6.1 Apart from the specific criticisms made by the Defendants of Irving's historiography, with which I have dealt in the preceding section V of this judgment, the Defendants make the broader criticism of him that he persistently and seriously misrepresents what the evidence, obectively analysed, shows to have been the attitude adopted by Hitler towards the Jews in general and his involvement in the evolving policy to exterminate them. The Defendants' case is that, in order to arrive at any conclusion about the extent of Hitler's knowledge of the persecution which culminated in the genocide which took place in the gas chambers, it is necessary to take account of his conduct (including his public statements) throughout his political life. If this approach is adopted, the Defendants maintain that it becomes apparent that the proposition that Hitler did not know about or authorise the genesis of the gassing programme is unsustainable.
6.2 In this section I shall set out the parties' respective arguments in relation to this issue. I shall start with the issue whether and, if so, over what period the evidence shows Hitler to have been anti-semitic. I shall then rehearse the arguments as to the extent, if any, of his knowledge of and responsibility for the policies of shooting, deporting and exterminating Jews by means including gassing. For the sake of clarity I shall deal with each of those policies in separate sections, recognising that there is a degree of artificiality in such an approach. The policy of exterminating the Jews was not introduced in phases. I recognise also that there is an overlap between the questions with which this section is concerned and the issues addressed in section V (especially at (vi)). Inevitably there will be some duplication.
The issue between the parties
6.3 Irving does not dispute that Hitler was deeply anti-semitic from at least the end of World War I. But he claimed that, once Hitler came to power, he lost interest in anti-semitism. Hitler had espoused anti-semitism in the first place for reasons which were essentially political, according to Irving. The Defendants case is that Hitler was rabidly anti-semitic throughout and continued to play an active part in overseeing and controlling anti-Jewish policy up to and including the war years.
The case for the Defendants
6.4 Longerich examined in his report the genealogy of Hitler's role in the persecution of the Jews. He began with the emergence of Hitler's anti-Semitism after the First World War. In correspondence in 1919 Hitler outlined the differences between what he called emotional and rational forms of anti-semitism. The latter form ultimately led Hitler to call for the removal of the Jews altogether. By 1920 he was already using terms such as extirpation, annihilation and extermination in relation to the Jews. He referred to the Jews as a plague, an epidemic, germ carriers, a harmful bacillus, a cancer and as maggots. In his writings and speeches Hitler blamed the situation of Germany at the end of the First World War on an international Jewish conspiracy. His basic wish throughout had been by one means or another to remove the Jews from German soil. As is evident from the Goebbels diaries, Hitler and Goebbels devoted much time to the prosecution of anti-semitic policy.
6.5 In Mein Kampf, which was published in 1926, Hitler developed his anti-semitism by placing his desire to remove the Jews in the context of a wider theory of the struggle between races for living space. In Hitler's view the Jews, lacking a state of their own, were parasites trying to destroy those states which had been established by superior races. This idea was developed in his 'Second Book' which was written in 1927 although not published in his lifetime. In his speeches in the late 1920's Hitler stated that Jews were not able to work productively because they lacked a proper relationship with the soil. As a consequence they were parasites and spongers. This did not prevent Hitler from claiming that the Jews had achieved economic dominance and the ability to control and manipulate the media to their own advantage. He spoke of the need to eliminate the economic ascendancy of the Jews, if necessary by means of their physical removal. Longerich asserted that anti-semitism was an integral part of Hitler's Weltanshauung.
6.6 According to Longerich, when the Nazi party began to attract mass support in the early 1930s, the anti-semitic element was played down for political reasons. Even so, Hitler continued to refer to the Germans as being poisoned by another people. From 1935 onwards Hitler's attitude towards the Jews was reflected in the anti-semitic policies pursued by the Nazi government. Longerich cited, by way of illustration of these policies, Hitler's role in organising the boycott of Jewish businesses on 1st April 1933 and the enactment between 1935 and 1937 of various discriminatory laws. Jews were excluded from holding public office and the practice of law. Quotas for Jewish pupils and students were brought in. Longerich notes that after coming to power in 1933 there are examples of Hitler exercising a moderate influence on Jewish policy but in his view this was dictated by tactical considerations.
6.7 Hitler's anti-semitism is evident in his public statements in the 1930s. In his speech to the Reich Party Congress in 1937 Hitler talked of Jewish-Bolshevist subversion. The pogrom of 9th November 1938, Reichskristallnacht, marks the first occasion when Jews and their property were subjected to serious and widespread violence and destruction. I have already set out in section V(iii) and (iv) above the reasons why the Defendants contend that Hitler approved and promoted the pogrom. Hitler addressed the Reichstag on 30th January 1939 on the topic of the Jewish question. He said:
"In my life I have often been a prophet and was generally laughed at. During my struggle for power it was mostly the Jewish people who laughed at my prophecies that I would some day assume the leadership of the state and thereby of the entire Volk and them, among many other things, achieve a solution of the Jewish problem. I believe that in the meantime the then resounding laughter of Jewry in Germany is now choking in their throats.
Today I will be a prophet again; if international Jewry within Europe and abroad should succeed once more in plunging the peoples into a world war, then the consequence will be not the Bolshevisation of the world and therewith a victory of Jewry, but on the contrary, the annihilation of the Jewish race in Europe".
On the Defendants' case, this was a theme to which Hitler reverted on numerous occasions during the war as the Nazi line against the Jews hardened. I have already referred in section 5(viii) to Hitler's pronouncements on the Jewish question and I will not repeat them here.
6.8 As I have already indicated, Irving conceded, inevitably, that in the early years Hitler was a profound anti-semite, although he claimed that Goebbels's hatred for the Jews was more intense than that of Hitler. He also accepted that anti-semitism was from the outset one of the major planks of Nazi policy. However, he suggested that Hitler's anti-semitism was cynical in the sense that he adopted it as a means of getting power. Once he came to power, Hitler's anti-semitism receded. Irving pointed to occasions when Hitler had interceded on behalf of individual Jews. He even had a Jew on his staff. He retained General Milsch, a half-Jew.
6.9 In relation to the public statements on which the Defendants rely as evidence of Hitler's continuing anti-semitism after the establishment of the Third Reich, Irving stance can be summarised as follows: he accepts that on occasion Hitler used harsh language in relation to the Jews. But Hitler's concern and objective in relation to the Jewish problem was that it should be solved by their deportation and resettlement outside the Reich. I have set out in some detail at section V(viii) and elsewhere the reasons advanced by Irving for saying that the Defendants have misinterpreted the public statements made by Hitler in relation to the Jewish question. Irving argued that his description of Hitler as "the best friend" the Jews had in the Third Reich was justified.
The policy of shooting of Jews
Evidence of system and the scale of the shootings
6.10 It is common ground between the parties that over a period which started in the summer of 1941 and ran on throughout 1942, vast numbers of Jews within the area of the General Government (as occupied Poland was now called) were killed by shooting. The Defendants contend, principally through the reports and evidence of Browning and Longerich, that large numbers of Jews were executed in this manner and that the executions were carried pursuant to a systematic programme which Hitler knew about and approved.
6.11 Irving accepts that the number of Jews who were executed was large but disputes that it occurred on the scale alleged by the Defendants. He accepts that the killing was systematic. After some hesitation he conceded that the evidence which he has now seen indicates that Hitler knew and approved what was going on.
6.12 Much of the material and documentary evidence relating to he shooting in the East was destroyed. What remains suffices to establish that (as Irving accepted) four mobile SS units called Einsatzgruppen were established by Himmler's deputy, Heydrich, who was Chief of the Security Police and Security Services. The Einsatzgruppen provided information relating, amongst other things, to the number of Jews and others who had been shot. The information was collated into reports which were sent to Berlin where Heydrich's staff processed the information into event reports (Ereignismeldungen). Activity reports were also prepared. These documents represent the primary source of knowledge about the shootings on the Eastern front up to the spring of 1942. In addition to the Einsatzgruppen, there were other units who were also carrying out killings. For instance a police unit, presided over by Jeckeln, who was a Higher SS and Police Leader, killed 44,125 persons in August 1941. Other units carried out mass killings on a similar, if not greater, scale.
6.13 On numerous occasions prior to the commencement of this trial, and in the early stages of the present hearing, Irving claimed that the shooting of the Jews in the East was random, unauthorised and carried out by individual groups or commanders. Irving compared the shooting to the tragic events at Mi-Lai during the Vietnam war. However, in the course of the trial Irving radically modified his position: he accepted that the killing by shooting had been on a massive scale of between 500,000 and 1,500,000 and that the programme of executions had been carried out in a systematic way and in accordance with orders from Berlin. On the vital question whether Hitler knew and approved the shooting of the Jews in the East, Irving was equivocal. In the end I understood it to be his position that he now accepts that Hitler did know and approve what was going on. But that at the time when he was writing about the treatment of the Jews in the East (which, as he rightly stresses is the material time for purpose of evaluating the Defendants' case against him) the available evidence did not implicate Hitler. I shall therefore concentrate on the arguments advance by the parties on that aspect.
Case for the Defendants
6.13 According to the Defendants, the sequence of events was broadly as follows: on 19 May 1941 Wehrmacht guidelines were issued calling for "ruthless, energetic and drastic measures" to be taken against amongst others Jews generally. There was no explicit authorisation for executions to take place. However, by his order of 2 July 1941, Heydrich identified the categories of Jews to be killed. The instructions which he issued to the Einsatzgruppen in a section of the order headed "Executions" included the following categories who were to be shot:
"To be executed are all
functionaries of the Comintern (as well as all professional Communists)
the higher middle and radical lower functionaries of the Party, the Central Committee, the district and regional committees
Jews in party and state functions
other radical elements (saboteurs, propagandists, snipers, assassins and agitators etc"
At the same time Heydrich gave instructions for the surreptitious promotion of pogroms in the Jewish ghettoes. The Einsatzgruppen were instructed to foment local anti-Jewish elements to promote such pogroms but without leaving any trace of Nazi involvement. Longerich pointed out that, once pogroms have started, there is no way control can exercised over those who will be killed.
6.14 Browning gave evidence that in the initial stages the Jews who were targeted were males in leadership positions and in selected professions (excluding doctors, who were spared, although not, according to Browning, for military reasons). Longerich testified that in a state-run economy there would have been a large number of Jews occupying positions in the party or the state, perhaps hundreds of thousands. He stressed the width of the last of the categories in Heydrich's order which concludes with the potentially wide-ranging catch-all "etc". In effect, according to Longerich, it permitted men in the field to carry out executions at will.
6.15 In the event Heydrich's instructions were interpreted broadly: the Einsatzgruppen reports show that large numbers of adult Jews were straightaway put to death whether or not they held state or party positions. Browning notes that professionals and other community leaders were targeted. He cites as an example the report in July 1941 by Einsatzgruppe C that "leaders of Jewish intelligentsia (in particular, teachers, lawyers, Soviet officials) liquidated". A pointer towards the escalation in the scale of shootings is to be found in a footnote to a report by the leader of an Einsatzkommando, Jager, dated 2 August 1941. Jager had advocated the ghettoisation of the Jews in the Ostland but his superior, Stahlecker, informed him of the receipt of "general orders from above which cannot be discussed in writing". Thereafter Jager's Kommando shot Jews, including women and children, in sharply increased numbers. So it would appear, say the Defendants, that such restrictions as had been imposed on the Jews who were to be shot had been relaxed.
6.16 In August 1941 the killing campaign had escalated further to include Jewish women and children. On 1 August 1941 an "explicit order" was issued to SS units who were preparing to sweep the Pripet marshes by Himmler:
"All Jews must be shot. Drive the female Jews into the swamp".
Browning argued that the reply to those instructions by Obersturmbannfuhrer Magill demonstrates that he well understood the intention which lay behind them, namely that the Jews in question should be killed:
"Driving women and children into the swamps did not have the intended success because the swamps were not so deep that a sinking under could occur".
Longerich too interpreted the instructions as ordering the death of the Jews in question including the women. But he agreed that they were not of general application but rather were confined to the operation to clear the Prpyat marshes. Even so, Longerich estimated the number killed at about 14,000.
6.17 The Defendants say that the total numbers killed can be derived or extrapolated from the reports based on information supplied by the Einsatzgruppen. Those reports, if taken at face value, indicate that each of the four groups reported having killed tens of thousands of Jews in the latter months of 1941. Not all of the reports distinguish between Jews and non-Jews but some do. Browning cites as a typical example the so-called Jager report. That report gives as the number of non-Jews killed by a single Kommando, Einsatzkommando 3 in Lithuania in the period to December 1941 at 2,042, that is, barely 1.5% of the total number of 134,000 odd reported to have been killed. Other reports provide broadly similar proportions. Browning concluded that there is compelling evidence to conclude that the overwhelming majority of the people reported as executed were Jews. The Defendants rely, in support of their contention that the shooting was carried out systematically, upon the fact that reports of the shootings were sent regularly to Berlin.
6.18 According to Browning, there was a further escalation in the killing campaign from late September onwards, when Grossaktionen (large scale actions) commenced in which whole Jewish communities were wiped out. For instance 33,000 Jews in Kiev were killed on 29-30 September 1941. Not only were the Jewish inhabitants of the ghettos in large cities exterminated, smaller towns and rural areas were also rendered Judenfrei (free of Jews). Longerich testified that in the autumn of 1941 the programme of killing Jews moved into a second phase. Until then the targets had been Soviet Jews, focussing initially on the intelligentsia but then spreading to other Jews. He said that the evidence shows that from the autumn of 1941 the killing was extended to Jews in parts of Poland and in Serbia. In the spring and summer of 1942 the killing extended even further afield. Stahlecker, reporting on 15 October 1941, admitted that it had been realised from the start that ghettos would not solve the Jewish problem and that "basic orders" had therefore called for the most complete means possible of the Jews.
6.19 The Defendants rely on an exchange of correspondence which took place in November and December 1941 as indicating what was the policy towards the execution of Jews at this period. On 15 November 1941 Lohse, Reichskomissar for the Eastern Territores, wrote to Rosenberg, Reichsminister for those territories, informing him that he had forbidden the "uncontrolled" execution of Jews in a town in Latvia because they had not been carried out in a manner which was justified. Lohse enquired whether there was a directive to liquidate all Jews in the East irrespective of the economic interests of the Wehrmacht. The response from Rosenberg's office on 18 December 1941 stated that "clarification of the Jewish question has most likely been achieved by now through verbal discussions". The letter continued that economic considerations must be disregarded and that any question arising should be settled directly with higher SS and police officers. Longerich interpreted this exchange as an instruction to Lohse that in future the SS were to have carte blanche to carry out executions of the Jews. No instructions were given that mass shootings should not to take place in future. To the contrary Rosenberg was confirming that mass-shootings were to continue but in future they were to be carried out in a better organised manner under the supervision of the SS. According to Longerich this broadly tallies with the order referred to by Bruns in his account of events following the shooting of the Jews in Riga on 1 December 1941. I have set out in the section V(vii) of this judgment the account given by Bruns of the order which he was told about, namely that shooting shall be done more discreetly in future.
6.20 During the winter of 1941-2 there was a temporary lull in the shootings in the areas outside the Baltic states, due in part to the frozen ground preventing the digging of pits for burying the murdered Jews and in part to the need to utilise Jewish labour. But elsewhere, according to a situation report by Himmler in February 1942:
"While the Jewish question in the Ostland can be seen as practically solved and cleansed, progress continues to be made on the clarification of this problem on other occupied territories in the east".
In the spring of 1942 the intensive campaign of killing was resumed. Its scale can be judged by reference to a report dated 26 December 1942 (to which I shall refer in more detail later) which stated that in the Ukraine and Bialystok 363,211 Jews were exterminated over the four months from August to November. By this time even Jewish labourers who might have made a contribution to the Nazi war effort were not spared.
6.21 Further evidence for the existence of a systematic programme for the mass killing of Jews is to be derived, according to the Defendants, from what Longerich, on their behalf described as an extraordinary speech by Himmler to SS officers at Posnan on 4 October 1943. He said:
"I also want to talk to you quite frankly about a very grave matter. We can talk about it quite openly among ourselves, but nevertheless we can never speak of it publicly. Just as we did not hesitate on 30 June 1934 to do our duty as we were bidden, and to stand comrades who had lapsed up against the wall and shoot them, so we have never spoken about it and will never speak of it. It was a natural assumption of tact – an assumption which, thank God, is inherent in us – that we never discussed it among ourselves, never spoke of it...... Most of you will know what it means to have a hundred or five hundred corpses lying together before you. To have been through this and – disregarding exceptional cases of human weakness – to have remained decent, that iw what has made us tough. This is a glorious page in our history, one that has never been written and can never be written".
Longerich accepted the suggestion put to him by Irving that Himmler may have been trying to make his SS officers into accomplices after the fact. But in the speech Himmler expressly acknowedged the widespread killing operations in which the SS had been engaged.
6.22 Browning and Longerich conclude that there is in the Nazi documents (some of which I have reviewed above) clearly visible evidence of a programme for the systematic mass-murder of Jews in occupied Soviet territory and in the General Government by shooting them. The explicit goal of this policy was to cleanse the area, that is, to rid these territories of Jews. The scale of the killing, say the Defendants was awesome.
6.23 Was Hitler aware what was going on and did he approve of it? Although (as I have already indicated) Irving was prepared at one stage of the trial to agree that in broad terms the answer to this question is in the affirmative, he later shifted his ground. In these circumstances it is necessary for me to rehearse the rival arguments on this issue.
6.24 The Defendants' answer to this question is, firstly, that the scale of the killing was so immense and its effect on the war effort so great, that it is difficult to conceive that Hitler was not consulted and his authority sought. The Defendants adopted the evidence of Sir John Keegan, summoned to give evidence by Irving, that it was perverse to suggest that Hitler was unaware until October 1943 what was happening to the Jewish population: it defies common sense. But the Defendants assert that there was what Browning described as incremental decision-making process. Browning gave evidence that in his view Hitler had made clear to Himmler and to Heydrich what he wanted done in terms of ethnic cleansing and then left it to his subordinates to carry out his wishes. I shall summarise the stages by which on the Defendants' case the programme was set in place.
6.25 According to Himmler, Hitler commented that a memorandum which Himmler had presented to him on 25 May 1940 was "very good and correct". The memorandum had expressed the hope that by means of a large emigration of all Jews to an African colony, "the concept of the Jew will be fully extinguished". Although the memorandum described the physical extirpation of the Jews as "un-German and impossible", Browning pointed out that this exchange took place at a time when the ethnic cleansing of the Jews (as he described it) had slowed down markedly at the instigation of Goering and Frank, who were concerned to give priority to the war effort. Browning asserted that, with a Nazi victory in France apparently assured, the memorandum indicates that Himmler approached Hitler to obtain his approval for the revalidation of the programme of ethnic cleansing. He needed Hitler's approval in order to counter any moves by Goering or Frank to block the programme.
6.26 In the spring of 1941, whilst preparations were under way for Barbarossa (the invasion of Russia), Hitler made clear his view that a war of destruction was about to start and called for the destruction of the Judaeo-Bolshevik intelligentsia. This sentiment generated proposals for the establishment of the Einsatzgruppen and the programme of mass shootings as I have already described. That programme was not, as Browning put it, "micro-managed" by Hitler. But he claimed that it was Hitler whose vision and expectation created a genocidal atmosphere which brought forth concrete proposals for its implementation. Browning argued that Hitler wanted his generals to see the war against Russia as embracing a very strong ideological dimension and not just a conventional war. Having been effectively invited to do so by Hitler, the SS together with the military planners produced concrete plans to turn Hitler's vision into reality.
6.27 The Defendants recognise that the documentary evidence for implicating Hitler in any policy for the systematic shooting of Jews is sparse. There is no "smoking gun". A large number of documents were destroyed, many of them on the orders of Heydrich, so the documentary picture is a partial one. However, the Defendants do highlight a number of documents which, they contend, point, albeit not unambiguously, to Hitler's complicity.
6.28 The starting point for the documentary pointers towards Hitler's complicity is the record of the instructions given by Hitler to General Jodl, Chief of the Army Leadership Staff, on 3 March 1941 in relation to revised guidelines to be followed in the areas of Russia expected to be conquered. Hitler ordained:
"This coming campaign is more than a struggle of arms; it will also lead to the confrontation of two world views. In order to end this war it will not suffice merely to defeat the enemy army ..... The Jewish-Bolshevik intelligentsia, the hitherto oppressor of the people must be eliminated (beseitigt)"
These instructions, together with other similar utterances by Hitler at this time, evidence the central role which, according to the Defendants, Hitler played when it came to converting Nazi ideological thought into concrete action. According to Browning, it is discernible that Hitler was talking not only of military, but also ideological, necessity. As Longerich put it, Hitler was laying the ground for a racist war of extermination.
6.29 There followed what Longerich described as a package of measures, with which Hitler was intimately involved, for the implementation of that war. Following on the heels of Hitler's instructions to Jodl, on 13 March 1941 Jodl issued a directive which stated:
"In the operation area of the Army, the Reichsfuhrer SS is granted special responsibilities by order of the Fuhrer for the preparation of the political administration; these special responsibilities arise from the ultimate decisive struggle between two opposing political systems. In the context of these responsibilities, the Reichsfuhrer SS will act independently and at his own risk".
Longerich infers that the reason why Himmler was being given these undefined special responsibilities was that the Army was not willing to be radical enough in carrying out the policing and security operations.
6.30 Hitler made a similar statement, albeit one not explicitly directed at the Jews, to senior army officers on 17 March 1941 when he said:
"The intelligentsia installed by Stalin must be destroyed (vernichtet). The leadership machine of the Russian empire must be defeated. In the Greater Russian area the use of the most brutal force is necessary"
He spoke in similar vein to a meeting of generals on 30 March 1941, when, according to the abbreviated record of General Halder, Hitler said:
"Communism unbelievable danger for the future ... The Communist is not a comrade, neither before nor after. We are talking about a war of extermination ... We are not waging war in order to conserve the enemy ... war against Russia: extermination of the Bolshevik Commissars and the Communist intelligentsia".
6.31 On 16 July 1941 a conference took place which was attended by amongst others Hitler and Rosenberg. According to a memorandum by Bormann, Hitler said:
"The giant area must naturally be pacified as quickly as possible; this will happen at best if anyone who just looks funny" (or in an alternative translation preferred by Irving "anyone who looks askance at us") "should be shot".
Longerich asserted that Hitler was thereby demonstratively endorsing the brutal massacres which were taking place and in effect authorising execution on suspicion alone. As Browning put it, it was an open shooting licence.
6.32 The Defendants attach considerable importance, in connection with the issue of Hitler's knowledge of the shootings, to an instruction issued on 1 August 1941 to the Einsatzgruppen by Muller, the head of the Gestapo within Heydrich's Security Police, in which he stipulated:
`"The Fuhrer is to be kept informed continually from here about the work of the Einsatzgruppen in the East"
The Defendants' case is that this document (to which I have already made refernce in the preceding section) shows that the reports from the Einsatzgruppen providing information about the executions carried out by them would at least be available on a continuous basis to Hitler. The distribution lists demonstrate how widely these reports were circulated. Copies went to the Reich Chancellery. According to Longerich, there is evidence that a copy of at least one such report went to Bormann. He concluded that it is inconceivable that Hitler did not see the reports. Muller's instruction coincided with the escalation of the shootings from selected groups to indiscriminate killing of Jews including women and children. The Defendants contend that Hitler's apparent wish to be kept informed will have meant that he would have received regular reports of the shooting of the Jews over the following months.
6.33 As I have already mentioned in section V(viii), on 25 October 1941, according to his table talk Hitler said:
"This criminal race [the Jews] has the two million dead from the World War on its conscience, now again hundreds of thousands. Noone can say to me: we cannot send them in the morass! Who then cares about our people? It is good if the terror (Schrecken) we are exterminating Jewry goes before us".
The Defendants say it is to be inferred from these words that Hitler was indeed receiving reports from the Einsatzgruppen as contemplated in Muller's instruction of 1 August.
6.34 On 30 November 1941 Himmler visited the Wolf's Lair. At 13.30, before meeting Hitler for lunch, he telephoned Heydrich in Prague about a transport of Jews from Berlin. Himmler's note contains the entry "Keine Liquidierung" that is in contention between the parties. I have set out the rival arguments in section V(vI) above. On the Defendants' interpretation of that note, the likelihood is that Himmler discussed with Hitler the particular transport from Berlin to Riga. Although Himmler ordered that there should be no killing of the Jews aboard that transport, it is reasonable to infer that Hitler knew about and approved the shooting of other Jews in the East.
6.35 At paragraphs 5.127 to 131 above I have made reference to Goebbels's diary entry relating to his meeting with Hitler on 21 November 1941; the speech made by Hitler to the Gauleiter on 12 December 1941 and Frank's report of that speech on 16 December 1941. I shall not repeat myself, save to say that the Defendants these are relied on by the Defendants in support of their contention that Hitler was aware of and approved the policy of executing Jews and others in the East by shooting.
6.36 An entry in Himmler's appointment book for 18 December 1941 recorded that one of the proposed topics for discussion between himself and Hitler at their forthcoming meeting was the Judenfrage (the Jewish question). Against that entry, apparently (say the Defendants) following the discussion with Hitler, Himmler has noted "als Partisanane auszurotten" (to be annihilated as if partisans). According to the Defendants this shows that Hitler, expressly consulted, approved the killing of the Jews under cover of killing partisans as the solution to the Jewish question.
6.37 The Defendants argue that this interpretation of Himmler's note is confirmed by and consistent with a report no. 51 dated 26 December 1942 on the campaign against partisans in the Ukraine, Southern Russia and Bialystok, which was retyped three days later in larger type, in order, so the Defendants say, that Hitler with his poor eyesight could read it. In its retyped form it is headed: "Reports to the Fuhrer on combating partisans". It is endorsed on the front page "vorgelegt (laid before or submitted) 31.12.42". It reports the numbers killed over the preceding four months. The number of Jews executed is given as 363,211. Browning infers that this is but one of a series of reports which Hitler received in accordance with the instruction issued by Muller on 12 August 1941 that Hitler was to be kept well informed of the shootings being carried out by the Einsatzgruppen.
6.38 Longerich was clear in his conclusion that, if one takes account of the scale of policy of extermination and what it entailed in terms of logistics and expense, it is wholly inconceivable that Hitler was unaware of not only of the fact of the shootings but also of their scale. Such contemporaneous evidence as has survived confirms, according to the Defendants, that Hitler knew and approved. Browning rejected as being absurd the notion that Himmler, who was always anxious to do his master's bidding, would not have discussed regularly with Hitler the wholesale executions of Jews and others by SS units.
Evidence of system and the scale of the shootings
6.39 I have already drawn attention to the number of those who, as Irving eventually admitted, were killed in the East. Irving acknowledged that the evidence shows that there was an appalling massacre of Jews on the Eastern front but he argued that, at least in their initial stages, the shootings were selective, confined to the intelligentsia and served a military purpose. He disputed that the shootings took place on the massive scale alleged by the Defendants. He suggested that many of the figures cited by the Defendants' experts and in the documents on which they relied were "fantasy figures".
6.40 Irving argued that the "ruthless, energetic and drastic measures" against the Jews ordained in the guidelines issued on 19 May 1941 did not mean that they should be shot but rather than they should be arrested and imprisoned. If the guidelines had meant that the Jews were to be killed, they would have said so. Longerich rejected this contention.
6.41 Irving pointed out that Heydrich's instructions of 2 July 1941 strictly limited the Jews who were to be executed to those in state or party positions. He did not accept that it was legitimate to infer that the instructions were intended to be construed more widely simply because the executions thereafter carried out extended far beyond these limited categories. Irving submitted that no evidence has come to light of any order which authorises the execution of broader categories of Jews.
6.42 Irving devoted a considerable amount of time in his cross-examination of Longerich to the details of the killings by Einsatzgruppen A, B, C and D which he derived for the most part from the reports submitted by them. Irving suggested, for example, that some of those reports were compiled by those who, like General Bach-Zelewski, were mass murderers and whose reporting is on that account unreliable. Irving did not accept that the reports of the Einsatzgruppen should be taken at face value. He argued that the leaders of the Einsatzkommandos, which made up the Einsatzgruppen, would have been anxious to impress their superiors with the numbers killed and so would have exaggerated the figures. Browning and Longerich both accepted that some kommandos may have been anxious to avoid appearing to lack zeal and so may have exaggerated their achievements. But Browning considered the figures to be accurate as "ballpark figures". He added (and Irving agreed) that the numbers, even if not precisely accurate, are on any view huge. Longerich concurred. He added that the numbers do not derive solely from the reports of the Einsatzgruppen: there are other sources.
6.43 Irving expressed doubts about the logistical feasibility of the Einsatzgruppen having been able to carry out executions on the reported scale, given their limited numbers and equipment and the other tasks which they were charged with carrying out. The Einsatzgruppen consisted of only 3,000 men. But Browning pointed out that the army was called on to provide support. Longerich calculated that, if allowance is made for the auxiliary manpower available, the total number of those involved in the shootings would have been around 30,000.
6.44 Another argument canvassed by Irving is that the reports may have been inaccurate in their statements of the numbers of Jews shot because the SS auxiliaries would not always have known whether or not those they were executing were Jews. He suggested that this must have been the reaction of British intelligence when they intercepted reports of the numbers killed. Browning responded that the Jager report is illustrative of the care taken to classify Jewish men, women and children. He explained the passive British response to the intercepts probably reflected an inability on their part to comprehend the notion that the Nazis would devote resources sorely required for their war effort to killing vast numbers of Jewish men, women and children whilst there was a war on.
6.45 Irving also argued that there will have been many who, becoming aware of the wholesale murders taking place at the hands of the SS, will have fled eastwards into Russia (there to be met, no doubt, with the same fate). A report dated 12 September 1941 refers to the "gratuitous evacuation" of hundreds of thousands of Jews by inference across the Urals representing an indirect success for the security forces. According to Irving, in calculating the scale of the shootings, allowance should be made for the Jews who fled eastwards to avoid being shot. Irving also suggested that many of the murdered Jews died at the hands of local anti-Jewish populations as opposed being executed by the Einsatzgruppen. Browning's evidence was that such pogroms did occur but for a limited period only in the opening days of the war.
6.46 As I have already said, Irving's stance on this issue fluctuated as the trial proceeded. In course of his own evidence, having advanced a number of reasons for doubting Hitler's knowledge of any systematic programme for the killing of Jews in Russia or elsewhere in the eastern territories, Irving conceded under cross-examination that it was a legitimate conclusion that the shootings in the east were carried out with the knowledge and approval not only of Heydrich but also of Himmler and Hitler himself. He accepted that the reports of numbers killed were sent by the Einsatzgruppen to Berlin on a regular basis. Irving said that he had been unaware until the summer of 1999 of the Muller document of August 1941, according to which Hitler asked for reports from the Einsatzgruppen to be supplied to him. But he conceded that the evidence now available points to there having been a coordinated and systematic direction by Berlin of the killings on the eastern front. In particular Irving accepted in the light of the note in Himmler's appointment book for 18 December 1941 that the massacre of Jews in the Ostland was carried out on the authority of Hitler. He also accepted that there had been a systematic programme for the shooting of Jews and others of which Hitler was aware and which he approved.
6.47 But in the course of his cross-examination of Longerich, Irving put to him a large number of questions which appeared to suggest that it was his case Hitler had no such knowledge and that he did not authorise any such programme or policy. He pointed out that no document has come to light indicating that Hitler expressly authorised the shootings. In the course of his cross-examination Irving advanced various arguments why it would be wrong to suppose that Hitler was complicit in the shooting of Jews and others in the period 1941-2. Irving contended (and Longerich agreed) that prior to the middle of 1941 there is no directive emanating from Hitler that Jews are to be exterminated. Thus there is no indication in the in the instructions or guidelines issued by Hitler to General Jodl and to the High Command Operations staff on 3 March 1941 that Jews are to be executed when the Russian campaign begins. Irving argued that these instructions, as well as the guidelines issued in October 1941, should be seen as purely military measures. Hitler was addressing the issue of military discipline and not authorising or condoning ideological extermination. He was in effect saying that that the Reich was facing a Judaeo-Bolshevik enemy which must be destroyed as a matter of military necessity. No order was issued by Hitler which explicitly said that the Jews must be killed systematically. Moreover, contended Irving the initiative for the orders came from the Nazi High Command rather than from Hitler.
6.48 As to the "special responsibilites" which Jodl directed were, in accordance with Hitler's order, to be given to Himmler, Irving suggested that this flowed from Himmler's wish to enlarge his area of responibility. He claimed that Hitler's attitude was to give Himmler carte blanche without any requirement to let him (Hitler) know what he was doing. In any event, argued Irving, Hitler was concerned for military as opposed to ideological reasons to ensure the security of the area to the rear of the Nazi army as it advanced into Russia. Longerich disagreed: the military and the ideological goals cannot be differentiated.
6.49 In relation to Hitler's various statements in the spring of 1941 to the forthcoming "war of destruction" and the "extermination of the Jews", Irving pointed out that the Nazis were about to embark on Barbarossa, so that these utterances must be seen in a military, rather than an ideological, light. Moreover Hitler was well aware of the ruthlessness of which the Red Army was capable and was issuing a warning what the war would entail. The response of Browning to this proposition is that the campaign had both a military and an ideological objective.
6.50 Irving cast doubt on the Defendants' contention that the Einstazgruppen were set up as a consequence of the preparations laid down by Hitler. Their existence came about, he suggested, "like an act of spontaneous combustion".
6.51 Irving devoted a considerable amount of time to casting doubt on the authenticity of the document dated 1 August 1941 claimed to evidence an instruction by Muller to furnish Hitler with reports of shootings. He pointed out that the document before the Court is no more than an Abschrift: the original is missing. It bears the modest security classification geheim (secret) which is inappropriate for a document related to the Final Solution. Irving produced a letter from the German Federal archives that the document is not to be found in the file from which it purports to come. The Defendants countered this claim by pointing out that the document has been known about and accepted as authentic for twenty years. Copies of the Abschrift are to be found in the Moscow archive as well as in the Ludswigsberg archive. They were also able to point to several documents of a similar sensitivity which were also classified geheim. The reason why no copy of the Muller document was found in the file referred to in the letter from the German archivist is that the wrong file number was quoted. Longerich is in no doubt that the document is an authentic copy of the original. Ultimately Irving accepted its authenticity, although he continued to express considerable misgivings about it.
6.52 In the end Irving took the position that he did not challenge the authenticity of the Muller document. He submitted, however, that since its existence was unknown to him until he was presented with the document in the course of cross-examination, no criticism could fairly be made of him for not taking it into account. The Defendants were unable to accept this evidence. The reasons are, firstly, that the Muller document is set out at page 86 of Fleming's work Hitler und die Endlosung. Irving's marked copy of that book appears to show that he has read the passage at page 86 (although Irving denied it). The second reason is that Fleming gives a reference to the archive where the document can be found in Munich. The third reason is that, when asked about Fleming's book in 1983, Irving answered that it was "a lie". In his evidence Irving claimed that he was basing what he said on reviews of Fleming's book.
6.53 Irving argued that the Muller document does not in any event have the significance for which the Defendants contend. It did not require the Einstazgruppen to report shootings to Hitler. As its heading and text indicate, it related solely to the procuring of visual materials such as placards and photographs as part of the groups' intelligence-gathering operations. Despite this both Browning and Longerich persisted in their contention that the reporting requirement embraced all the activities of the Einsatzgruppen including shooting. But they agreed that this document is the only one to which he can point as evidence for the proposition that Hitler was kept informed of the shootings. Irving stressed that, apart from Event Report no 51, no report has come to light which has been retyped in the large type which Hitler's eyesight required.
6.54 Further evidence relied on by Irving for Hitler's unawareness of any systematic programme of extermination is the entry in Himmler's telephone log for 30 November 1941 relating to a telephone call made by him for Hitler's bunker to Heydrich in Prague. I have already referred at paragraphs 5.97-8 and 5.104 above to the argument which Irving bases on this entry.
6.55 Irving advanced a similar argument in relation to the message sent on 1 December 1941 by Himmler to Jeckeln, the SS chief stationed in Riga, following the shooting of the trainloads of German Jews on arrival in Kovno. This is dealt with at paragraph 5.107-8 above. Browning and Longerich place an opposite interpretation on the Himmler's message to Jeckeln: it was reprimanding Jeckeln for the shooting of the Jews who had arrived in Minsk the previous day from Berlin. Longerich agreed that the message indicates that Jeckeln had exceeded his authority but suggests that so modest a punishment indicates that Himmler was not unduly concerned by the murder of so large a number of Jews. Longerich agreed that the killing of German Jews ceased for some time afterwards. He did not, however, accept that the fact that Jews took provisions with them on the train indicates that there was no intention to kill them. The Jewish Commission paid for the provisions and no doubt the Jews were deceived into believing that they were being taken to a new life in the East. Browning argued that the message, relating as it does to killings in Riga, indicates that the shooting of the Jews in Kovno had been authorised (which is why Jeckeln was not disciplined). Browning claimed that there had been a change of policy afterwards because of the concern felt about German Jews being killed. The guidelines enunciated the new policy.
6.56 In relation to Himmler's appointment book entry for 18 December 1941, Irving accepted that it this context ausrotten means "annihilate" but he quarrelled with the translation of als Partisanen as "to be annihilated as partisans", contending that it really means "as partisans", that is, annihilated because and to the extent that they are partisans. Browning retorted that the primary meaning of als is "as" and that the policy was clearly not to shoot only Jewish partisans because the records show that thousands of women and children were also shot. In relation to that note Irving in the course of his cross-examination of Longerich made for the first time the further suggestion that Himmler may have made the notation als Partisanen auszurotten, not because that was something that he and Hitler had discussed and agreed upon, but rather because it had for some time been Himmler's standard attitude that Jews should be exterminated as partisans. Himmler had expressed that view on previous occasions. So, Irving argued, the note expresses no more than Himmler's own view and does not implicate Hitler. On reflection Irving did not pursue this suggestion. Later in the cross-examination Irving fell back upon the suggestion that the issue was discussed between Himmler and Hitler but that the initiative for shooting the Jews as partisans came from Himmler and not from Hitler. He argued that this is consistent with the passive attitude which Hitler adopted towards the Jewish question.
6.57 Irving pointed out that in a number of their reports the Einsatzgruppen give pretexts for killing Jews. This, argued Irving, is inconsistent with a policy of killing Jews indiscriminately. But Longerich met this suggestion by referring to the so-called Jager report of Einsatzkommando 3 of 1 August 1941 that large numbers of Jews (including many women and children) had been executed without any excuse or pretext being given.
6.58 Irving did not initially accept that the endorsement vorgelegt on report no. 51 of 26 December 1941 meant that Hitler read the document. He asked why else would it be laid before him twice (as the endorsement suggests it was). The Stalingrad crisis was at its height at this time. But later he agreed that it was highly likely to have been shown to him. Irving conceded that it followed that Hitler was to that extent implicated in the murder of 363,000 mentioned in that report.
6.59 When objection was taken on behalf of the Defendants to this sustained line of questioning on the ground that Irving was resiling from admissions he had previously made in cross-examination as to the state of Hitler's knowledge of the shooting, Irving agreed to set out his case in writing. Irving thereupon took the position that, in regard to Eastern European and Russian Jews, Hitler had authorised the summary execution of unspecified numbers of Jewish/Bolshevik intelligentsia and leaders; that Hitler was probably informed of "anti-partisan" operations, though not on a regular basis; that there is evidence that no secret was made of the inclusion of large numbers of (non-German) Jews in the resulting body counts of "partisans". As regards Western European and German Jews, Irving's restated case is that there is no clear or unambiguous evidence that Hitler was aware of any mass murders.
The policy of deporting the Jews
6.60 Whilst it would not be right to say that there is no issue between the parties in relation to the existence of a policy of deporting Jews eastwards, the differences in the parties' respective case appear to me to be comparatively unimportant. The topic can therefore be taken quite shortly.
6.61 According to Longerich, the Nazi policy towards the Jews evolved over the years. In the 1920s and 30s various legal and economic sanctions were applied to Jews in Germany with a view to compelling them to emigrate. Longerich draws attention to various statements made by Hilter at this time which foreshadow a more radical solution to the Jewish question. Towards the end of the 1930s pressure for the emigration and even expulsion of the Jews intensified. The term Endlosung (final solution) came into use, carrying with it the implication that all Jews would be removed from Nazi Germany.
6.62 Hitler's attitude at this time is reflected in an entry in Goebbels's diary for 24 August 1938:
"We discuss the Jewish question. The Fuhrer approves my procedures in Berlin. What the foreign press writes is insignificant. The main thing is that the Jews be pushed out. In 10 years they must be removed from Germany. But in the interim we still want to keep the Jews here as pawns".
6.63 From the outbreak of war in September 1939 the policy towards the European Jews in those countries invaded by the Nazis was to find for them a "territorial solution", that is, to find an area at the periphery of the Nazi empire to which the Jews might be deported and where they might very well perish. At this stage, Longerich agrees, the policy was not a homicidal one, although he adds the rider that there already existed what he called the "perspective" of mass murder. His argument is that this is discernible from the comments made at the time which suggest that it was recognised that it was unlikely that the Jews would survive for long after their deportastion. They would perish through disease or starvation.
6.64 It is the Defendants' case, largely although not entirely accepted by Irving, that the hard-line policy towards the Jews manifested itself when the Nazis invaded and conquered Poland in September 1939. There were two aspects: the first was the establishment of a reservation in Poland between the Vistula and the Bug into which all Jews under Nazi domination would be deported. The second was a programme to execute selected Jews in Poland as a means among others of rendering the country leaderless and destroying it a nation. According to Longerich, the first aspect commenced with the deportation from about the autumn of 1941 of Jews from the Central Europe into the ghettoes in Eastern Europe. The intention was to deport them further east later, probably in the spring of 1942, when they would perish.
6.65 On 18 September Himmler wrote to the Gauleiter in Warthegau, Greiser, informing him:
"The Fuhrer wishes that the Old Reich and the Protectorate be emptied and freed of Jews from west to east as quickly as possible. I am therefore striving to transport the Jews of the Altreich and the Protektorat in the Eastern territories that became part of the Reich two years ago. It is desirable that this be accomplished by the end of this year, as a first and initial step in deporting them even further to the East next spring.
I intend to remove a full 60,000 Jews of the Altreich and the Protektorat to the Litzmannstadt ghetto for the winter. This has, I have heard, the space to accommodate them".
Himmler forewarned Greiser of the arrival of Jewish transports from the Reich. Hitler appears therefore to have initiated the programme of deportation some time before mid-September 1941.
6.66 The deportations, which were initially to ghettoes in Lodz, Rikga and Misk, began in early to mid-October 1941. Although six trainloads of Jews were summarily executed on their arrival at Kovno and in Riga, Longerich agreed that the policy at this time in relation to European Jews was to deport them and not to kill them or at least not to kill them on the spot. The Defendants say that vast numbers of Jews were deported from the Altreich, the Protektorat, Austria, France, Slovakia, Croatia and Romania to the East. Many of these European Jews may have been led to believe that they were going to a new life in the East. That explains why they travelled with food and in some cases with the tools of their trade (although Longerich points out that the food was provided by the Jewish Commission and not by the Nazis). Irving put it to Browning (and Browning accepted) that the extant records relating to deportations, consisting mainly of transport documents, are incomplete. In consequence, suggested Irving, the estimates of the numbers deported vary enormously. Irving maintains that the scale of the intended deportation was nowhere near as comprehensive as the Defendants maintain. In France for example estimates of the number of deportees range from 25,000 to 200,000. (Browning asserted that the consensus now is 75,000 French Jews were deported).
6.67 Irving recognised the emergence of a policy of wholesale deportation of European Jews. He accepted that Hitler was an advocate of this policy. Indeed Irving's case is that the deportation of the Jews continued to be Hitler's preferred solution to the Jewish question until 1942. The so-called "Magagascar plan", whereby the Jews were to be deported from the Reich to the island off the east coast of Africa, was not abandoned until then. Thereafter it is Irving's case that Hitler wanted the entire Jewish question put off until after the end of the war (see section V(ix) above under the heading "The Schlegelberger note"). Whether or not Irving is right about that, he firmly rejected the contention for the Defendants that the evidence shows that there was to the knowledge of Hitler a genocidal implication underlying the policy of deportation.
Genesis of gassing programme
The origins of the use of gas by the Nazi regime
6.68 In order to pinpoint the origins of the Nazi practice of killing by the administration of poison gas, it is necessary to go back some years. There was a measure of agreement between the parties that the Nazis moved from the gassing of the disabled to the gassing of able-bodied Jews in the period from 1939 to early 1942.
6.69 As Irving accepted, the so-called "euthanasia programme" was authorised by Hitler in September 1939. It permitted specified doctors to put to death those suffering from grave mental or physical disabilities. Thousands were killed, mostly by the administration of carbon monoxide gas kept in bottles. In addition, however, many were killed using gas vans which the victims of the programme were induced to enter, whereupon the exhaust of the vans was pumped inside killing those inside within 20 minutes or so. The euthanasia programme was discontinued on Hitler's order in August 1941 because it was causing public disquiet.
The use of the gas vans to kill healthy Jews
6.70 As Irving also accepted, the gas vans and associated personnel were then moved to the East and placed at the disposal of Globocnik, the SS officer in charge of police in Lublin, where they arrived in late 1941 and early 1942. In September 1941 there is evidence that experimental gassing of Soviet POWs and others took place in Auschwitz. On 25 October 1941 Himmler met Globocnik at Mogilev, where an extermination camp was planned. On the same day Wetzel of the Ostministerium in Berlin met, firstly, Brack, a senior official of the Reich Chancellery who had been involved in the euthanasia programme, and later Eichmann. Wetzel drafted a letter to Rosenberg (Reichsminister for the Occupied Eastern Territories) and Lohse (Reichskomissar for the Ostland) that Brack was prepared to help set up gassing apparatuses in Riga and that there were no objections if Jews who were not fit for work were "removed" by these apparatuses. On the same evening Hitler met Himmler and Heydrich.
6.71 The experimental use of the gas vans continued. In November 1941 30 prisoners were killed by exhaust fumes from a van at Sachsenhausen. There was debate in the course of the evidence about the number of vans employed and their killing capacity. Longerich maintained that a minimum of six vans were used. Irving suggested only three were ever built. The Defendants adduced in evidence a report from a sergeant in the motor pool dated 5 June 1942, which records that 97,000 had been killed by means of the use of three vans over the preceding six months. Irving made a number of observations about the document designed, as he put it, to plant suspicion about it. For instance he queried how 97,000 could have been killed over that period, when according to court records only 700 were killed in gas vans in an action "lasting several days" at the end of November 1991. The figure of 97,000 struck Browning as perfectly feasible. He testified that the carrying capacity of the vans ranged from 30 to 80 people and that the arithmetic indicates that the three vans would have been capable of putting 97,000 to death in a period of 172 days. As to the 700 killed over several days at the end of November 1941, Longerich explained that after a period of experimentation, the Nazis improved their technique. In the end Irving accepted the authenticity of the sergeant's report.
6.72 Whilst Irving does not dispute that homicidal use was made of gas by the Nazis during the euthanasia programme and that thereafter the vans were put to use in the East to kill Jews in increasing numbers, he does quarrel with the Defendants' estimates as to the numbers killed. What is more important, Irving disputes the claim advanced by the Defendants that Hitler was kept informed of the killing of Jews by gas and approved it. I shall therefore summarise the parties' respective arguments on these contentious issues.
The Defendants' case as to the scale on which Jews were gassed to death at camps excluding Auschwitz and the extent, if any, of Hitler's knowledge of and complicity in the killing.
6.73 The Defendants accept that initially Hitler's attitude towards the problem of finding a solution to the problem of the Jewish "bacillus" was that the Jews should be deported from the Reich. They contend, however, that there is circumstantial and documentary evidence that, from about the autumn of 1941, this policy was reversed and that, with the knowledge of Hitler and at his instigation, the policy was adopted of deporting Jews en masse from Europe and killing them in death camps on the eastern borders of the Reich. It was the contention of Longerich that, as the killings of Soviet Jews by shooting spread in the period from autumn 1941 to spring 1942 from the Soviet union to other regions, in particular to the Warthegau, Lublin, Riga, Minsk and Serbia, so in these same areas plans were made for the construction of gas killing facilities. In so far as it related to the area of the General Government this operation was code-named Operation Reinhard.
6.74 There is little mention of Operation Reinhard or Aktion Reinhard in the surviving contemporaneous documents. Browning referred in his report to a document dated 18 July 1942 mentioning "Einsatz Reinhard". There are several other documents marked "AR". According to the Defendants little documentary evidence survives because the records relating to it were ordered to be destroyed in January 1944. Nonetheless, say the Defendants, the evidence does establish that deportation of European Jews to ghettoes and thence to camps at Chelmno, Semlin, Belzec, Sobibor and Treblinka took place on a massive scale. The Defendants contend that the assignment to construct the death camp at Belzec was entrusted by Himmler to Globocnik at a meeting between them on 13 October 1941. Although the document recording the proposal for their meeting referred to taking "security-political steps" against the Jews and to "limiting their influence", Longerich contended that it is legitimate to infer that the plan to build the Belzec death camp originated at this meeting. Globocnik was looking for more radical solutions for the Jewish question and the building work started at Belzec started soon afterwards.
6.75 A start was made on the construction of Belzec in October 1941. Another huge complex of gas chambers was planned (but not proceeded with) at Mogilev. Similar facilities were commissioned at Chelmno, Sobibor and Treblinka. Browning testified that the use of the gas vans at camps, starting at Chelmno and Semlin, was an intermediate phase, coming between the shootings by the Einsatzgruppen and the use of primitive gas chambers at those camps and elsewhere. The custom-built gas chambers at Auschwitz came later. On arrival at the camps the great majority of these Jews were killed in gas chambers or by other means. Of these camps Chelmno was situated to the north-west of Lublin; Semlin was outside Belgrade; Belzec and Sobibor were in what was then south-eastern Poland not far from Lublin and Treblinka is north-east of Warsaw close to the frontier at that time with Russia. Longerich testified that it might in broad terms be said that the policy of exterminating the Jews evolved out of the policy of deporting them. Indeed it is, he claimed, impossible to draw a demarcation line between the two policies. The Nazis were well aware that the policy of deportation to the East resulted in the death from starvation or disease of many of those who were deported. Longerich termed this Vernichtung durch Arbeit (annihilation through work). There was some debate whether that term had been used at the time. But in the end it was common ground that it mattered little whether such a label was used. Longerich was clear in his opinion that such a policy as effectively equivalent to a policy of outright killing.
6.76 Other aspects of Operation Reinhard were the collection and use of materials belonging to the Jews (watches and the like) and the selective use of Jewish labour. It was an SS operation under the direction of Globocnik, who was answerable to Kruger, chief of police in the General Government, who in turn was answerable to Himmler. According to Browning, there is evidence that Globocnik on occasion dealt directly with Himmler.
6.77 Longerich contended that it appeared from the evidence that the Jews who were sent to the death camps were in the first instance local Jews from local villages and ghettos in the region. This phase commenced at Chelmno on 8 December 1941, from which date about 140,000 Jews from the Warthegau were gassed there. The same occurred at Belzec (where the gassing, mainly of Jews from the area of Lublin, started in March 1942), Sobibor (where gassing started in May 1942) and Treblinka (where the gassing started in July 1942). The extermination of these local Jews made way in the ghettos for the European Jews to replace them.
6.78 Gassing commenced at Auschwitz between September and December 1941, when 600 Soviet prisoners of war were killed by the administration probably by means of bottles of Zyklon-B gas in the basement of Block II. Irving, by reference to a passage from a book by van Pelt referring to the death of Soviet Jews because the lack of hygiene at the camp, suggested that the deaths were not due to poisoning by gas.
6.79 At the same time as the local Jews were being put to death in these camps, the programme of deporting German Jews (that is, Jews from those parts of Europe in Nazi control) to the East was being implemented. These Jews (or those of them who were judged unfit for labour) were initially sent to ghettos but they were ultimately transported onwards to the camps where they were killed in the gas chambers, principally at Belzec. The liquidation of the German Jews ran from the spring of 1942 onwards. This was the second phase of the extermination programme. It was, said Longerich, a systematic programme of extermination, albeit one that gradually emerged.
6.80 What is the evidence for mass extermination of Jews at those camps? The consequence of the absence of any overt documentary evidence of gas chambers at these camps, coupled with the lack of archeological evidence, means that reliance has to be placed on eye witness and circumstantial evidence, which I shall shortly summarise. In giving an account of the Defendants' case as to the scale of the exterminations, I shall also summarise their argument that Hitler was complicit in the mass murder. The starting point is the evidence, such as it is, which is contained in contemporaneous documents.
6.81 I have referred at paragraph 6.70 above to the meeting which took place between Hitler and Himmler and Heydrich on 25 October 1941. Although the plan to construct gas chambers at Riga was not implemented, it is further evidence, say the Defendants, of the genesis of a policy, agreed at a high level, to use gas as a method of extermination.
6.82 From about that date, according to the Defendants, Hitler made repeated references to the extermination of the Jews and to doing away with them. On 16 November 1941 Rosenberg met Hitler and Himmler, who the next day (according to his Dienstkalendar) told Heydrich by telephone that he had discussed the Beseitigung (doing away with) of the Jews. Two days later Rosenberg gave a confidential briefing to the press in which he spoke of the biological eradication of the whole of Jewry in Europe. From this date onwards, according to the Defendants, Hitler's pronouncements on the Jewish question, become more frequent and increasingly blunt.
6.83 The Defendants attach significance to Hitler's speech to the Gauleiter on 12 December 1941 (already referred to in section V) when, according to Goebbels's diary, he said:
"... Concerning the Jewish question the Fuhrer is determined to make a clean sweep. He prophesied that, if they were once again to cause a world war, the result would be their own destruction. That was no figure of speech. The world war is here, the destruction (Vernichtung) of the Jews must be the inevitable consequence. The question must be seen without sentimentality. We are not here in order to have sympathy with the Jews, rather we sympathise with our own German people. If the German people have now once again sacrificed as many as 160,000 dead in the Eastern campaign, then the authors of this bloody conflict must pay with their lives".
According to Browning, this speech stemmed from the recognition that an early end to war was no longer on the cards. It made clear that the Nazis would nonetheless proceed with the extermination of Jews generally and not just the Jews in the occupied eastern regions.
6.84 As already stated in section V above, Hans Frank, General Governor of the General Government, attended the meeting on 12 December 1941 (and, according to Browning, may well have had a meeting with Hitler). Four days later he passed on what he had learned in Berlin to his subordinates, telling them what Hitler had said and adding:
"But what is to happen to the Jews? Do you believe that they will be lodged in the settlements in the Ostland? In Berlin we were told: why all this trouble, we cannot use them in the Ostland or the Reichskommissariat either; liquidate them yourselves! Gentlemen, I must ask you: arm yourselves against any thoughts of compassion. We must destroy the Jews, wherever we encounter them and wherever it is possible, in order to preserve the entire structure of the Reich ... [for the omitted words see below] ...nonetheless we will take some kind of action that will lead to a successful destruction, and indeed in conjunction with the important measures to be discussed in the Reich".
The Defendants rely on what Frank said as further evidence of the emerging policy of destroying the Jews by killing them.
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 on 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".
Irving's response: Hitler's knowledge of the gassing at the Reinhard Camps
6.114 In regard to Hitler's speech to the Gauleiter on 12 December 1941, Irving denied that it constitutes evidence of Hitler's knowledge of a policy of exterminating the Jews. He dismissed it as "the old familiar Adolf Hitler gramophone record" harking back to his 1939 prophecy as to the fate awaiting the Jews. Browning considered that its terms indicate that a decision had been taken what to do about the Jews ("the Fuhrer has decided ..."). Irving was reluctant to accept that Goebbels was accurately recording what Hitler had said and argued that he may have been interpolating his own aspirations in regard to the Jews.
6.115 Irving is critical of Browning for the tendentious omission from his account of Frank's speech of 16 December 1941 of Frank's statement:
"We cannot shoot [the Germans in the General Government]. We cannot poison them".
According to Irving, those words make clear that Frank was ruling out extermination as a solution, which makes nonsense of the Defendants' argument that the speech is evidence of a policy of extermination. Browning drew attention to the immediately following words, "We will find a way to bring about a successful destruction", which he argued demonstrate that what Frank was saying was that alternative means must be found of getting rid of the Jews. Irving's riposte is that gassing is no less objectionable than poisoning.
6.116 Irving argued that a similar inference that the policy continued to be one of deportation further east could be drawn from Hitler's statement on 27 January 1942, as recorded in his Table Talk. Irving relied also on Hitler's reported reference on 30 January 1942 to the Jews "disappearing from Europe" to be resettled in central Africa. But Longerich countered that these remarks, made at the time of the Wannsee conference, must be regarded as camouflage for public consumption. To take these statements by Hitler at their face value would, according to Longerich, be wholly irreconcilable with the mass exterminations which were already under way at Chelmno and Belzec. Longerich asserted that Hitler and Goebbels were constantly talking about the Jews; that Hitler was well aware of the mass gassings but they were guarded in what they said or wrote about them.
6.117 Irving refused to accept the claim of Longerich that there is evidence that there was a systematic expulsion of the eastern Jews from the ghettos in order to send them to the death camps so as to make way for the German and European Jews who, having arrived in large numbers in the east in trainloads from the rest of Europe, were kept for a while in the ghettos before themselves being sent to the gas chambers. If this occurred , argued Irving, orders and plans would surely have been found. Irving maintained that the evidence for saying that there was a systematic policy of extermination is inferential or secondary. Longerich's explanation for the lack of documentation is that, for reasons of secrecy, much of the planning was discussed verbally between Hitler and Himmler; that the Nazis tried systematically to destroy documents and files on this subject with the result that such documents as have survived are spread round European archives and that the death camps were systematically destroyed by the Nazis at the end of the war.
6.118 Irving pointed out, correctly, that the protocol issued following the Wannsee conference on 20 January 1942 did not discuss methods of killing but rather talked in terms of finding solutions. Irving argued that the minute of the conference makes reference to "the evacuation of the Jews" having stepped into the place of emigration as a solution to the Jewish question. Why, asked Irving, should "evacuation" not be given its natural meaning. Longerich answered this question by pointing to the immediately following paragraph of the minute, which he regards as the central passage, where Heydrich explains what is to be the Final Solution. Heydrich talks of those Jews who survive the work gangs being "dealt with accordingly" for, if released, they would form the seed of a new Jewish regeneration. But Irving put a different construction on the paragraph: he contended that Heydrich was speaking of what should happen after the release (bei Freilassung) of the Jews. Heydrich was proposing the Jews should upon their release be free to regenerate themselves somewhere outside the Reich. Longerich countered by saying that regeneration of the Jews was precisely what Heydrich was concernd to ensure did not happen. If Heydrich had been contemplating what would happen after the Jews were released, he would have used the term nach Freilassung.
6.119 What is more, argued Irving, there are clear indications in the minute of the conference that the Final Solution was not to be embarked upon until after the war, when mass extermination of the Jews would have been out of the question. Longerich doubted the impracticability of carrying out the Nazi Final Solution if the Nazis had won the war. But he added that Heydrich clearly intended the Jewish work gangs to be put to work forthwith (nun). Longerich did, however, agree that the implementation of the programme of killing all the Jews would not be capable of being completed until after the war was over.
6.120 Next Irving relied, in support of his argument that the topic of killing Jews was not discussed at Wannsee, on the statements to that effect made after the war by most of the participants. Longerich and Browning both answered that there is nothing surprising or convincing about those denials: they were made during the Nuremberg trials and were plainly self-exculpatory. Irving also relied on an extract from a speech made by Heydrich a week or so later in Prague, which is quoted in part in a book by the historian Gotz Aly. Himmler referred in that speech to the option of deporting the Jews to the White Sea (in northern Russia), which he describes as an ideal homeland for them. Irving suggested that Himmler's words should be taken at face value. But Longerich disagreed: he pointed out that Gotz Aly, the author of the book which quoted the speech, is himself of the opinion that the policy of extermination was decided upon in October 1941. Moreover, added Longerich, there is no evidence that any Jew was in fact sent to the White Sea nor is there any evidence that any camp was constructed for them there.
6.121 Irving further relied on a letter written in June 1942 by Walter Furl, the officer stationed in Krokow who was responsible for resettlement in the General Government, to his SS officers in which he described how trainloads of Jews arrived at Krakow and were given first aid and provisional accommodation, before being deported towards the White Sea where many of them would assuredly not survive. This, said Irving, is further evidence that the policy continued to be deportation not extermination. What, according to Irving, is significant is that the Jews in question were not sent to Auschwitz. Longerich dismissed this as camouflage, as did Aly Gotz who first quoted the document and who undertook considerable research in the area. There is no evidence that any camps were constructed in the area or that trains ran from the Polish towns to the White Sea or that roads leading in that direction were ever built. The Defendants say that Furl was concerned to conceal the fact that the Jews in question were going to be shot, probably in Minsk. Irving replied that there was no reason why Furl would want to pull the wool over the eyes of his comrades. If that had been Furl's intention, why should have referred openly to many of the Jews assuredly not surviving. Irving complained that, on every occasion when a document appears which does not fit in with the Defendants' thesis, they dismiss it as camouflage or euphemism.
6.122 Irving claimed to find support for his contention that the policy towards European Jews was not genocidal in a letter from Himmler to the Minister of Finance dated 17 August 1942. He argued that it proposed, on grounds of cost, that the French Jews should be housed in a camp to be built on the western boundary of France rather than have them transported across the Reich to Auschwitz. Longerich replied that this letter is pure deception.
6.123 Irving next relied on a report by Horst Ahnert of a meeting on 1 September 1942 at which Eichmann, who chaired the meeting, informed participants that the current programme for the evacuation of Jews from France was to be completed by the end of the year. The report referred to the commandant of Auschwitz having requested that deportees should take with them blankets, shoes and feeding utensils. Irving argued that such a request would not have been made if the Jews were going to be executed on arrival. Longerich responded that the request was no doubt made because not all Jews were executed on arrival: those who were fit enough were sent to the labour camp, where they would need food and clothing. Irving relied on another section of the report of this meeting which stated that the purchase of barracks, requested by the chief of security policy in The Hague, for the construction of camp in Russia should be put in hand. Irving deployed this part of the report as further evidence that the Dutch Jews were not going to be deported to a death camp. Longerich had no knowledge of any such camp having been constructed in Russia. He did, however, concede that there are odd references in documents which date from this period to the construction of camps to house Jews. Longerich was not prepared to accept the suggestion put to him by Irving that such documents evidenced a non-genocidal intention towards the Jews. The evidence that Jews were at this time being massacred in large numbers is, he contends, overwhelming. His argument was that Eichmann and others were camouflaging what was going on.
6.124 Irving relied on another letter written on 28 December 1942 by Furl to Pohl about the measures to be undertaken by the doctors at certain camps to ensure that the mortality rate was reduced. This letter, suggested Irving, is inconsistent with the existence of a policy of to exterminate all Jews. Longerich disagreed: Pohl was in charge of the labour concentration camps and had no responsibility for the Operation Reinhard death camps. It follows, say the Defendants, that the letter does not touch upon the question what was happening in the death camps
6.125 In relation to the Kinna report of 16 December 1942, Irving accepted that it is an important document in that it does indeed indicate that Jews at Auschwitz could be killed at will. But he pointed out that the author of the report was a junior SS officer, who may have been imprecise in his use of language.
6.126 Irving also placed reliance on the fact that no archaeological evidence has been uncovered which confirms the existence of gas chambers at any of these camps; indeed the only camp where excavation has been carried out is Belzec and that has only just started.
6.127 Irving made clear that he regards eye witness evidence as deeply suspect. As in the case of Auschwitz, to which I will turn shortly, Irving is inclined to dismiss all such evidence on the ground that it is either the product of duress or bribery or some other inducement or is otherwise unreliable. When I come to deal with Auschwitz I shall recite the various reasons advanced by Irving for dismissing or at least treating with extreme scepticism the evidence of eye-witnesses. Irving was critical of the reliance placed by the Defendants' experts on this body of evidence in its entirety. But he selected, by way of example of his general attack on their credibility, individual witnesses for specific criticism.
6.128 He suggested that Eichmann said what he did out of a desire to please or perhaps was subject to some psychological impulse to incriminate himself. He suggested further that Eichmann may have been suffering from sleep deprivation when he gave evidence at this trial. He pointed out that Eichmann claimed wrongly that he was acting pursuant to a Hitler order (having been told so by Heydrich). He suggested that journalist may have invented Eichmann's confession to spice up the report of the interview he had with him whilst he was still at liberty.
6.129 As to Gerstein, Irving doubted his claim to have been a covert anti-Nazi. He suggested that it was most unlikely that he and Pfannenstiel would have been permitted to observe events which were treated as top secret. Irving suggested that it would have been "no skin off [Pfannenstiel's] nose" to admit having watched the gassing when asked about it. He drew attention to the many fantastic claims made by Gerstein in his various accounts, for example his claim that Globocnik told him that between 10,000 and 25,000 Jews were being killed per day at each of the camps and his claim to have seen piles of shoes 25 metres high. Browning conceded that Gerstein was prone to extraordinary exaggerations but he would not accept that he has been wholly discredited. Besides, said Browning, Gerstein is corroborated by others.
6.130 Despite the arguments which he advanced and which I have summarised, Irving, after being repeatedly pressed, did finally concede that one of the proposed methods of liquidation was by the use of carbon monoxide in gas chambers. He further accepted that on the balance of probabilities from the spring of 1942 (and earlier in the case of Chelmno) hundreds of thousands of Jews were deliberately killed at those camps. What he does not accept, however, is that any of these camps were purpose-built death camps. To take Treblinka as an example, Irving asserted that forensic tests and aerial photographs indicate that there was no purpose-built extermination facility there.
6.131 As regards the scale of the exterminations at these camps, Irving did accept that hundreds of thousands of Jews were intentionally killed, by some means or another, at Belzec, Sobibor and Treblinka. He agreed that the contemporaneous evidence discloses daily trains transporting Jews in large numbers (perhaps as many as 5000 per train) eastwards from various departure points to Treblinka, Sobibor and Belzec. Although he queried at one point how the corpses had been disposed of, he did not resile from his acceptance that Jews were killed in huge numbers in the camps at these three villages.
6.132 In connection with the scale of the extermination whch took place in the death camps, Irving relied two documents, one bearing the initials of Himmler, which reported the amount of property taken from Jews in the period to 30 April 1943, evidently in the execution of Operation Reinhard, for distribution amongst Nazi units. The figure for wrist and pocket watches, totalling about 120,000, indicates, according to Irving, that a relatively small number of Jews were dispossessed and a correspondingly lower figure deported and killed. Browning did not accept that the list of property was a complete list of all property removed. He did not consider that the documents assist in determining the likely number of deportees.
Irving's response: Hitler's knowledge of and complicity in the gassing programme
6.133 Turning to the issue of Hitler's knowledge of and complicity in the gassing programme, Irving argued that there is no evidence that Hitler was personally involved in the decision to transfer the gas vans which had been used in connection with the euthanasia programme to the East to assist in liquidating Jews there. Longerich replied that Hitler was intimately involved with the euthanasia programme, so it is logical to assume that he would have been similarly involved in the transfer of the equipment and personnel to the eastern front once the euthanasia programme was halted. The documents show that the Fuhrerkanzlerei was involved in the transfer and the Chancellery reported to Hitler.
6.134 Irving argued that, at least until October 1943, it remained Hitler's preferred solution to the Jewish problem that the Jews should ultimately be deported but not until the war was over. Whilst he accepted that, at least in general terms, Hitler was aware that Jews were being shot in large numbers by the Einsatzgruppen, he contended that the evidence does not establish Hitler's involvement in or his knowledge of Operation Reinhard, that is, the operation involving the killing of hundreds of thousands of Jews in gas chambers at the Reinhard death camps. Irving's stance was that, whilst Hitler had no excuse for not knowing about the extermination programme from October 1943 onwards, the documents are unhelpful as to his state of knowledge over the previous 18 months or so. In this context Irving again emphasised that there is no "Hitler Befehl" (Hitler order). The eminent German historian Hilfberg originally claimed that there had been but in later editions he took out all references to there having been such an order. Irving criticised Browning's claim that Hitler gave signals and set expectations as "frightfully vague". But he did recognise that, if Hitler had been informed of the killings prior to October 1943, he would have raised no objection.
6.135 As to the Wannsee conference, said Irving, Hitler was not present and there is no evidence that he was apprised of the discussions which there took place. Heydrich's claim to have the authority of Hitler was either pro forma or a false claim designed to provide reassurance to those present.
6.136 Irving underlined the fact that from 1938 right through to 24 July 1942, as evidenced by his Table Talk for that day, Hitler continued to talk of the Madagascar plan. Browning agreed that until about 1940 that was a concrete plan on which the Nazis people were working which they might have attempted to implement but he asserted that after 1940 it became an anti-semitic fantasy. Irving maintained that Hitler's preferred solution to the Jewish question was deportation and not genocide.
6.137 Irving accepted that SS General Wolff, one of whose roles was to act as a conduit between Himmler and Hitler, would have told Hitler about the transports of Jews to the death camps. But he relied on the post-war recollection of Wolff (dismissed by Longerich as self-serving) that he was certain that Hitler did not know what was going on. Irving produced an extract made in manuscript from a document contained in the Munich archive in which Wolff is recorded as having said in 1952 that only 70 odd people ranging from Himmler to Hess (whose association went back to the 1920s) were involved in the extermination of the Jews. When the complete document was obtained, it became apparent that Wolff had said that "probably" (wohl) only those 70 had been involved. Wolff is also recorded as having said that Bormann and Himmler were the real culprits; they had taken the view that the Jewish problem had to be dealt with without Hitler "getting his fingers dirty". Himmler is said by Wolff to have taken the whole burden on his own shoulders for the sake of the German people and their Fuhrer. Irving relied heavily on this document, emanating from someone close to both Himmler and Hitler, as convincing evidence that Hitler was not implicated in or even aware of the killing in the death camps.
6.138 Dealing with the Wolff document, Longerich described it as "interesting" in that it refers to millions of Jews having been killed and to "the gassing idea" probably having emerged when an epidemic broke out. He observed parenthetically that in his translation Irving translated Ausrottung as "extermination". But Longerich was distinctly unimpressed by the record of the interview as a whole: Wolff was plainly concerned to distance himself from the events of the Holocaust. Unless he placed on record his denial that Hitler had any knowledge of the murders, it might be inferred, since he was the conduit between Himmler and Hitler, that he was himself implicated. Moreoever Wolff was and remained an admirer of Hitler anxious to portray him in the best light. Longerich was unable to accept that Himmler was acting unilaterally, not least because he had himself referred to the burden of carrying out this very hard order placed on his shoulders by Hitler, when writing to Berger on 28 July 1942. In any event Longerich considered that the figure of seventy for those involved in the "ghastly secret" was too low. Wolff in the interview himself described Himmler as subservient. Longerich observed that this description ill accorded with the notion that Himmler was acting on his own initiative. The interview of Wolff is in his opinion worth little and should be discounted.
6.139 Irving rejected the criticism levelled at him that, in his use of Wolff's recollections, he picked that part which fitted with his thesis about Hitler's ignorance about the mass extermination policy and ignored or suppressed the rest, in particular Wolff's references to gassing and to millions of Jews having been murdered. Irving surmised that Wolff referred to the gassing idea because he had read about it in the newspapers since the war.
6.140 Irving argued that, whilst there may be documents which at least arguably incriminate Himmler, they do not implicate Hitler. Moreover he argued that, when Himmler stated on 28 July 1942 that Hitler had placed on his shoulders the implementation of this very difficult order, what he meant was that Hitler had left it entirely to Himmler to decide by what means to empty the Ostland of Jews. In other words Hitler was not involved. Similarly Irving relied on Himmler's remark of 4 October 1943 that "we do not talk about this between ourselves" as indicating that the exterminations were kept from Hitler. Irving notes that in his speech on 6 October 1942 Himmler claims that it was he, rather than Hitler, who took the decision to extend the shooting to women and children.
6.141 Irving rejected Longerich's claim that it is inconceivable that Himmler did not discuss with Hitler the extermination of Jews by gassing. He dismissed that claim as mere speculation based on little more than the fact that they met and spoke regularly. At the time there were many other more pressing matters to attend to. Longerich answered that it is absurd to argue, as does Irving, that Himmler could have carried out the vast, expensive and logistically complex enterprise behind Hitler's back. Browning likewise argued that, from his understanding of the relationship between the two of them, Himmler was not a man to act without the authority of the Fuhrer. Both Browning and Longerich contend that it was a Hitler order which initiated the executions, which were carried out with the full knowledge and approval of Hitler.
6.142 Irving pointed to the absence from Gauleiter Greiser's letter to Himmler of 1 May 1942, concerning the "special treatment" of 100,0000 Jews in his area, of any reference to Hitler having authorised their being killed. The letter talks entirely of authority having been given by Himmler and Heydrich. Greiser, argued Iriving, would have wanted to be sure that Hitler approved the "special action". Longerich agrees that there is no reference to Hitler having given such authority but claims that it is clear that Greiser was only too keen to conduct the operation and did not feel any need for Hitler's go-ahead.
6.143 Irving referred to the evidence given at Nuremburg by Frank, General Governor of the General Government, who recalled having asked Hitler on 2 July 1944 about rumours of Jews being exterminated. According to Frank, Hitler in reply acknowledged that executions were going on but apart from that claimed to know nothing. When Frank persisted, Hitler suggested Frank should ask Himmler.
6.144 In answer to the criticism made of him that he omitted to mention that Frau Schroeder had written to the journalist Gita Sereny that Hitler knew what was being done about the Jewish question by virtue of his private conversations with Himmler, Irving testified in the course of the present trial on 21 February 2000 that he had not done so because Ms Sereny had produced no record or notes or anything of any such interview, so he had concluded that she was making the whole thing up. It was then put to him that in a parallel action he had written to solicitors acting for Ms Sereny seeking specific disclosure of notes of that and other interviews. In reply their dated 10 February 2000 Ms Sereny's solicitors had informed Irving that there were no notes because Frau Schroeder had imparted her information about Hitler by means of a letter which had already been disclosed. The solicitors gave Irving the disclosure number. Irving repudiated the suggestion put to him later that his early answer on 21 February had to his knowledge been false. He claimed that he had not had time to look out the letter to which Ms Sereny's solicitors had referred him. He refused to withdraw the allegation that Ms Sereny had made the whole thing up.
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