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Subject: Irving v. Penguin & Lipstadt: Judgment VI-03
Organization: The Nizkor Project
Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-06.03
Last-Modified: 2000/04/11

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

Introduction

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.

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