hitler at the
Wolfschanze (Wolf's Lair). Goebbels's diary entry for 20 March records
that on the previous day Hitler had displayed a merciless attitude
towards the Jews and had stated that the Jews must be got out of Europe,
if necessary by the most brutal means.

6.90 Browning referred to evidence that in mid-March 1942 it was agreed
that deported Jews arriving at Lublin should be divided into those
capable of work and those not so capable. The latter were to be sent to
Belzec, where gassing commenced on 17 March. Large-scale gassing
continued at Belzec in the following months. In the same month
construction of Sobibor began and bunker 1 at Auschwitz started
operation as a gas chamber. Gassing had started at Sobibor by May 1942.
Construction of the death camp at Treblikna commenced at about this
time. In the first six months of 1942 some 10,000 Jews had been gassed
at Chelmno. Vast numbers of Jews in the General Government and in the
Warthegau were, according to the Defendants, killed by the use of gas.

6.91 The Defendants also rely on a letter dated 11 April 1942 which Dr
Turner, whose rank was equivalent to that of a Privy Councillor, wrote
from Serbia to Karl Wolff, Himmler's adjutant and sometime liaison
officer to Hitler. The letter was marked "AR" for Action Reinhard. It
referred in rather unsubtle code to the use of gassing trucks at Semlin
on a scale which Irving agreed could not be described as limited or
experimental. Irving conceded that the document is a sinister one.

6.92 On 1 May 1942 Greiser wrote to Himmler, following a meeting with
Globocnik in May 1942, that "the special treatment" (Sonderbehandlung)
of around 100,000 Jews in his district, which had been authorised by
Himmler in agreement with Heydrich, could be completed in the next 2-3
months. Irving accepted that, in the light of what subsequently emerged
(although not, he said, on the face of this document) "special
treatment" meant killing. He was critical of Longerich for, as he put
it, "extrapolating backwards" from what subsequently happened at the
camps, that it had throughout been the plan that the killings should
occur. Longerich answered this criticism by saying that, in the nature
of things, historians must frequently have resort to this method, which
is in any event wholly unobjectionable. The document did not spell out
where the special treatment was being meted out but in the opinion of
Browning it is a reasonable inference that it was at Chelmno, which was
operating at the time. Irving makes the point that this letter does not
say that it was written on the instructions of the Fuhrer.

6.93 Browning gave evidence that contemporaneous documents show that
from the summer of 1942 trainloads of Jews were being transported
westwards from the occupied eastern territories to Belzec and to
Treblinka. The significance of this westward movement of Jews, according
to both Browning and Longerich, is that it demonstrates that the policy
was no longer to keep deporting the Jews further and further to the East
but rather to exterminate them.

6.94 On 17 and 18 July 1942 Himmler visited Auschwitz. He had met Hitler
over a meal on two occasions in the preceding ten days. At Auschwitz he
met the Commandant, Hoss. He then travelled to Lublin, where he met
Kruger, Globocnik and Pohl. On 19 July Himmler, according to the
evidence of Browning who was basing himself on contemporaneous
documents, laid down a schedule for the extermination of the entire
Jewish population of the General Government by the end of the year (save
only for certain Jews employed in ghettos on war work). The Defendants
assert that with effect from 22 July 1942 there were massive
deportations from Warsaw and northern Lublin district to Treblinka and
from Przemsyl to Belzec. On 23 July 1942 gassing started at Treblinka.
On 24 and 27 July 1942 Himmler lunched with Hitler. Three days later
Himmler wrote to Berger, a senior officer at the SS Headquarters, a
letter which on the Defendants' case is highly revealing. He wrote that
the occupied Eastern territories were to be free of Jews by the end of
the year. Himmler added that the "carrying out of this very hard order
had been placed on his shoulders by the Fuhrer". The extermination of
Jews on a massive scale in the death camps commenced at this time.

6.95 Browning relied also on the protocol of a meeting in Berlin on
September 26-8 1942 as showing that train transports to the death camps
had been proposed by Brunner, whose immediate superior was Himmler.
Browning pointed out that on 28 July 1942 Ganzenmuller, a senior
official in the Ministry of Transport, reported to Wolff, an SS officer
who Irving accepted was close to Hitler, that trains were regularly
transporting Jews in large numbers to both Treblinka and Belzec. On 13
August Wolff, writing from Hitler's headquarters, wrote to Ganzenmuller
expressing his joy at the assurance that for the next two weeks there
would be a daily train carrying 5,000 of the "chosen people" to
Treblinka.

6.96 The Defendants rely in addition on what they claim to be an
explicit mention of the policy of extermination which is contained in
the so-called Kinna report, written by an SS corporal dated 16 December
1942 from Zamosk in Poland about the transport of 644 Poles to
Auschwitz. This report records SS Hauptsturmfuhrer Aumeier as having
explained that only Poles fit for labour should be delivered to
Auschwitz and that, in order to relieve the camp, "limited people,
idiots, cripples and sick people must be removed from the same by
liquidation". The report continues that "in contrast to the measures
applied to the Jews, the Poles must die a natural death". This, say the
Defendants, points unequivocally to a policy of exterminating the Jews
being in place at Auschwitz and inferentially elsewhere.

6.97 Apart from these sparse documentary references, the Defendants rely
upon what might be described as circumstantial evidence that
extermination on a massive scale took place. In relation to the fact and
scale of the extermination, they commend as accurate the figures given
in the report of Dr Korherr, who was the statistician working for
Himmler. He gave as the number of those deported from the Warthegau for
Sonderbehandlung (special treatment) a total of 1,419,467.

6.98 Browning advanced what is in effect a demographic argument in
support of the Defendants' contention that Jews were exterminated in the
gas chambers at the death camps in vast numbers. He calculated the
approximate number who were deported from western European countries and
removed from the ghettos of Poland; he asserted that contemporanous
evidence proves that many of them were transported to Belzec, Sobibor
and Treblinka; since they were never heard of again, Browning considers
it reasonable to infer that they were put to death in the camps. It is
the Defendants' case that between 750,000 and 950,000 Jews were killed
by gas at Treblinka; 550,000 at Belzec; 200,000 at Sobibor and 150-
200,000 at Chelmno. Those were the estimates based on expert German
witnesses and accepted in the German criminal prosecutions in the 1960s.

6.99 Longerich supported Browning's estimate for the number killed at
Belzec. Basing himself on the evidence given at the trial of those
involved in the camp, he put the figure at between 500,000 and 600,000.
He agreed that estimates given by the historian, Michael Tregenza, were
unreliable but said that he had not relied on him in that connection.
Longerich testified that Belzec was initially employed in gassing Jews
from the areas of Lublin and Galicia.

6.100 In addition to the circumstantial evidence, the Defendants rely on
the evidence of eye-witnesses in support of their case that gas chambers
were used at Belzec, Sobibor and Treblinka to kill hundreds of thousands
of Jews. Browning divided these witnesses into five categories: (i)
German visitors to these camps; (ii) German personnel stationed there;
(iii) Ukrainian guards assigned to the camps; (iv) Poles living in the
vicinity of the camps and (v) Jews who escaped. In view of the position
adopted by Irving on the question of gassing at these camps (to which I
shall refer in due course), it is unnecessary for me to set  out at
length who all of these witnesses were or what they were able to
describe. According to Browning, there are over one hundred of them.

6.101 Within category (i) comes Eichmann, who is regarded by Browning as
being in general a credible witness. His testimony takes various forms:
an interview with a journalist in South America before his apprehension;
memoirs and evidence at his trial. (During the course of the present
trial evidence was released by the Israeli government of what Eichmann
said under interrrogation by Israeli prosecutors. Since, however, this
evidence was not available to Irving at any material time, no reliance
was placed on it by the Defendants in support of their plea of
justification). Eichmann stated that he was sent by Heydrich to discuss
with Globocnik the implementation of what he was told was Hitler's order
to kill the Jews. In the autumn of 1941 he was shown a building under
construction at Belzec, which he was told would be used as a gas chamber
to kill Jews with carbon monoxide gas. The following summer he saw Jews
about to enter the gas chamber at Treblinka. He also witnessed the
gassing of Jews at Chelmno.

6.102 Another German visitor was Kurt Gerstein. He described how he was
deputed to take 100 kilos of prussic acid to Lublin in August 1942.
Accompanied by a chemistry professor named Pfannenstiel, he travelled to
Belzec where he claimed that he witnessed about 750 Jews being driven
naked into four gas chambers. After a delay because the motor would not
start, the Jews were gassed. The process took 32 minutes. The bodies
were then thrown into trenches. The next day Gerstein went to Treblinka,
where he saw mounds of clothing. On his return to Berlin, he told a
Swedish diplomat what he had seen. His account was written in about
April 1945. He died shortly afterwards. Browning accepted that many
aspects of Gerstein's testimony are problematic and that he was prone to
exaggeration but concluded that on vital matters of which he was able to
speak from his own knowledge he is reliable. His evidence is largely
corroborated by that of Pfannenstiel.

6.103 Category (ii) consists of twenty-nine German camp officials all of
whom confirm that the camps were equipped with gas chambers in which
thousands of Jews were put to death. This category includes witnesses
who provided signed and sworn statements, which gave detailed and
gruesome evidence of the procedures followed at each of the camps in
administering the gas and disposing of the corpses afterwards. Category
(iii) included the Poles who lived in the neighbourhood of the camps and
so witnessed the endless flow of transports to the camps, smelled the
deathly smells from the camps and heard rumours what was going on there.
Category (iv) consisted of those Jews who were able to make their
escape. There were breakouts from Sobibor and Treblika. Some of the
fifty survivors of these camps gave evidence of their experiences. In
relation to Belzec, a Jew named Reder provided a detailed of the gas
chambers, even though it did not in all respects accord with other
testimony.

6.104 Finally the Defendants rely in support of their case that Hitler
knew of the Holocaust upon a letter written in 1977 to a journalist
named Gita Sereny by Christa Schroeder, formerly personal secretary to
Hitler and, say the Defendants, well placed to know the state of his
knowledge. Frau Schroeder wrote:

     "As far as the Judenfrage, I consider it improbably that Hitler
     knew nothing. He had frequent conversations with Himmler which took
     place tete-a-tete".

What Irving disputed, however, is the Defendants' contention that the
extermination of the Jews in the death camps was carried out pursuant to
some official Nazi policy sanctioned by Hitler.

6.105 The Defendants, on the basis of the evidence which I have
summarised above, contend that from October 1941 Himmler was embarked
upon a gigantic homicidal gassing programme, first of the Jews of the
Warthegau and Poland and, from late spring 1942, of the Jews from the
rest of Europe, at camps specially designed for the purpose. The
Defendants accept that there is no explicit evidence that Himmler
discussed with Hitler the extermination of the Jews by gassing. But in
the light of the evidence recited above, including the scale of the
programme; the fact that it was overseen by Himmler; the frequency with
which Himmler and Hitler met and spoke together at this time and the
evidence of Hitler's thoughts and public statements about the Jews, the
Defendants argue it is inconceivable that Hitler did not know and
authorise the mass extermination of Jews by gassing.

Irving's response: the scale of the killings by gassing

6.106 As I have already pointed out, Irving accepted that the object of
Operation Reinhard was broadly that contended for by the Defendants.
What he disputed are the Defendants' contentions as to scale of the
operation and Hitler's knowledge and approval of it. As to the scale of
the extermination programme, Irving's stance in regard to the question
whether gas chambers were employed at the Reinhard camps for the killing
of Jews and, if so, on what scale appeared to evolve during the course
of the hearing. He produced documents which show that various poisonous
gasses were employed by the Nazis for non-lethal purposes, in particular
for the fumigation of clothing. Indeed the Nazis trained people in the
use of gas for fumigation purposes. He spent some time in his own
evidence and during the course of his cross-examination of Browning
stressing the marked absence of documentary evidence of the gassing in
contrast with the ample documentation which has survived of the
execution of Jews by shooting. He pointed out that, of the many
thousands of messages intercepted by the British at Bletchley elsewhere,
none mentions gassing. Browning accepted that, with the exception of a
few documents referring to the use of gas vans by the Einsatzgruppen and
their use at Chelmno, documents do not now exist. His explanation was
that Operation Reinhard was centralised and so required little
communication, whereas the shooting was carried out by means of numerous
local operations. He added that most of the Reinhard documents had in
any event been systematically destroyed.

6.107 Irving was critical of the reliance placed by the Defendants on
such documents as are said by them to cast light on the allegedly
genocidal use to which the camps were put. Much time was spent in
evidence and argument on discussing the meaning and true significance of
a number of German words to be found in the speeches of Hitler and
others and in contemporaneous documents generally. There was prolonged
cross-examination of Longerich by Irving as to the meaning of certain
German words which he listed in a glossary prepared for the purpose of
these proceedings. Those words include ausrotten, vernichten,
liquidieren, evakuieren, umsiedeln and abschieben. A considerable number
of documents were scrutinised in an attempt to ascertain whether the
words in question were being used or understood in a genocidal sense.
Irving contended that most of these words are properly to be understood
in a non-genocidal sense. Longerich's agreed that most, if not all, of
these words are capable of being used in a non-genocidal sense. For
example ausrotten can bear such anodyne meanings as "get rid of" or
"wipe out" without connoting physical extermination. But he asserted
that its usual and primary meaning is "exterminate" or "kill off",
especially when applied to people or to a group of people as opposed to,
for example a religion. He contended that all depends on the context in
which the words are used. Another example is Umsiedlung, which can mean
no more than resettlement in a ghetto but more often embraces a
homicidal meaning as well. Whilst Longerich was prepared to concede that
some of the words in question may be used in a non-genocidal sense in
the years leading up to 1941, he argued that from about that date
onwards the words are invariably used in a sinister sense to connote
killing of a major scale. For instance he contends that when, in a
document dated 20 February 1942 the Reichsicherheitshauptamt (RHSA) use
the term Evakuierung in connection with the issuing of guidelines for
the implementation of the evacuation of Jews to Auschwitz, the word is
being used in a genocidal sense.

6.108 Irving was also critical of the Defendants' experts for their
readiness, as he saw it, to dismiss as "euphemistic" German words which
on their face are anodyne or imprecise in their connotation. Examples of
such words include Sonderbehandlung (special treatment), Evakuierung
(evacuation) and Umsiedlung (resettlement). According to the Defendants,
such words were often employed where the writer or speaker wished either
to be evasive or to speak in a coded language calculated to mislead
outsiders. Browning used Event report 21 of 13 July 1941 together with a
number of other similar reports to demonstrate that Sonderbehandlung was
used to mean liquidation or shooting or execution. He also cited a
document which refers to the Umsiedlung (resettlement) in the
Kreisgebiet Brest-Litovsk of 20,000 Jews who can be shown to have been
killed. Browning and Irving were in agreement that in the case of
camouflage documents such as these it is necessary to take careful
account of the context when deciding what these terms really signified.
According to both of them, it is legitimate and indeed necessary for an
historian to have regard not only to the circumstances as they existed
at the time when the document came into existence but also to what
happened later.

6.109 As regards the mass extermination of Jews, Irving accepted that
gas vans were employed to kill Jews at camps in the east. When asked
whether he accepted that at Treblinka, Sobibor and Belzec Jews were
killed with gas, Irving answered that, on the basis of evidence
contained in Eichmann's private papers, he accepts that there was
gassing in vans at Chelmno. He said, however, that he has not seen
evidence of the use of gas vans at the other camps. He maintained the
position that this was a very inefficient method of killing. He also
pointed out that there was some disagreement as to the way in which the
poison was administered and whether it was carbon monoxide or some other
form of poison. Irving also queried whether it would have been feasible
to have buried so many corpses.

6.110 But in the end Irving's doubts were no more than academic. For,
despite his original claim that gassing occurred on a limited basis
involving the use of no more that six to eight vans, Irving, in the
light of documents he had seen in the past six months, made a number of
concessions. He did not quarrel with the assertion of Browning that in a
period of about five weeks in 1942 97,000 were killed at Chelmno by the
use of gas vans. Irving suggested that figure may be an exaggeration but
he agreed that was not limited or experimental but systematic. He
further agreed that the evidence established that Jewish women and
children were gassed to death in vans in Semlin, near Belgrade, in 1942.

6.111 However, despite his acceptance at an earlier stage of the trial
that the gassing at the Reinhard camps had been systematic and on a
considerable scale, Irving cross-examined Evans on the basis that the
gas vans had been used to kill Jews on a basis which was no more than
experimental. Evans's evidence was that, whilst the vans were used in a
transitional stage only, they were nevertheless used on a large scale.

6.112 As to the specific documents relied on by the Defendants, Irving
agreed that Wetzel's letter of 25 October 1941 was concerned with
liquidating Jews but stressed that, as the Defendants accept, no gas
chambers were in the event constructed in Riga. Irving also noted that
Wetzel was never prosecuted. Browning's explanation is that there is no
evidence he did anything more than propose the construction of gas
chambers.

6.113 In reliance on the remarks made by Rosenberg at a press conference
on 18 November 1941 about six million Jews being "brought across the
Urals", Irving argued that the primary Nazi intention was to transport
them yet further to the East rather than to exterminate them. Rosenberg
specifically referred to the option of expelling them to the eastern
side of the Urals, so he should not be taken to have had in mind that
the Jews would be killed. Longerich in reply pointed out that Rosenberg
had spoken of "the biological eradication of the entirety of Jewry" at a
time when 500,000 odd Soviet Jews had already been exterminated.
Rosenberg was intent on exterminating the Jews by one means or another,
according to Longerich, for he said:

     "For this it is necessary to push them over the Urals or otherwise
     (my italics) eradicate them".



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