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Subject: Irving v. Penguin & Lipstadt: Judgment XIII-02
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Keywords: David Irving libel action Deborah Lipstadt


Archive/File: people/i/irving.david/libel.suit/judgment-13.02
Last-Modified: 2000/04/11

13.30 As I have recorded at paragraphs 5.137-8 above, Irving produced
another "chain of documents" in support of his contention that the
attitude of Hitler to the Jewish question was sympathetic and
protective. I accept that on occasion, particularly in the early years,
Hitler did intervene on behalf of Jews (usually individuals or
identified groups). I accept also (as I have already said) that until
1941 Hitler favoured deporting the Jews. But I note that few documents
in this chain come after the autumn of 1941. Those that do are at best
equivocal. It appears to me to be perverse to interpret Himmler's
compromising letter to Berger of 28 July 1942 as referring to
deportation. Objective consideration of that document suggests strongly
that the responsibility with which Himmler said he had been entrusted by
Hitler was the implementation of the policy of exterminating the Jews. I
accept the conclusion of Evans that the chain of documents does little
to justify or excuse Irving's portrayal of Hitler's views on the Jewish
question.

13.31 It is my conclusion that the Defendants are justified in their
assertion that Irving has seriously misrepresented Hitler's views on the
Jewish question. He has done so in some instances by misinterpreting and
mistranslating documents and in other instances by omitting documents or
parts of them. In the result the picture which he provides to readers of
Hitler and his attitude towards the Jews is at odds with the evidence.

The timing of the "final solution" to the Jewish question: the
Schlegelberger note

13.32 In my opinion Irving's treatment of the Schlegelberger note and
the importance which he attaches to it shed important light on the
quality of his historiography.

13.33 It is to be borne in mind that the note is undated and unsigned.
It is hearsay in the sense that its author is recording what Lammers
claims to have been told by Hitler. It is an Abschrift (copy) rather
than an original document. It has a number of unsatisfactory features,
which might give rise to doubts about its authenticity. There is no
clear evidence of the context in which the note came into existence. Yet
Irving has seized upon the note and regards it, to quote his own words,
as a "high-level diamond document". According to Irving, the note
demonstrates that it was Hitler's wish that the entire Jewish question
be postponed until the end of the war. It is therefore the linchpin of
his argument that Hitler was the Jews' friend. The question is whether
that is a conclusion to which an objective historian might sensibly
come, taking due account of the surrounding circumstances.

13.34 I shall not devote time to discussing the question whether the
document dates from 1941 (in which case it would be a wholly
unremarkable document since it was at that time Hitler's view that the
Jews should in due course be deported) or from 1942, since Evans was
disposed to accept, at least for the sake of argument, that the latter
date may well be the correct one.

13.35 On the assumption that the note is a 1942 document, I consider
that, in the light of all the surrounding circumstances and in the light
of subsequent events, it is (to put it no higher) very doubtful if the
Schlegelberger note is evidence of a wish on the part of Hitler to
postpone the Jewish question until after the war, that is, to take no
offensive action against them of any kind until after the cessation of
hostilities. I do not believe that Irving was able to provide a
satisfactory answer to the Defendants' question: why should Hitler have
decided suddenly in March 1942 to call a halt to a process which had
been going on with his authority on a massive scale for at least six
months. I am persuaded that, for the reasons advanced by Evans, it is at
least equally likely that the note is concerned with the complex
problems thrown up by the question how to treat half-Jews (mischlinge).
It is noteworthy that the evidence suggests that at the Wannsee
conference in January 1942 (where Heydrich claimed to be speaking with
the authority of Hitler) a programme for the extermination of Jews had
been discussed and in broad terms agreed upon. The delegates were,
however, unable to resolve the thorny question of the mischlinge. That
issue caused concern within the Ministry of Justice (where both Lammers
and Schlegelberger worked). A resumed session of the Wannsee conference
was arranged for 6 March 1942, when the question of the mischlinge was
again discussed. There is no support in the documentary evidence for
Irving's contention that there was on this occasion general discussion
of the Jewish question. No solution having been agreed, the balance of
the evidence in my view suggests that it was decided to refer the issue
of the mischlinge to Hitler for his decision. If that be right, the note
simply records what Hitler decided on that limited question. If the
Defendants' explanation of the note is correct (and I have held that it
is at least as likely an explanation as that put forward by Irving), the
note does not possess the significance which Irving attaches to it.

13.36 I do not regard the arguments advanced by Irving, which I have set
out at paragraphs 5.165-7, as being without merit: they are worthy of
consideration. But I do consider the Defendants' criticism to be well-
founded that Irving presents the Schlegelberger note as decisive and
incontrovertible evidence (see Hitler's War at p464) when, as he should
have appreciated, there are powerful reasons for doubting that it has
the significance which he attaches to it. Irving's perception of the
importance of the note appears to take no account of the mass murder of
the Jews which took place soon afterwards.

Goebbels's diary entry for 27 March 1942 (paragraphs 5.170-186 above)

13.37 I have concluded without hesitation that the manner in which
Irving deals in Hitler's War (both editions) with Goebbels's diary entry
of 27 March 1942 is misleading and unsupported by the circumstantial
evidence. A comparison between the language of the diary (see paragraph
5.174 above) and the account provided by Irving to his readers (see
paragraph 5.173) reveals stark discrepancies.

13.38 I recognise that Irving is justified in his claim that Goebbels
was often mendacious in his diary entries. So the entries have to be
scrutinised in the light of surrounding circumstances. But I do not
accept that the evidence of the circumstances as they existed in March
1942 lends support to Irving's claim that Goebbels concealed from Hitler
the reality of what was happening in the death camps. I do not consider
that Irving was able to point to evidence which controverted the
contention of the Defendants that by March 1942 the "radical solution"
favoured by Hitler was extermination and not deportation. It follows
that I accept the submission that the way in which Irving deals with
this diary is tendentious and unjustified.

Himmler minute of 22 September 1942 (paragraphs 5.187-198 above)

13.39 I consider that the interpretation of Himmler's terse note is
problematic. I recognise that there are pointers (including for example
the reference to Globocnik) which might be said to render this an
incriminating document. But there is force in Irving's argument that the
internal evidence consisting in the language used in the note
(auswanderung or emigration) is consistent with the discussion between
Himmler and Hitler having been about resettlement and not extermination.

13.40 That said, I accept the validity of the criticism that there was
no warrant for the claim made by Irving that at that meeting Himmler
pulled the wool over Hitler's eyes. In my judgment, that claim ignores
the circumstantial evidence as to the state of Hitler's knowledge by
September 1942 of the use of gas chambers to kill Jews. It also runs
counter to the evidence of the nature of the relationship between Hitler
and Himmler, who does not appear to have been a man likely to have
practised a deception of this kind on his Fuhrer. I therefore accept the
contention of the Defendants that Irving's treatment of this minute is
unjustifiably favourable to Hitler.

Himmler's note for this meeting with Hitler on 10 December 1942
(paragraphs 5.194-198 above)

13.41 This is another document where much of the argument turned on a
question of translation namely a whether abschaffen was to be translated
as "to remove" or "to liquidate". I do not criticise Irving for opting
for the former. However, I accept the Defendants' argument that the
reference in the note to keeping the well-to-do French Jews "healthy and
alive" should have alerted an objective historian to the sinister
significance of the note in regard to the fate awaiting the other French
Jews. To that extent I accept the criticism of Irving for the way he has
dealt with this note in Hitler's War.

Hitler's meetings with Antonescu and Horthy in April 1943 (paragraphs
5.199-214 above)

13.42 I regard the issue raised by the criticisms of Irving's accounts
of these meetings as important in assessing Irving's historiography. It
appears to me to be significant that there exist minutes of both
meetings taken by officials who (as I believe Irving accepted) had no
reason to obfuscate the effect of what was said.

13.43 I am satisfied that the Defendants' criticisms of Irving's
treatment of the evidence relating to the meeting with Antonescu and,
more particularly, with Horthy have substance. In assessing the evidence
it appears to me that an objective historian would take into
consideration, firstly, Hitler's apparent objective in meeting the two
leaders: it was to enable the Nazis to get their hands on the Romanian
and Hungarian Jews respectively. Such an historian would ponder whether
the language of the minutes can be said to be consistent with a desire
on the part of the Nazis to secure the deportation of the Jews and
nothing more. He would also have in mind the subsequent history of the
Romanian and Hungarian Jews.

13.44 It does not appear to me that, in relation to these meetings,
Irving approached the evidence in an objective manner. His account of
the meeting with Antonescu was partial and on that account misleading.
In relation to the meeting with Horthy, Irving failed to heed what
appears to me to be powerful evidence that on the second day, 17 April,
both Hitler and Ribbentrop spoke in uncompromising and unequivocal terms
about their genocidal intentions in regard to the Hungarian Jews. Irving
was constrained to accept that the pretext which he put forward for the
meeting with Horthy (the Warsaw ghetto uprising which happened
afterwards) was false, as was his explanation for the harsh attitude
evinced by Hitler at the meeting (recent Allied bombing raids). I was
not persuaded that Irving had any satisfactory explanation for his
transposition from 16 to 17 April of Hitler's comforting remark, made on
16 April, that there was no need for the murder or elimination of the
Hungarian Jews. In my judgment Irving materially perverts the evidence
of what passed between the Nazis and Horthy on 17 April.

The deportation and murder of the Roman Jews in October 1943 (paragraphs
5.215-221 above)

13.45 I do not accept that an objective analysis of the available
evidence supports Irving's claim that the effect of Hitler's
intervention was to prevent Himmler's murderous plans for the Jews being
brought into effect. It appears to me that it was specious for Irving to
argue, as he did, that Hitler's intervention was for the benefit of the
Roman Jews, when the result of that intervention was that the Roman Jews
were sent to the notorious concentration camp at Mauthausen where they
were at the mercy of the SS. I also take the view that it was a culpable
omission on Irving's part not to inform his readers that these Jews were
ultimately murdered.

Himmler's speeches of 6 October 1943 and 5 and 24 May 1944 (paragaphs
5.222-230 above)

13.46 It is a common ground that in these three speeches Himmler was
speaking, with remarkable frankness, about the murder of the Jews. The
question is whether Irving dealt in an objective and fair manner with
the evidence which those speeches afford as to Hitler's knowledge of and
complicity in the murder of the Jews. I am satisfied that he did not.
Two of the speeches provide powerful evidence that Hitler ordered that
the extermination of the Jews should take place. Yet in the 1977 edition
of Hitler's War Irving suggests that the existence of a Hitler order was
an invention on the part of Himmler. It does not appear to me that the
evidence supports that suggestion. I consider that Irving's deduction
that the transcript of the speech of 5 May was either altered after
Himmler delivered the speech or sanitised before it was shown to Hitler
is fanciful. The absence of any mention of that speech in the 1991
edition of Hitler's War was in my judgment another culpable omission.

Hitler's speech on 26 May 1944 (paragraph 5.235-239 above)

13.47 Irving quoted the material part of this speech in full in Hitler's
War. I do not accept the Defendants' argument that his prefatory comment
amounts to misrepresenting or twisting Hitler's words. The reader can
judge for himself.

Ribbentrop's testimony from his cell at Nuremberg (paragraphs 5.235-239
above)

13.48 I accept that historians are bound by the constraints of space to
edit quotations. But there is an obligation on them not to give the
reader a distorted impression by selective quotation. In my view Irving
fails to observe this duty when in the 1977 edition of Hitler's War he
quotes Ribbentrop's belief that Hitler did not order the destruction of
the Jews but fails to quote his immediately following comment that he at
least knew about it.

Marie Vaillant-Couturier (paragraphs 5.240-244 above)

13.49 I have no hesitation in concluding that the Defendants' criticism
of Irving in relation to the evidence of Vaillant-Couturier is
justified. The evidence appears to me to be plain that the Judge's note
"This I doubt" referred and referred only to her supposition (for it was
no more than that) that other camps (of which she would have had no
direct knowledge) had systems for selecting inmates as prostitutes for
SS officers. There is no reason to suppose that the Judge had any
reservations about Vaillant-Couturier's vivid, detailed and credible
evidence about the womens' camp at Auschwitz. Irving's claim that Judge
Biddle thought she was "a bloody liar" is a travesty of the evidence.

Kurt Aumeier (paragraphs 5.245-249 above)

13.50 I find myself unconvinced by Irving's argument that Aumeier is an
unreliable witness. I prefer the contention of van Pelt and Evans for
the Defendants that he is an important and credible witness as to the
gassing procedures in place at Auschwitz. As deputy commander at the
camp, he was in a position to know. Whilst there are clearly errors in
his account, for the most part his recollections are convincing. It was
of course legitimate for Irving to suggest that his account was the
result of brutal pressure being brought to bear by his British captors,
if he had evidence for such a suggestion. But it was not clear to me
what evidence Irving was relying on. I further accept that Irving
minimised the significance of Aumeier's evidence (even if he did not
suppress it altogether) when he confined reference to it to a footnote
in Nuremberg.

Findings in relation to the instances of Irving's historiography cited
by the Defendants

13.51 For the reasons which I have given, I find that in most of the
instances which they cite the Defendants' criticisms are justified. In
those instances it is my conclusion that, judged objectively, Irving
treated the historical evidence in a manner which fell far short of the
standard to be expected of a conscientious historian. Irving in those
respects misrepresented and distorted the evidence which was available
to him.

Evidence of Hitler's attitude towards the Jews and the extent, if any,
of his knowledge of and responsibility for the evolving policy of
extermination

13.52 Some of the findings which I have already made in relation to the
Defendants' specific criticisms of Irving's historiography bear upon the
broader questions of Hitler's attitude towards the Jews and his
involvement, if any, in the ethnic cleansing of the Jews. I will not
repeat those findings in this section of the judgment. Although the
questions with which I am in this part of the judgement concerned are
broad ones, they narrowed and crystallised in the course of the trial.
As will be apparent from section VI above, the Defendants focused their
attention upon Irving's treatment of the evidence relating to the
following topics: Hitler's anti-semitism; the scale of the so-called
executions of Jews in the East; the alleged use of gas chambers at the
Operation Reinhard camps to kill Jews and evidence relating to the
question of Hitler's knowledge of and authority for the extermination of
Jews by shooting and by gassing. In relation to all of these issues save
the first, Irving's stance appeared to me to alter in the course of the
trial.

Hitler's anti-semitism (paragraphs 6.3-9 above)

13.53 Irving having accepted that Hitler was profoundly anti-semitic
until he came to power, the question is whether, as Irving claimed, he
lost interest in anti-semitism from about 1933 onwards because it was no
longer politically advantageous for him.

13.54 In his comprehensive and scholarly report, Longerich analysed the
evidence of Hitler's anti-semitism both before and after 1933. He
examined in particular Hitler's public pronouncements on the Jewish
question. I have already set out in this judgment many of those
statements. Ignoring for the moment the question whether Hitler was
advocating the deportation of the Jews or their extermination, the
argument appears to me to hopeless that after 1933 Hitler lost interest
in anti-semitism or that he ceased to be anti-semitic when he came to
power. Despite his increasing preoccupation with other matters, Hitler
reverted time and again to the topic of the Jews and what was to be done
with them. He continued to speak of them in terms which were both
vitriolic and menacing. For the reasons which I have already expressed
in the earlier paragraphs of this section of the judgment, I am
satisfied on the evidence of his public statements that Hitler's anti-
semitism continued unabated after 1933.

13.55 But account must also be taken not only of what Hitler said but
also of what he did or authorised to be done or at least knew was being
done in relation to the Jews. In the following paragraphs of this
judgment I will summarise what appears to me to be the evidence of
Hitler's involvement in the successive programmes of shooting, deporting
and gassing Jews in large numbers. This evidence (which is in large part
accepted by Irving) would in my view convince a dispassionate historian
of Hitler's persistent anti-semitism. Even if (which I do not accept)
the evidence supported the proposition that Hitler's policy towards the
Jews remained throughout that they should be deported, it cannot in my
view sensibly be argued that uprooting Jewish men, women and children
from their homes and dumping them in often appalling conditions many
miles away to the East was other than anti-semitic. I therefore reject
as being contrary to the evidence Irving's claim that Hitler ceased to
be anti-semitic from 1933 onwards.

The scale and systematic nature of the shooting of Jews by the
Einsatzgruppen (paragraphs 6.10-59 above)

13.56 I can deal quite briefly with the extensive evidence relied on by
the parties in relation to this topic. The reason I can take that course
is that Irving, as the case progressed, appeared to accept much of what
Longerich and Browning said in their reports and in their oral evidence.
In particular Irving agreed that the evidence, principally in the form
of reports by the Einsatzgruppen, appears to establish that between
500,000 and 1,500,000 people (including a large proportion of Jews) were
shot by those groups and by the auxiliary Wehrmacht units seconded to
assist them. My understanding is that the Defendants suggest that the
true figure was higher than this. But I do not see that, in the context
of this case, any useful purpose would be served by my attempting to
assess whether the evidence supports a higher figure.

13.57 Irving further accepted that the evidence indicates that the
programme of shooting Jews in the East was systematic, in the sense that
it originated in Berlin and was organised and co-ordinated from there.
Furthermore Irving conceded that the evidence bears out the contention
of the Defendants that Hitler sanctioned the killings. Irving testified
that, if he had given audiences the impression by what he said in
Australia in 1986 that the killings on the Eastern front had taken place
without the knowledge and approval of Hitler and his cronies, he had
been wrong to do so. His evidence was that "certainly Hitler sanctioned
the killing of the Jews on the Eastern front". The evidence which
prompted Irving to make these concessions consisted in the regular
reports made by the Einsatzgruppen to Berlin; the preparation by the
RHSA in Berlin of Ereignismeldungen (event announcements) and a report
numbered 51 dated 29 December 1942 which recorded the "execution" of
363,112 Jews and which (as Irving accepted) was probably shown to
Hitler. The Defendants also relied on the so-called Muller order of 1
August 1941 to which I shall have to return later. It appears to me that
these concessions by Irving were rightly made. Apart form the existence
of the evidence to which I have just referred the vast manpower required
to carry out the programme at a critical stage in the war would surely
have required the approval of Hitler.


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