Archive/File: people/i/irving.david/libel.suit/transcripts/day021.12 Last-Modified: 2000/07/24 MR IRVING: After a time when you have been studying these documents over the years, they become part of your microchip and I am quite familiar with the document and ---- MR JUSTICE GRAY: Well, let us fresh your microchip. I cannot find it actually. MR IRVING: [German - document not provided]. A. Would you like to translate that? MR JUSTICE GRAY: Whereabouts are you? I had better find it. A. Page 188, it is the tab 2. MR JUSTICE GRAY: 188? A. Or -- no, 10 in the pencilled circle mark. Page 10. . P-106 Sorry. It is the typed 188. Yes, well, do you want me to translate that? This is after a long catalogue of crimes of theft, looting and rape and so on, and it says that, "The individual perpetrators had put into action, not merely the supposed will of the leadership, but the to be sure vague, vaguely expressed but correctly recognized will of the leadership". So the Party court is saying that these people pleased they were acting after the command of the leadership and they were right to believe so. MR IRVING: Without wishing to cast any judgment on the language used by lawyers, this is a very legalistic document and it is the sentence before the one that has been read out says, in effect, "These people, if this did not happen, then from the fact, as also from the remarks they made, we can draw the conclusion that the eventual result was desired or at least as considered to be a likelihood and desirable, and that this was taken into account, and from that fact, therefore, the people who had acted in that way had reason to believe that they might have been acting in accordance with the Fuhrer's will". It is a terribly legalistic kind of ---- A. Mr Irving, this is a document that says that these people were right to recognize that the leadership willed these crimes, and the consequence of this, and we have already been through this and your cross-examination, if I may . P-107 continue, was that those, the culprits were, that Hitler, that Hitler's permission or command was sought to let all of these people off any kind of prosecution in the regular courts with the exception of two who had raped Jewish women and, therefore, were considered to have committed a race defilement. Q. Yes, here comes the smoke screen again. It is the sentence before that counts though, is it not, because the sentence you have quoted begins with the words "in that case" or "then", "dann"? A. I am sorry. I have lost you now or you have lost me. Q. And that refers to the previous sentence which is, in fact, the saying that they may have got it wrong, they may have got it right, but the fact remains they believed that they were acting in accordance with the Fuhrer's will, perceived or otherwise, and so on. It is terribly tangled, but the sentence beginning with "then" relies on the previous sentence, in that case or that being so? A. Yes, but it says "richtig erkannten Willenfuhrer" -- "the correctly recognized will of the leadership". That is a completely unambiguous sentence. Q. I am going to have to sit down and write a translation of that final paragraph for your Lordship, I think. A. The court is saying that -- the court is saying that the will of the leadership was vaguely expressed, but correctly recognized by these people and, therefore, . P-108 because they not only thought that they were acting on its behalf but actually were and, therefore, the final sentence is "dafur kann er nicht bestrafft werden" -- "he cannot be punished for that". Q. Will you please read the sentence before the sentence beginning with the word "dann", then, in that case because ---- A. OK. Well, this goes back now. Q. --- "dann" refers to "in that case" and obviously we need to know in what case, "dann". The sentence before. It is very complicated, but I rely on that one too, of course. A. Well, a couple of sentences before says that -- I am going further and further back into this document -- it is talking about the murders. It is really about the murders of the 91. Q. Forget the murders. Let us please get on to---- A. No, this is what the document is about. I am not going to forget them, Mr Irving. Let us remember here we are talking about murder and whether or not the murderers listed here should be handed over to the regular courts. It says that, "In the course of the night of 9th to 10th November, most of these killings could have been stopped, prevented, by an additional command". So what they are saying there, in other words, is that if the leadership, Hitler, had not wanted these people to be killed, he would have sent out a telegram saying so, but he did not. So, . P-109 "Wenn dies nicht geschafft", that says "when" or, in other words, "because this did not happen", i.e. there was no telegram saying stop the killings, prevent the killings ---- Q. "If this did not happen"? A. Yes, "if this did not happen, so the" ---- Q. "The conclusion has to be drawn from this fact"? A. "The conclusion must be drawn from this fact". Q. "And from the statement of such"? A. "And from the statement that the eventual" ---- Q. "Outcome"? A. --- "success was wished or desired or at the very least was" ----- Q. "Considered to be likely or" ---- A. Yes. Q. --- "desirable"? A. "was presented", really, "presented", I guess, "as at least as possible and desired or taken into consideration as being possible and desired". And then it goes on. It is a convoluted sentence, but the meaning is quite clear. It is saying because there was not any command from the Party leadership that Jews should not be killed, then it was OK that they were and, therefore, these peopled who killed them should not be punished. Q. Let me cut through the Gordian knot ----- MR JUSTICE GRAY: May I just ask one question because I am . P-110 slightly puzzled. The very last sentence is in the singular. A. Ah, yes. I think they are referring to Falshenk(?) which is on the previous page, who had killed a Polish Jew. Q. I see. MR IRVING: Can I now ask one question ---- MR JUSTICE GRAY: May I just finish? I mean, do you read the fact that he cannot be punished as connected with the previous reference to what the Fuhrer wanted or the Fuhren wanted. MR IRVING: I think Fuhrer and Fuhren is the same. A. Yes, I mean, it is a kind of, well -- sorry, I have to slightly revise my previous opinion. I have just looked at it. It says [German], so the heir(?), the singular, you are quite right in recognizing. MR JUSTICE GRAY: He is a representative villain? A. It is then the individual perpetrator is what they are referring to when they say he cannot be punished. Q. So it is a sort of collective singular, yes? MR IRVING: But the reference is to the perception of a Fuhrer order, rather than to the actual Fuhrer order. I am sure your Lordship will appreciate that the argument is if he thought he was acting on a Fuhrer order, then we should let him off the hook? A. No, my Lord, that is not the case. MR JUSTICE GRAY: If it said that, I would agree with you, but . P-111 it goes on say, not only did they think they were acting on a Hitler order -- this is my perception of it at the moment -- but that they were right in thinking they were acting on a Hitler order. MR IRVING: I think we will have a proper translation of that final paragraph. We really need that. I will now ask one question which should cut through the Gordian ---- A. Well, let me just make the point, my Lord. I think you entirely right there. [German] is "the correctly recognized will of the leadership". It is completely -- it is absolutely unambiguous. MR IRVING: Yes, but the first word, of course, in this case "dann" means "in that case", does it not, if the above is true? A. Well, it is drawing a conclusion from the fact that there was no order from the leadership preventing the murders. Q. So now I will ask the question which will cut through the Gordian knot. The question is if there had been a Fuhrer order to the knowledge of the Supreme Part court, would they not here have said so in this document? A. Preventing the murders? Yes. Q. No, if there had not been a Fuhrer order on the basis of which all these murders were committed or these outrages were committed, would this Party court document not have made that completely clear? A. It does. There was not a Party, a Fuhrer order and it . P-112 does say that. Q. It says that there was not a Fuhrer order. Have I understood you? You are frowning. A. Yes, I think that is right -- I am just looking at the text again. We have been through this. Yes, it describes [German- documents not provided] So, you know, even so, I do want to translate it all over again, Mr Irving. This is really repeating what we have said already. It says: "There was no order preventing -- there was no order issued preventing these killings" and, therefore, one has to conclude from that that the leadership wanted them, even if that is only kind of a vague wish. That is that it says. Q. Can I phrase the question slightly more to the point, therefore? It is my fault. If there had been in existence to the knowledge of the Supreme Party court a Fuhrer order at any time the previous evening directing that the outrages should take place, whatever the nature of those outrages was, would the Party court not have mentioned it in this judgment as being a mitigating factor? MR JUSTICE GRAY: That they were to take place or that they were not? MR IRVING: They were to take place. If there had been, in other words, a triggering order by Hitler which is --- - MR JUSTICE GRAY: But I do not think anyone has ever suggested . P-113 there was a Hitler order that these outrages occurred. MR IRVING: Or a clear expression of the Fuhrer's will. MR JUSTICE GRAY: Nor does this document suggest that there was. It talks about the will of the leadership, and that is, as I understand it, the way it is put. He did not give an order for Kristallnacht to occur. MR IRVING: I think this will be useful, my Lord -- this is one of the documents which I provided as a translation to your Lordship in toto, an official translation. MR JUSTICE GRAY: That would be very helpful because it is heavy weather going through German for me. MR IRVING: It is worse, my Lord. It is lawyers' German, and the fact that most of the concentration camp criminals were lawyers is a fact I have mentioned before. My Lord, would this be a suitable place to pause? MR JUSTICE GRAY: I think it probably is. (Luncheon adjournment) (2.05 p.m.) MR JUSTICE GRAY: Yes, Mr Irving. MR RAMPTON: Can I mention something it has to do with the timing of evidence in this case. According to an indication given by Mr Irving earlier this week, I think either Monday or maybe yesterday but I think Monday, we expected that Professor Evans would be free to leave sometime tomorrow. MR JUSTICE GRAY: Yes. . P-114 MR RAMPTON: We were told a day and a half I think. It is quite apparent that that is not now going to be the case, or probably is not going to be the case. That involves the following possible consequences. One that we have to sit on Friday, and two, and this is more serious, that beyond Monday lunch time Professor Evans' academic life is going to be a wreck if he has stay on here. It has the further knock on consequence that I have other professional witnesses, Dr Longerich and Professor Funke who are also scheduled for particular dates to fit in with their academic obligations. I cannot really say any more than that but I am very concerned at the slow pace. MR JUSTICE GRAY: I slightly blame myself. I should have possibly taken a firmer line beyond giving repeated hints in the first two days of cross-examination, which I do still regard as having been rather, not beside the point, that is putting it too high. But rather peripheral. Shall I ask Mr Irving what his plan is? MR RAMPTON: If your Lordship would. MR JUSTICE GRAY: Then we can think ahead and work out what the timetable will be.
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