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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