Table of Contents

I. INTRODUCTION

1.1 A summary of the main issues

1.1 In this action the Claimant, David Irving, maintains that he has been libelled in a book entitled "Denying the Holocaust - The Growing Assault on Truth and Memory", which was published by Penguin Books Limited and written by Professor Deborah Lipstadt, who are respectively the First and Second Defendants in the action. (For the sake of brevity I shall refer to them, as in due course I shall refer to the expert witnesses, by their last names).
1.2 The essential issues in the action can be summarised as follows: Irving complains that certain passages in the Defendants' book accuse him of being a Nazi apologist and an admirer of Hitler, who has resorted to the distortion of facts and to the manipulation of documents in support of his contention that the Holocaust did not take place. He contends that the Defendants' book is part of a concerted attempt to ruin his reputation as an historian and he seeks damages accordingly. The Defendants, whilst they do not accept the interpretation which Irving places on the passages complained of, assert that it is true that Irving is discredited as an historian by reason of his denial of the Holocaust and by reason of his persistent distortion of the historical record so as to depict Hitler in a favourable light. The Defendants maintain that the claim for damages for libel must in consequence fail.
1.3 Needless to say, the context in which these issues fall to be determined is one which arouses the strongest passions. On that account, it is important that I stress at the outset of this judgment that I do not regard it as being any part of my function as the trial judge to make findings of fact as to what did and what did not occur during the Nazi regime in Germany. It will be necessary for me to rehearse, at some length, certain historical data. The need for this arises because I must evaluate the criticisms of or (as Irving would put it) the attack upon his conduct as an historian in the light of the available historical evidence. But it is not for me to form, still less to express, a judgement about what happened. That is a task for historians. It is important that those reading this judgment should bear well in mind the distinction between my judicial role in resolving the issues arising between these parties and the role of the historian seeking to provide an accurate narrative of past events.
 

The parties

1.4 David Irving, the Claimant, embarked on his career as an author in the early 1960s shortly after he left Imperial College London. He is the author of over 30 books, most of which are concerned with the events of and leading up to the Second World War (some of which were written and published in Germany). Amongst the better known titles are The Destruction of Dresden, Hitler's War (1977 and 1991 editions), Goebbels ... Mastermind of the Third Reich, Goering ... a Biography and Nuremberg ... The Last Battle.
1.5 As these titles suggest, Irving has specialised in the history of the Third Reich. He describes himself as an expert in the principal Nazi leaders (although in his opening he was at pains to make clear that he does not regard himself as an historian of the Holocaust). Many of his works have been published by houses of the highest standing and have attracted favourable reviews. It is beyond dispute that over the years (Irving is now aged 62), he has devoted an enormous amount of time to researching and chronicling the history of the Third Reich. The books themselves are eloquent testimony to his industry and diligence.
1.6 Apart from his books Irving has written numerous articles and, particularly in recent years, lectured and spoken both in Europe and the Americas and participated in numerous radio and television broadcasts. He emphasises that his reputation as an historian is founded upon his output of books.
1.7 As to his political beliefs, he describes himself as a Conservative with laissez-faire views. He mentions that he has not applauded the uncontrolled tide of Commonwealth immigration.
1.8 The 2nd Defendant, Deborah Lipstadt, lives and works in the United States. She was raised in a traditional Jewish home (her parents having migrated from Germany and Poland). She attended City College of New York and spent a year at the Hebrew University in Jerusalem, where she took a series of courses on the history of the Holocaust, subsequently staying on for a further year. On her return to the United States she completed an M.A. and a Ph.D. in Jewish Studies.
1.9 Since then Lipstadt has pursued an academic career teaching modern Jewish history with an emphasis on the Holocaust. In 1993 she moved to   Emory University, a research institution in Atlanta, Georgia, where she is Professor of Modern Jewish and Holocaust Studies. She has written two books about the responses to the Holocaust, Beyond Belief: the American Press and the Coming of the Holocaust 1933-1945 and the book which has given rise to the present action, Denying the Holocaust. The latter was published by Penguin Books in an American edition and thereafter in an English paperback edition.
1.10 I should for the sake of completeness add that initially a number of individuals were joined as additional Defendants. The action is not pursued against them.

II. THE WORDS COMPLAINED OF AND THEIR MEANING

The passages complained of

2.1 In Denying the Holocaust Lipstadt examines the origins and subsequent growth in the scope and intensity of what she describes as the phenomenon of Holocaust denial. She identifies several adherents of the revisionist movement and examines the basis for their beliefs, their methodology and the manner in which they deploy their arguments. She argues that "the deniers" represent a clear and present danger that the lessons to be learned by future generations from the terrible events of the 1930s and 40s will be obfuscated.
2.2 Irving regards himself as being the victim of an orchestrated campaign of boycotting, hounding and persecution by organisations in the UK and elsewhere. He considers Denying the Holocaust to be one of the principal instruments deployed in the campaign to destroy him.
2.3 He has selected for complaint a number of passages from Denying the Holocaust. (I was told that the passages complained of represent in total no more than five pages from a book which runs to more than two hundred pages). This is a course which he is entitled to take, providing of course that the removal of the passages from the context in which they appear in the book does not affect their interpretation. The Defendants are accordingly entitled to invite attention to the context in which the passages complained of appear in support of a submission that the context alters the meaning of the allegedly libellous passages. In the present case I do not understand the Defendants to be maintaining that the context materially affects the   interpretation of any of the passages which Mr Irving has selected for complaint.
2.4 I shall therefore confine myself to setting out, with pagination, the passages which Irving contends are libellous of him (as well as highly damaging to his reputation as a serious historian):
  • Cover and title page:
    "Denying the Holocaust
    The Growing Assault on Truth and Memory"
  • Page 14:
    The confluence between anti-Israel, anti-Semitic, and Holocaust denial forces was exemplified by a world anti-Zionist conference scheduled for Sweden in November 1992. Though cancelled at the last minute by the Swedish government, scheduled speakers included black Muslim leader Louis Farrakhan, Faurisson, Irving and Leuchter. Also scheduled to participate were representatives of a variety of anti-Semitic and anti-Israel organisations, including the Russian group Pamyat, the Iranian-backed Hezbollah, and the fundamentalist Islamic organisation Hamas1.
  • Page 111:
    Nolte contended that Weizmann's official declaration at the outbreak of hostilities gave Hitler good reason "to be convinced of his enemies' determination to annihilate him much earlier than when the first information about Auschwitz came to the knowledge of the world"2 [...] When Nolte was criticized on this point in light of prewar Nazi persecution of Jews, he said that he was only quoting David Irving, the right-wing writer of historical works. How quoting Irving justified using such a historically invalid point remains unexplained   [...]3 As we shall see in subsequent chapters, Irving [...] has become a holocaust denier.
    These works demonstrate how deniers misstate, misquote, falsify statistics and falsely attribute conclusions to reliable sources. They rely on books that directly contradict their arguments, quoting in a manner that completely distorts the authors' objectives. Deniers count on the fact that the vast majority of readers will not have access to the documentation or make the effort to determine how they have falsified or misconstrued information.
  • Page 161:
    At the second trial Christie and Faurisson were joined by David Irving, who flew to Toronto in January 1988 to assist in the preparation of Zundel's second defense and to testify on his behalf. Scholars have described Irving as a "Hitler partisan wearing blinkers" and have accused him of distorting evidence and manipulating documents to serve his own purposes.4 He is best known for his thesis that Hitler did not know about the Final Solution, an idea that scholars have dismissed.5 The prominent British historian Hugh Trevor-Roper depicted Irving as a man who "seizes on a small and dubious part particle of 'evidence'" using it to dismiss far-more substantial evidence that may not support his thesis. His work has been described as "closer to theology or mythology than to history," and he has been accused of skewing documents and misrepresenting data in order to reach historically untenable conclusions, particularly those that exonerate Hitler.6 An ardent admirer of the Nazi leader, Irving placed a self-portrait of Hitler over his desk, described his visit to Hitler's mountaintop retreat as a spiritual experience,7 and declared that Hitler   repeatedly reached out to help the Jews.8 In 1981 Irving, a self-described "moderate fascist", established his own right-wing political party, founded on his belief that he was meant to be a future leader of Britain.9 He is an ultra-nationalist who believes that Britain has been on a steady path of decline accelerated by its decision to launch a war against Nazi Germany. He has advocated that Rudolf Hess should have received the Nobel Prize for his efforts to try to stop war between Britain and Germany.10 On some level Irving seems to conceive himself as carrying on Hitler's legacy.
    [...] Prior to participating in Zundel's trial, Irving had appeared at IHR conferences [...] but he had never denied the annihilation of the Jews.11 That changed in 1988 as a result of the events in Toronto.
    Both Irving and Faurisson advocated inviting an American prison warden who had performed gas executions to testify in Zundel's defense, arguing that this would be the best tactic for proving that the gas chambers were a fraud and too primitive to operate safely. They solicited help from Bill Armontrout, warden of the Missouri State Penitentiary, who agreed to testify and suggested they also contact Fred A. Leuchter, an "engineer" residing in Boston who specialized in constructing and installing execution apparatus. Irving and Faurisson immediately flew off to meet Leuchter. Irving, who had long hovered on the edge of Holocaust denial, believed that Leuchter's testimony could provide the documentation he needed to prove the Holocaust a myth.12 According to Faurisson, when he first met Leuchter, the   Bostonian accepted the "standard notion of the 'Holocaust'".13 After spending two days with him, Faurisson declared that Leuchter was convinced that it was chemically and physically impossible for the Germans to have conducted gassings.14 Having agreed to serve as an expert witness for the defense, Leuchter then went to Toronto to meet with Zundel and Christie and to examine the materials they had gathered for the trial.
  • Page 179:
    David Irving, who during the Zundel trial declared himself converted by Leuchter's work to Holocaust denial and to the idea that the gas chambers were a myth, described himself as conducting a "one man intifada" against the official history of the Holocaust.15
    In his forward to his publication of the Leuchter Report, Irving wrote that there was no doubt as to Leuchter's "integrity" and "scrupulous methods". He made no mention of Leuchter's lack of technical expertise or of the many holes that had been poked in his findings. Most important, Irving wrote, "Nobody likes to be swindled, still less where considerable sums of money are involved." Irving identified Israel as the swindler, claiming that West Germany had given it more than ninety billion deutsche marks in voluntary reparations, "essentially in atonement for the 'gas chambers of Auschwitz'". According to Irving the problem was that the latter was a myth that would "not die easily".16 He subsequently set off to promulgate Holocaust denial notions in various countries. Fined for doing so in Germany, in his court room appeal against the fine he called on the   court to "fight a battle for the German people and put an end to the blood lie of the Holocaust which has been told against this country for fifty years." He dismissed the memorial to the dead at Auschwitz as a "tourist attraction".17 He traced the origins of the myth to an "ingenious plan" of the British Psychological Warfare Executive, which decided in 1942 to spread the propaganda story that Germans were "using 'gas chambers' to kill millions of Jews and other 'undesirables'.18
    Branding Irving and Leuchter "Hitler's heirs", the British House of Commons denounced the former as a "Nazi propagandist and long time Hitler apologist" and the latter's report as a "fascist publication". One might have assumed that would have marked the end of Irving's reputation in England, but it did not. Condemned in the Times of London in 1989 as "a man for whom Hitler is something of a hero and almost everything of an innocent and for whom Auschwitz is a Jewish deception", Irving may have had his reputation revived in 1992 by the London Sunday Times.19 The paper hired Irving to translate the Goebbels diaries, which had been discovered in a Russian archive and, it was assumed, would shed light on the conduct of the Final Solution. The paper paid Irving a significant sum plus a percentage of the syndication fees.*
    [Footnote] * The Russian archives granted Irving permission to copy two microfiche plates, each of which held about forty-five pages of the diaries. Irving immediately violated his agreement, took many plates, transported them abroad, and had them copied without archival permission. There is serious concern in archival circles that he may have significantly damaged the plates when he did so, rendering them of limited use to subsequent researchers.
    Irving believes Jews are "very foolish not to abandon the gas chamber theory while they still have time." He "foresees [a] new wave of anti-semitism" due to Jews' exploitation of the Holocaust "myth", C.C.   Aronsfeld, "Holocaust revisionists are Busy in Britain," Midstream, Jan. 1993, p.29.
    Journalists and scholars alike were shocked that the Times chose such a discredited figure to do this work. Showered with criticism, the editor of the Sunday Times, Andrew Neil, denounced Irving's view as "reprehensible" but defended engaging Irving because he was only being used as a "transcribing technician". Peter Pulzer, a professor of politics at Oxford and an expert on the Third Reich, observed that it was ludicrous for Neil to refer to Irving as a "mere technician", arguing that when you hired someone to edit a "set of documents others had not seen you took on the whole man".20
    However the matter is ultimately resolved, the Sunday Times had rescued Irving's reputation from the ignominy to which it had been consigned by the House of Commons. In the interest of a journalistic scoop, this British paper was willing to throw its task as a gatekeeper of the truth and of journalistic ethics to the winds. By resuscitating Irving's reputation, it also gave new life to the Leuchter Report.
  • Page 181:
    A similar attitude is evident in the media reviews of David Irving's books: Most rarely address his neofascist or denial connections.21
    Irving is one of the most dangerous spokespersons for Holocaust denial. Familiar with historical evidence, he bends it until it conforms with his ideological leanings and political agenda. A man who is convinced that Britain's great decline was accelerated by its decision to go to war with Germany, he is mist facile at taking accurate information and shaping it to confirm his conclusions. A review of his recent book, Churchill's War, which appeared in New York Review of Books, accurately analyzed his practice of applying a double standard of evidence. He demands "absolute documentary proof" when it comes to proving the Germans guilty, but he relies on highly   circumstantial evidence to condemn the Allies.22 This is an accurate description not only of Irving's tactics, but of those of deniers in general.
  • Page 213:
    As we have seen above, Nolte echoing David Irving, argues that the Nazi "internment" of Jews was justified because of Chaim Weizmann's September 1939 declaration that the Jews of the world would fight Nazism.
  • Page 221:
    Another legal maneuver has been adopted by a growing number of countries. They have barred entry rights to known deniers. David Irving, for example, has been barred from Germany, Austria, Italy and Canada. Australia is apparently also considering barring him.23
2.5 These are the passages which (to quote Irving's opening) "vandalised [his] legitimacy as an historian".

The issue of identification

2.6 It is incumbent on Irving as Claimant to establish that these passages would have been understood by readers of Denying the Holocaust to refer to him. In their statement of case, the Defendants take issue with Irving's assertion that those passages refer to him.
2.7 To the extent that he is named in the passages cited above, readers would of course have taken them to be referring to Irving. With the exception of the title page, all the passages complained of do make mention of Irving by name. I am satisfied that readers would have understood all those passages to refer to Irving. The Defendants have not sought in the course of the trial to suggest otherwise.
2.8 I add the rider that the assertions, to be found principally at pages 111, 181 and 221, that Irving is a Holocaust "denier" and a spokesperson for Holocaust denial will in my judgment cause readers to understand references   to "deniers" elsewhere in the passages complained of as importing a reference to Irving individually. Accordingly I am satisfied that readers of Denying the Holocaust would have understood Irving to be one of those who (to quote from page 111) "misstate, misquote, falsify statistics and falsely attribute conclusions to reliable sources".

The issue of interpretation or meaning

Irving's case on meaning

2.9Of greater substance is the question of what interpretation readers would have placed upon the references to Irving in Lipstadt's book. The burden rests on Irving to establish that, as a matter of probability, the passages of which he complains are defamatory of him, that is, that the ordinary reasonable reader of Denying the Holocaust would think the worse of him as a result of reading those passages. Irving is further required, as a matter of practice, to spell out what he contends are the specific defamatory meanings borne by those passages.
2.10 The contention of Irving is that the passages in question would in their natural and ordinary meaning (that is, without imputing any special extraneous knowledge to the reader) have been understood to bear the following defamatory meanings:
  • (i)
    that the (Claimant) is a dangerous spokesman for Holocaust denial forces who deliberately and knowingly consorts and consorted with anti-Israel, anti-Semitic, and Holocaust denial forces and who contracted to attend a world anti-Zionist conference in Sweden in November 1992 thereby agreeing to appear in public in support of and alongside violent and extremist speakers including representatives of the violent and extremist anti-Semitic Russian group Pamyat and of the Iranian backed Hezbollah and of the fundamentalist Islamic organisation Hamas and including the black Muslim minister Louis Farrakhan, born Louis Eugene Walcott, who is known as a Jew-baiting black agitator, as a leader of the U.S. Nation of Islam, as an admirer of Hitler and who is in the pay of Colonel Muammar Gaddafi;
  • (ii)
    that the (Claimant) is an historian who has inexplicably misled academic historians like Ernst Nolte into quoting historically invalid points contained in his writings and who applauds the internment of Jews in Nazi concentration camps;
  • (iii)
    that the (Claimant) routinely perversely and by way of his profession but essentially in order to serve his own reprehensible purposes ideological meanings and/or political agenda
    • distorts accurate historical evidence and information
    • misstates
    • misconstrues
    • misquotes
    • falsifies statistics
    • falsely attributes conclusions to reliable sources
    • manipulates documents
    • wrongfully quotes from books that directly contradict his arguments in such a manner as completely to distort the their authors' objectives and while counting on the ignorance or indolence of the majority of readers not to realise this;
  • (iv)
    that the (Claimant) is an Adolf Hitler partisan who wears blinkers and skews documents and misrepresents data in order to reach historically untenable conclusions specifically those that exonerate Hitler;
  • (v)
    that the (Claimant) is an ardent admirer of the Nazi leader Adolf Hitler and conceives himself as carrying on Hitler's criminal legacy and had placed a self-portrait of Hitler over his desk and has described a visit to Hitler's mountain-top retreat as a spiritual experience and had described himself as a moderate fascist;
  • (vi)
    that before Zundel's trial began in 1988 in Toronto the (Claimant), compromising his integrity as an historian and in an attempt to pervert the course of justice, and one Faurisson wrongfully and/or fraudulently conspired together to invite an American prison warden and thereafter one Fred A. Leuchter an engineer who is depicted by the Defendants as a charlatan to testify as a tactic for proving that the gas chambers were a myth.
  • (vii)
    That the (Claimant) after attending Zundel's trial in 1988 in Toronto having previously hovered on the brink now denies the murder by the Nazis of the Jews;
  • (viii)
    That the (Claimant) described the memorial to the dead at Auschwitz as a "tourist attraction".
  • (ix)
    That the (Claimant) was branded by the British House of Commons as "Hitler's heir" and denounced as a "Nazi propagandist and long time Hitler apologist" and accused by them of publishing a "fascist publication" and that this marked the end of the (Claimant's) reputation in England.
  • (x)
    That some other person had discovered in a Russian archive in 1992 the Goebbels diaries and that it was assumed that these would shed light on the conduct of the Final Solution but that the (Claimant) was hired and paid a significant sum by the London Sunday Times to transcribe and translate them although he was a discredited and ignominious figure and although by hiring the (Claimant) the newspaper threw its task as a gatekeeper of the truth and of journalistic ethics to the winds and thereby increased the danger that the (Claimant) would in order to serve his own reprehensible purposes misstate, construe misquote falsify distort and/or manipulate these sets of documents which others had not seen in order to propagate his reprehensible views and that the (Claimant) was unfit to perform such a function for this newspaper.
  • (xi) That the (Claimant) violated an agreement with the Russian archives and took and copied many plates without permission causing significant damage them and rendering them of limited use to subsequent researchers.
2.11 Irving contends in the alternative that the passages bear by innuendo, that is, by virtue of extrinsic facts which would have been known to readers or to some of them, the meaning that he is a person unfit to be allowed access to archival collections and that he is a person who should properly be banned from foreign countries. The extrinsic facts on which he relies in support of the innuendo meanings are in essence as follows:
  • (i)
    that a Holocaust denier is someone who wilfully, perversely and in disregard of the evidence denies the mass murder by whatever means of the Jewish people;
  • (ii)
    that Hezbollah is an international terrorist organisation whose guerillas kill Israeli civilians and soldiers;
  • (iii)
    that Hamas is an Islamic fundamentalist terrorist organisation
In support of his argument that readers of the book would have known these extrinsic facts Irving produced a collection of press cuttings, which, I am satisfied, establish the extrinsic facts on which he relies.

The Defendants' case on meaning

2.12 The Defendants are also obliged to set out the defamatory meanings which they contend are borne by the passages in question (and which they seek to justify). These meanings are set out in paragraph 6 of their Defences in the following terms:
  • (i)
    that the (Claimant) has on numerous occasions (in the manner hereinafter particularised) denied the Holocaust, the deliberate planned extermination of Europe's Jewish population by the Nazis, and denied that gas chambers were used by the Nazis as a means of carrying out that extermination;
  • (ii)
    that the (Claimant) holds extremist views, and has allied himself with others who do so, including individuals such as Dr. Robert Faurisson, and Ernst Zundel;
  • (iii)
    that the (Claimant), driven by his obsession with Hitler, distorts, manipulates and falsifies history in order to put Hitler in a more favourable light, thereby demonstrating a lack of the detachment, rationality and judgement necessary for an historian;
  • (iv)
    that there are grounds to suspect that the (Claimant) has removed certain microfiches of Goebbels' diaries contained in the Moscow archives, from the said archives without permission; and that the (Claimant) lied and/or exaggerated the position with regard to the unpublished diaries of Goebbels on microfiche contained in the Moscow archives, and used by him in the Goebbels book;
  • (v)
    that in all the premises, the (Claimant) is discredited as an historian and user of source material, and that there was an increased risk that   the (Claimant) would for his own purposes, distort, and manipulate the contents of the said microfiches in pursuance of his said obsession.

Approach to the issue of meaning

2.13For the purpose of deciding this issue, it matters not what Lipstadt intended to convey to her readers; nor does it matter in what sense Irving understood them. I am not bound to accept the contentions of either party. My task is to arrive, without over-elaborate analysis, at the meaning or meanings which the notional typical reader of the publication in question, reading the book in ordinary circumstances, would have understood the words complained of, in their context, to bear. Such a reader is to be presumed to be fair-minded and not prone to jumping to conclusions but to be capable of a certain amount of loose thinking24 .

Conclusion on meaning

2.14I shall set out my findings as to the defamatory meanings borne by the passages complained of. In doing so, I will not allocate separate meanings to the individual passages selected for complaint because it is to be assumed that the reader's understanding as to what is being conveyed about Irving will be derived from his or her reading of the book as a whole including the passages to which objection is taken. I do not believe that it is necessary or desirable to set out the meanings in the order in which it may be said that they emerge in the book.
2.15Adopting the approach set out earlier, my conclusion is that the passages complained of in their context and read collectively bear the following meanings all of which are defamatory of him:
  • i.
    that Irving is an apologist for and partisan of Hitler, who has resorted to the distortion of evidence; the manipulation and skewing of documents; the misrepresentation of data and the application of double standards to the evidence, in order to serve his own purpose of exonerating Hitler and portraying him as sympathetic towards the Jews;
  • ii.
    that Irving is one of the most dangerous spokespersons for Holocaust denial, who has on numerous occasions denied that the Nazis embarked upon the deliberate planned extermination of Jews and has   alleged that it is a Jewish deception that gas chambers were used by the Nazis at Auschwitz as a means of carrying out such extermination;
  • iii.
    that Irving, in denying that the Holocaust happened, has misstated evidence; misquoted sources; falsified statistics; misconstrued information and bent historical evidence so that it conforms to his neo-fascist political agenda and ideological beliefs;
  • iv.
    that Irving has allied himself with representatives of a variety of extremist and anti-semitic groups and individuals and on one occasion agreed to participate in a conference at which representatives of terrorist organisations were due to speak;
  • v.
    that Irving, in breach of an agreement which he had made and without permission, removed and transported abroad certain microfiches of Goebbels's diaries, thereby exposing them to a real risk of damage.
  • vi.
    that Irving is discredited as an historian.
2.16I add two comments in relation to the meanings which I have found. The first is that I do not accept the contention of Irving that the passage at p14 of the book means that he supports violent groups. But I do consider that passage to be defamatory of him in suggesting that he agreed to take part in a meeting at which representatives of such groups would be present. My second comment is that I do not accept that the reference to Irving at p213 of the book, when read in the context of the other references to him, bears the meaning that he applauds the internment of Jews in Nazi concentration camps.

III. THE NATURE OF IRVING'S CLAIM FOR DAMAGES

Relevant considerations

3.1Where the publication of defamatory words is proved and no substantive defence has been established, English law presumes that damage will have been done to the reputation of the person defamed. The amount of the damages recoverable by a particular claimant, if successful on liability, will depend on a variety of factors including the nature and gravity of the libel; the extent of its dissemination; the standing of the claimant; the injury to his or her feelings; the extent of any additional injury inflicted by the conduct of the defendants; and so on. It is possible to claim pecuniary loss but no such   claim arises here. Damages maybe reduced, perhaps even to vanishing point, to the extent that the defendants succeed in partially justifying the defamatory imputations complained of.25

Irving's case on damages

3.2Irving contends that Lipstadt in Denying the Holocaust makes an attack not only upon his competence as an historian but also upon his motivation. As I have already found, the book accuses Irving, amongst other things, of deliberate perversion of the historical evidence. I readily accept that, to any serious historian, his or her integrity is vital. That is no doubt why, in his evidence, Irving said that for him his reputation as a truth-seeking historian is more important than anything else. The other meanings which I have found the passages complained of to bear are also serious, although in my judgment less so. Irving is entitled to regard the passages in the book of which he complains as containing grave imputations against him in both his professional and personal capacity.
3.3The Defendants admit that Denying the Holocaust has been published within the jurisdiction. Although not specifically so pleaded, I bear in mind the evidence of Irving that the book has been put on the Internet and widely circulated to libraries.
3.4In relation to his own standing as an historian, Irving described his career as a writer and commentator on the Third Reich. He is the author of a great number of serious historical works, most of which have been favourably received. Irving referred to the favourable reviews accorded to his works by eminent historians such as Lord Dacre. He was understandably reluctant to sing his own praises. But he claimed credit for the amount of original research he has done and for the number of documents which he has discovered in the archives. Irving supplemented his own evidence with that of Professor Donald Watt (whom I describe in section 4 below), who testified that, in those areas where his political convictions are not involved, he is most impressed by Irving's scholarship. Whilst he might not place Irving in the top class of military historians, his book Hitler's War was a work which deserved to be taken seriously. Watt also noted that Irving had stimulated debate and research into the Holocaust. Sir John Keegan (also described below) gave evidence that he adhered to a view which he had   expressed some years ago that Hitler's War was one of two outstanding books on World War II.
3.5On the other hand account must also be taken of the view expressed by one of the Defendants' experts, Professor Evans, that Irving has had "a generally low reputation amongst professional historians since the end of the 1980s and at all times amongst those who have direct experience of researching in the areas with which he concerns himself". Both Professor Watt and Sir John Keegan regarded as unacceptable the views expressed by Irving about the Holocaust and Hitler's knowledge of it.
3.6It was abundantly plain from his conduct of the trial that the factor to which Irving attaches the greatest importance in connection with the issue of the damages is the conduct of the Defendants and the impact which that conduct has had on himself, both personally and professionally, as well as on his family. Irving made plain in his opening, on repeated occasions during the trial and in his written and closing submissions that he regards himself as the target of a well-funded and unscrupulous conspiracy on the part of "our traditional enemies" aimed at preventing the dissemination of his books, ensuring that he is banned from as many countries as possible and stifling his right to freedom of expression. Although Irving at one stage disputed the point, it was reasonably clear that the "traditional enemies" were the members of the Jewish community. His claim is that he is the victim of an international Jewish conspiracy determined to silence him. Irving's argument was supported, in general terms, by Professor Macdonald (whom I shall describe later) but the assistance which I derived from his evidence was limited.
3.7The Defendants are critical of the latitude which I allowed Irving in developing this theme. They contend, correctly, that in the ordinary run of litigation, the rules of evidence would have prevented him advancing any such case. However, for a number of reasons, I thought it right not to take too strict a line. Irving has represented himself throughout (demonstrating, if I may so, very considerable ability and showing commendable restraint). This has not been a trial where it has been possible or appropriate to observe strict rules of evidence. Furthermore Irving has been greatly hampered in presenting this aspect of his case by the unexpected decision of the Defendants, in full knowledge of the allegations which Irving was making about the conduct of Lipstadt, not to call her to give evidence and to be cross-examined by Irving. It goes without saying that the Defendants were   perfectly entitled to adopt this tactic but it did place Irving, acting in person, at a disadvantage.
3.8I explained to Irving that, in order to be able to obtain increased damages on this account, it would be necessary for him to prove on the balance of probability that both the Defendants were implicated in the alleged conspiracy26 . Irving did not hesitate to accuse Lipstadt of having been a prime mover. He claimed that her book was part of a sinister international campaign to discredit him. He alleged that she was acting in league with the Anti Defamation League, the Board of Deputies of Jews and other organisations intent on targeting him. He called Professor Kevin Macdonald, a professor of psychology, to testify as to the machinations of the "traditional enemies of free speech" (ie the Jews). Irving alleged that the passages to which he takes objection in Denying the Holocaust were inserted by Lipstadt at a late stage for the purpose of discrediting him. He complained that she made no attempt whatever to verify the allegations by contacting him or otherwise. He testified that it became apparent to him some three years after Denying the Holocaust was published that a concerted attempt was being made to persuade bookshops to cease stocking his work. According to Irving, Lipstadt was instrumental in procuring the decision of his American publishers not to go ahead with the publication of his most recent work, the biography of Goebbels, to which he had devoted no less than nine years work. He claimed, by implication at least, that she was also complicit in bringing pressure to bear on Irving's UK publishers to repudiate their contract to publish his Goebbels biography (at considerable cost to Irving). He claims that Lipstadt has been deeply involved in the campaign of intimidation against him and that she has actively sought to destroy him as an historian.
3.9In assessing these claims by Irving, whose suspicions and indignation are obviously genuine, I must act on evidence and not assertion. On the evidence of the contents of the book itself, I accept that it does indeed represent a deliberate attack on Irving, mounted in order to discredit him as an historian and so to undermine any credence which might otherwise be given to his denials of the Holocaust. That is a factor which is to be taken into account, if the issue of damages arises. Beyond that finding, however, I do not consider that Irving's claim to have been the victim of a conspiracy in   which both Defendants were implicated is established by the evidence placed before me.
3.10The question of damages will arise if, and only if, the substantive defence relied on by the Defendants fails. I therefore turn to that defence.

IV. THE DEFENCE OF JUSTIFICATION: AN OVERVIEW

The parties' statements of case

4.1 Irving having established, as I have found, that Denying the Holocaust contains passages which are defamatory of him, it is necessary for the Defendants, if they are to avoid liability, to establish a defence. The burden of doing so rests, under the English system of law, upon the Defendants.
4.2The substantive defence relied on by both Defendants is justification, that is, that in their natural and ordinary meaning the passages of which Mr Irving complains are substantially true. I have already recited, in section II above, the so-called Lucas-Box 27 meanings or propositions the truth of which the Defendants seek to establish in order to make good their defences of justification.
4.3As practice requires the Defendants also set out in their formal statement of case, served in February 1997, the detailed particulars on which they rely in support of their defence of justification. In November 1999 the Defendants served a revised document entitled Defendants' Summary of Case. This document comprehensively rearranges, supplements and in some cases abandons the particulars previously served. Irving has, in my view sensibly, raised no objection to this recasting of the Defendants' case of justification.
4.4It is to be noted that in the particulars of their case of justification the Defendants do not confine themselves to the specific assertions made by Lipstadt in her book. To give but one example: no mention is made in Denying the Holocaust of the bombing of Dresden by the Allies in 1945. Yet section 5 of the Defendants' Summary of Case contains detailed particulars on that topic criticising Irving's treatment of the subject in his book Apocalypse 1945: the Destruction of Dresden. No objection has been taken or, in my judgment, could be taken to this course since the Defendants are   entitled28 to rely on Irving's account of the bombing of Dresden in support of their contention that he falsifies data and misrepresents evidence. The same applies to other matters raised by the Defendants in their Summary of Case which are not mentioned in Denying the Holocaust.
4.5For his part Irving has, in compliance with the rules, set out in summary form in his Replies to the Defences of the Defendants his answer to the allegations and criticisms advanced by the Defendants in justification of what was published. In October 1999 the Defendants sought from Irving answers to a series of detailed requests for further information about his case. Unfortunately most of those requests went unanswered. In the result much of Irving's case in rebuttal of the defence of justification emerged in the course of his evidence at trial and in the course of his cross-examination of the witnesses called by the Defendants. The Defendants, in my view rightly, felt themselves unable to object.
4.6The Replies also include an allegation of malice against both Defendants, apparently introduced in the mistaken belief that they were relying also upon the defence of fair comment on a matter of public interest. Malice may nonetheless be relevant to the issue of damages, if that arises.

What has to be proved in order for the defence of justification to succeed

4.7As I have already mentioned, the burden of proving the defence of justification rests upon the publishers. Defamatory words are presumed under English law to be untrue. It is not incumbent on defendants to prove the truth of every detail of the defamatory words published: what has to be proved is the substantial truth of the defamatory imputations published about the claimant. As it is sometimes expressed, what must be proved is the truth of the sting of the defamatory charges made.29
4.8Section 5 of the Defamation Act, 1952 provides:
Justification. In an action for libel ... in respect of words containing two or more distinct charges against the [claimant], a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially   injure the [claimant's] reputation having regard to the truth of the remaining charges.
It may accordingly be necessary, in a case like the present where a number of defamatory imputations are the subject of complaint, to consider whether such imputations (if any) as the Defendants have failed to prove to be true materially injure the reputation of the claimant in the light of those imputations against him which have been proved to be true.
4.9The contention for the Defendants is that they have proved the substantial truth of what was published, so that the defence of justification succeeds without the need for resort to section 5. Irving, however, points out that there are imputations which the Defendants made in the book which they have not sought to prove to be true. The principal such imputation is that Irving agreed to participate in a conference at which representatives of violent and extremist groups such as Hezbollah were due to speak. Irving contends that this defamatory imputation is so serious that the Defendants' failure to prove it or even to attempt to prove it is fatal to their plea of justification. The Defendants on the other hand argue that by virtue of section 5 of the 1952 Act their defence of justification should succeed notwithstanding their failure to prove the truth of this imputation because, relative to the other serious imputations which they maintain they have proved to be true, it has no significant deleterious effect on the reputation of Irving.
4.10The standard of proof in civil cases is normally that parties must prove their claims or defences, as the case may be, on the balance of probabilities. In the present case Irving argued, however, that, since the imputations against him were so grave, a higher standard of proof should be applied to the case of the justification advanced by the Defendants. There is a line of authority which establishes that, whilst the standard of proof remains the civil standard, the more serious the allegation the less likely it is that the event occurred and hence the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.30 I will adopt that approach when deciding if the truth of the defamatory imputations made against Irving has been established.
 

Pattern of the judgment on the issue of justification

4.11It is convenient, in order that the pattern of the succeeding sections of this judgment is clear, that at this stage I explain how I propose to deal with the matters raised by the defence by way of justification. For the most part they relate to the period of the Third Reich. In geographical terms the events with which it is necessary to deal are centred on Berlin but they extend to most of the countries conquered by the Nazis. The Defendants rely in addition on the publications, utterances and conduct of Irving over the last thirty years. The number of documents involved is huge. The volume of evidence, mostly expert evidence, is massive. In these circumstances it has proved necessary, for purely practical reasons, to divide up the allegations made by the Defendants into a series of separate headings.
4.12In the next eight sections of this judgment I shall attempt to summarise in some detail the arguments deployed by the parties in relation to the allegations made under those headings. I shall not attempt to rehearse each and every point taken in the reports submitted by the Defendants' experts. Some of the criticisms made of Irving's historiography appear rather pedantic. In any case both sides have agreed that I should confine myself to the issues which have been ventilated by one side or the other in cross-examination. Whilst I will deal with the Defendants' case on justification under the separate headings which I have mentioned, it is important to note that it is an essential feature of the Defendants' case that the allegations on which they rely overlap and (as the Defendants put it) converge, thus providing the foundation of their defence of justification.
4.13Having summarised the parties' rival contentions, I shall then in a separate section of the judgement set out my conclusions on the central issue whether or not the defence of justification succeeds.

Evidence adduced in relation to the issue of justification

4.14Before setting out the arguments and evidence, I will identify the witnesses whose evidence was tendered on each side in relation to the defence of justification.
4.15I start with the evidence for the Defendants. As I have already said, Professor Lipstadt did not give evidence (although a witness statement from her had been served).
 
4.16The only witness of fact for the Defendants was Ms Rebecca Guttman who is employed by the American Jewish Committee as an executive assistant. Her statement, admitted under the Civil Evidence Act, related to an event arranged by an allegedly right-wing organisation in the US with which Irving is said to have connections.
4.17The main corpus of evidence for the Defendants was provided by academic historians whose evidence was by consent admitted as expert evidence. Written and oral evidence was submitted by the following:
  • (i)Professor Richard Evans, who is Professor of Modern History at the University of Cambridge and has written many historical works about Germany. He gave evidence principally about Irving's historiography, his exculpation of Hitler and hiis denial of the Holocaust.
  • (ii)Professor Robert Jan van Pelt, who is a Professor of Architecture in the School of Architecture, University of Waterloo in Canada. Professor van Pelt is an acknowledged authority on Auschwitz, about which he has written extensively, and this was the subject of his evidence.
  • (iii)Professor Christopher Browning, who is a Professor of History at Pacific Lutheran University, Tacoma, Washington. He gave evidence on the evidence about the implementation of the Final Solution, covering the shooting of Jews and others in the East and the gassing of Jews in death camps (apart from Auschwitz).
  • (iv)Dr Peter Longerich, who is Reader in the Department of German at the Royal Holloway College, University of London and a specialist in the Nazi era. He gave evidence of Hitler's role in the persecution of the Jews under the Nazi regime and of the systematic character of the Nazi policy for the extermination of the Jews.
  • (v)Professor Hajo Funke, who is Professor of Political Science at the Free University of Berlin. He gave evidence of Irving's alleged association with right-wing and neo-Nazi groups and individuals in Germany.
  The reports submitted by these experts ran to a total of more than two thousand pages
4.18Not unnaturally (since it is his views and his conduct as an historian which are being attacked by the Defendants) evidence in rebuttal of the case of the Defendants on justification came predominantly from Irving himself. The course which was taken with his evidence was as follows: he submitted a brief witness statement, which did not address the majority of the particulars relied on by the Defendants in support of their plea of justification. He provided some elaboration of his response to that plea in the course of his opening and in the course of answers to my questions. But it was mainly in the course of his answers in cross-examination and his cross-examination of the Defendants' witnesses that the detail of his case emerged.
4.19In support of his denial of the allegation that he broke an agreement in relation to the microfiches in the Moscow archive containing the diaries of Goebbels, Irving called Peter Millar, a freelance journalist, who at the time of the discovery of those diaries in 1992 was acting for The Sunday Times.
4.20Irving summoned to give evidence on his behalf two historians who were unwilling to testify voluntarily. Their evidence was directed primarily to the question of Irving's standing as an historian (in which connection I have already mentioned them) rather than to the plea of justification. The first was Professor Donald Watt, who is an Emeritus Professor at the London School of Economics and was described by Irving as "the doyen of diplomatic historians". Professor Watt was invited by Irving to give evidence about the evaluation of wartime documentation and about Irving's reputation and ability as an historian. The other witness summoned by Irving to give evidence on his behalf was Sir John Keegan, the Defence Editor for Telegraph Newspapers whose knighthood as for services to military history. He too dealt with Irving's standing as an historian. Another witness who gave evidence for Irving, in his case voluntarily, was Professor Kevin Macdonald, who is a Professor of Psychology at California State University-Long Beach. He gave evidence on what he termed "Jewish-gentile interactions" from the perspective of evolutionary biology. There was no cross-examination by the Defendants' counsel of any of these witnesses.
4.21In the course of my summary of the evidence and arguments on the issue of justification, I shall need to make frequent reference to the distinguished academic experts whom, I have identified above. I hope that   they will understand if, in referring to them, I dispense with their academic titles (as I have done with in the case of Professor Lipstadt). No disrespect is intended: it simply makes for easier reading.

V. JUSTIFICATION: THE DEFENDANTS' HISTORIOGRAPHICAL CRITICISMS OF IRVING'S PORTRAYAL OF HITLER IN PARTICULAR IN REGARD TO HIS ATTITUDE TOWARDS THE JEWISH QUESTION

Introduction

5.1A central tenet of Irving's historical writing about the Nazi era is that Hitler was not the vehement and ruthless persecutor of the Jews that he is usually portrayed to have been. Irving has on occasion gone so far as to say that Hitler was "one of the best friends the Jews ever had in the Third Reich". Even if that can be disregarded as hyperbole, Irving would not, I think, dispute that he has on many occasions put forward the contentious view that, at least from the date when he seized power in 1933, Hitler lost interest in his former anti-semitism and that his interventions thereafter in relation to the Jewish question were consistently designed to protect them from the murderous inclinations of other Nazis.

The general case for the Defendants

5.2At p161 of Denying the Holocaust Lipstadt attributes to scholars the description of Irving as a "Hitler partisan wearing blinkers". That phrase, importing the suggestion that Irving deliberately ignores what is revealed by the historical record, encapsulates one of the main defamatory meanings of which Irving complains and which the Defendants seek to justify.
5.3The way in which the Defendants summarise their plea of justification on this part of the case is as follows:
"that the [Claimant], driven by his obsession with Hitler, distorts, manipulates and falsifies history in order to put Hitler in a more favourable light, thereby demonstrating a lack of the detachment, rationality and judgment necessary for an historian".
In their Summary of Case the Defendants highlight claims made by Irving as to Hitler's friendship for and leniency towards Jews, which claims they   assert ignore a large and powerful body of contradictory evidence. The Defendants contend that Irving
"misstates, misquotes, falsifies statistics, falsely attributes conclusions to reliable sources, relies on books and sources that directly contradict his arguments, quoting in a manner that completely distorts the author's objectives, manipulates documents to serve his own purposes, skews documents and misrepresents data in order to reach historically untenable conclusions, bends historical evidence until it conforms to his ideological leanings and political agenda, takes accurate information and shapes it to confirm his conclusion and constantly suppresses or deliberately overlooks sources with which he is familiar because they contradict the line of argument which he wishes to advance".
5.4The Defendants advance a similar case against Irving in relation to his account of the Nazi persecution of the Jews, culminating in the genocide which they assert took place in the gas chambers, and his claims as to the extent of Hitler's involvement in that persecution. I shall deal with that part of the defendants' plea of justification in sections VI to VIII below. The present section is confined to certain specific instances where the Defendants attack Irving's historiography.
5.5The principal protagonist amongst the Defendants' witnesses of the view that Irving persistently and deliberately falsifies history is Evans. In seeking to make good this full-blooded assault on Irving's historiographical approach, Evans included in his lengthy written report multiple examples of the way in which in his opinion Irving portrays Hitler in a manner which is utterly at odds with the available evidence. He cited numerous occasions when, so he alleged, Irving distorted the historical record by one means or another; suppressed evidence; made uncritical use of unreliable sources and arrived at perverse irrational conclusions about events and documents. Evans also drew attention to occasions when Irving has written in inappropriately flattering terms about him. One example is Irving's description of the Fuhrer in Hitler's War as "a friend of the arts, benefactor of the impoverished, defender of the innocent, persecutor of the delinquent". Evans considers that the consistent bias in favour of Hitler which is manifested in Irving's works may stem in part from Irving's identification with Hitler and from his professed intention to write Hitler's War from Hitler's perspective. Irving has himself written that he sees himself as having acted as Hitler's   "ambassador to the afterlife" when he was engaged upon writing his biography of Hitler. On the evidence of what Irving has written and what he has said in his talks and speeches, Evans concludes that Irving remains an ardent admirer of Hitler despite the overwhelming evidence which condemns him.
5.6Evans does not stand alone in making these harsh criticisms of Irving's historical method. In the narrower fields covered by their evidence van Pelt, Browning and Longerich level similar criticisms at him.
5.7The Defendants based their attack on Irving's historiography upon a number of selected episodes. They contend that a detailed analysis of the evidence which was available to Irving supports their case that in his account of those episodes Irving has persistently and deliberately falsified, manipulated and suppressed documents so as to presents a picture which is skewed and misleading. The Defendants focus their attention on a "chain of documents" which Irving has relied, initially on BBC television in June 1977 and on several later occasions, in support of his view that Hitler opposed the persecution of the Jews and sought to protect them from the excesses advocated by other Nazis. I shall consider the parties' arguments in relation to each of the incidents to which the chain of documents relates.
5.8Evans's detailed examination of those documents reveals, so he alleged, consistent falsification of the historical record on the part of Irving. Evans expressed the opinion that what he described as Irving's "egregious errors" were calculated and deliberate. He accepted that anyone can make mistakes but pointed out (as did Browning) that, where all the so-called mistakes are exculpatory of Hitler, the natural inference is that the falsification of the record is intentional. Evans did not resile in his oral evidence from the view expressed in his written report that Irving does not deserve to be called an historian.

Irving's general response

5.9As I have already observed, Irving regards the imputation that he has deliberately falsified the historical record as one of the most serious which can be levelled against an historian. He testified that he had never knowingly or wilfully misrepresented a document or misquoted or suppressed any document which would run counter to his case. He repudiated each and   every one of the Defendants' allegations of misquoting, misconstruing, mistranslating, distorting or manipulating the evidence.
5.10Irving denied any obsession with Hitler, as he denied any falsification of history so as to portray Hitler in a more favourable light. Irving argued that he has every right to praise Hitler where praise is merited. Other historians, such as AJP Taylor, have taken a similar line. Irving also resents the claim made by Lipstadt that he has placed above his desk a self-portrait of Hitler. In fact it is nothing more than a postcard-sized sketch which is not on display, although he occasionally shows it to visitors.
5.11Irving drew attention to the fact that in Hitler's War, as well as in his other published works, he frequently includes material to the discredit of Hitler and other senior Nazis and makes criticism of them. He pointed out that he has expressly drawn his readers' attention to crimes committed by Hitler. In his closing submission he included a list of derogatory references which has made about Hitler. He refuted the notion that these critical references were inserted for tactical purposes, that is, to enable him to point to them in the event of commentators accusing him of being a Hitler partisan. He has made no attempt to conceal from his readers the rabid anti-semitism displayed by Hitler in the early days. In his use of material obtained in his interviews with Hitler's former adjutants or their widows, he has included information provided by them which reflects adversely on Hitler.
5.12As Evans acknowledged, Irving has uncovered much new material about the Third Reich. He has researched documents not previously visited by historians, for example the Himmler papers in Washington and the Goebbels diaries in Moscow. He has tracked down and interviewed individuals (such as Hitler's adjutants or their widows) who participated in or observed some of the events which took place during Hitler's regime. Irving pointed out that, when he uncovers new documents or sources, he habitually makes them publicly available by placing them on his website or by some other means. Irving argues that no duplicitous historian would behave in this way, for he would be providing the evidence of his own duplicity to other historians. Irving advances a similar general argument in rebuttal of the claim that he has deliberately misrepresented or skewed or mistranslated documents. Irving said that he invariably indicates in a footnote where the document is to be found and often quotes the document in the original German. Irving contended that a historian intent on   misleading his readers would not so forthcoming with the evidence of his own disreputable conduct.
5.13Irving rejected the attack upon his historiography mounted by Evans: the criticisms are sweeping but the instances cited in support of them are, he claimed, relatively insignificant. Evans takes no account, Irving complained, of the quality of the historical work displayed in his many published works many of which have been favourably reviewed by fellow historians. Irving was critical of frequency with which Evans resorted to "the consensus amongst historians" by way of support for his attack on Irving. He suggested that many of the criticisms advanced by Evans were derived by him from the work of Professor Broszat, who had personal reasons for writing corrosively about him. Irving stressed that he should be judged by the use which he made of the evidence which was available to him at the time of writing and not by reference to evidence which has come to light more recently.
5.14Irving was, understandably, indignant that Evans included in his report a reference to his having been required by the British Museum to read Hitler's War in the section of the library reserved for pornographic material. By way of rejoinder he stated that the librarian of the Widener Library in New York apparently thinks well enough of him to stock forty-seven of his books.
5.15Irving's general response to this part of the Defendants' case of justification is that, when the pertinent documentary evidence is subjected to "rigid historical criteria" (i.e. when due account is taken of the authenticity and the reliability of the evidence, the reason for its existence and the vantage point of the source or author), a relatively slim dossier of evidence emerges which does indeed show Hitler intervening in every instance to mitigate or lessen the wrongdoing against the Jews. Few, if any, documents point in the opposite direction.

The specific criticisms made by the Defendants of Irving's historiography

5.16In dealing with the Defendants' examples of Irving's alleged distortions of the historical record, I shall adopt the approach taken by the Defendants in their Summary of Case and deal with them one by one and, so far as practicable, in a chronological order. In each case I shall start with a brief account of the relevant historical background. Then I shall by setting out in summary the criticisms made by the Defendants of the use made by Irving of   the evidence available to him in relation to the particular episode and thereafter I will summarise Irving's response to those criticisms.

(i) Hitler's trial in 1924

Introduction

5.17In 1924 Hitler was tried and, following his conviction, imprisoned for his role in the Nazi uprising in Munich in November 1923.
5.18At p18 of the 1991 edition of Hitler's War Irving makes a passing reference to Hitler's attempted putsch, on which occasion, according to Irving, Hitler "disciplined a Nazi squad for having looted a Jewish delicatessen".
5.19A more detailed account of Hitler's role in the putsch is given at p59 of Goering, where Irving writes:
"Meanwhile Hitler acted to maintain order. Learning that one Nazi squad had ransacked a kosher grocery store during the night, he sent for the ex-Army lieutenant who led the raid. 'We took off our Nazi insignia first!' expostulated the officer - to no avail, as Hitler dismissed him from the party on the spot. 'I shall see that no other nationalist unit allows you to join either!' Goring goggled at this exchange, as did a police sergeant who testified to it at the Hitler trial a few weeks later".

Case for the Defendants

5.20Evans noted that, whereas in Hitler's War it is claimed by Irving that the whole squad which was involved in the looting was disciplined by Hitler, in Goering it is just the ex-army lieutenant. The reader who seeks to resolve the inconsistency is not assisted by any footnote identifying either the police sergeant who is said by Irving to have witnessed the dismissal or the occasion when he gave his evidence (as would be conventional practice for a reputable historian). Irving says at p518 that his account is knitted together from eye-witness evidence at the trial.
5.21Evans managed to track down the identity of the police officer, who was called Hofmann. The Defendants criticise Irving for his failure to inform the reader that Hofmann was a loyal member of the Nazi party who participated in the putsch and who was on that account likely, when   testifying on his behalf at his criminal trial, to give a favourable account of the conduct of his Fuhrer in his testimony and to depict him as a law-abiding citizen.
5.22According to Evans, examination of the transcript of Hofmann's testimony reveals several inaccuracies in Irving's account. There is no support for the claim that Hitler summoned or "sent for" the former lieutenant or that either the police sergeant officer or Goering "goggled" when Hitler admonished him for raiding the Jewish shop. The admonition took place before the putsch and so cannot have formed any part of an attempt by Hitler to maintain order during it.
5.23Irving's account is also criticised for misrepresenting the nature of Hitler's concern about the raid on the Jewish shop. The record of the evidence given at the trial demonstrates that Hitler's concern was not to punish the officer for victimising a Jewish shopkeeper but rather that the incident might convey a bad impression of his new party.
5.24Evans maintained that, far from acting to protect Jewish property during the putsch, there is reliable evidence that Hitler (as he himself admitted at his trial) ordered a raid on a Jewish printing house by armed Storm Division troops, who under threat of violence stole 14.5 billion marks. This robbery is presented by Irving at p59 of Goering as a "requisition" of "funds".
5.25The Defendants maintain that in the respects which I have summarised, in his account of Hitler's reaction to the raid on the Jewish delicatessen and the evidence given at his trial, Irving persistently twists and embroiders the facts so as to exculpate Hitler and portray him as having acted sympathetically towards the Jews. Evans emphasised that it is essential for any historian to pay close attention to the background of any source he intends to quote so as to ensure that he is a reliable witness. He concluded that Irving deliberately suppressed the information as to Hofmann's background, preferring instead to present him to the reader as an objective and trustworthy source, when to Irving's knowledge he was nothing of the kind.
 

Irving's response

5.26In the course of his own evidence and his cross-examination of Evans Irving made a number of claims about his treatment of Hofmann's evidence. He repudiated the suggestion that he had deliberately provided a footnote for Hofmann's evidence which would make it difficult for anyone so minded to track it down. By way of explanation, he explained that his publisher had called for cuts to be made in the text, so he had abbreviated the footnotes with the result that they are not as helpful as they might otherwise have been.
5.27Irving initially excused his version of events by saying that what he wrote was based on the microfiches of Hofmann's testimony rather than the verbatim transcript of the evidence given at the trial. But Evans pointed out that the contents of both were the same. Irving next claimed that he had no way of knowing that Hofmann was a longstanding member of the Nazi party and so likely to present Hitler in a favourable light. Evans responded that this would have been apparent on the face of Hofmann's testimony, which Irving read on microfiches and which recounted his close relationship with Hitler and his involvement in the putsch. Moreover the Judge is recorded on the transcript as having congratulated Hofmann for speaking out on behalf of his Fuhrer. Irving responded that he had not had the transcript of Hofmann's evidence when he wrote Goering or, if he had, he had not read that section of the testimony which related to Hofmann's membership of the Nazi party. When it was the pointed out to Irving that, in the course of his own cross-examination, he had said that he had read the whole transcript of Hofmann's evidence (which was only five pages long), Irving explained that, whilst it was true that he had read Hofmann's evidence, he had not "paid attention" to what he had said about his background. He added that readers of Hitler's War and Goering would be able to work out for themselves that Hofmann was not an objective witness without that fact being spelled out.
5.28Irving accepted that there is no evidence that Goering "goggled" when Hitler disciplined the former lieutenant but regards that as permissible "author's licence". Irving defended his description of the robbery of the bank as "requisitioning" the bank's funds by saying that the robbery was an obvious prank: he was seeking to write with a "light touch".
 

(ii) Crime statistics for Berlin in 1932

Introduction

5.29During the Weimar Republic statistics were maintained for the numbers of crimes committed year on year. The crimes were broken down into types of offences.
5.30In the context of describing in his book Goebbels how Goebbels turned anti-semitic when he realised the dominant position occupied by the Jews in Berlin in the 1930s, Irving wrote that Goebbels was unfortunately "not always wrong" to highlight every malfeasance of the criminal demi-monde and identify it as Jewish. He added at pp46-7:
"In 1930 no fewer than 31,000 cases of fraud, mainly insurance swindles, would be committed by Jews".
Irving cited in the supporting footnote various references including Interpol figures which are said to be quoted in the Deutsche Nachrichten Buro (DNB), 20 July 1935 and Kurt Daluege "Judenfrage als Grundsatz" in Angriff, 3 August 1935. Two other sources are also given, namely Kiaulehn and Wieglin.

Case for the Defendants

5.31The Defendants assert that the claim about offences of fraud committed by Jews, espoused by Irving in Goebbels, is factually incorrect and that the references cited by him in the footnote do not bear out his claim.
5.32Indeed, say the Defendants, Interpol did not exist in 1932. The DNB, according to Evans, was a news agency which acted as the mouthpiece of the Nazi regime. In any case the DNB article cited by Irving did not contain any Interpol statistics but quoted remarks made by Daluege at a press conference which was nothing more than a propaganda exercise designed to justify the brutal persecution of the Jews.
5.33As for Daluege, he was an enthusiastic member of the Nazi party who later emerged as a mass murderer on the Eastern front. His article in Angriff, relied on by Irving, was an attempt to justify the remarks made at the press conference in July 1932. The transcript of those remarks does not bear out the figure which appears in Irving's text. Nor, claimed Evans, do the other two references given by Irving in the footnote.
 
5.34The Defendants argue that, if (as a reputable historian would and should do) Irving had checked the official statistics, it would have been obvious that no more than 74 Jews were convicted of insurance frauds. Irving has greatly exaggerated Daleuge's already suspect claim as to the number of such offences committed by Jews. No evidence is cited by Irving, or has been subsequently produced by him, for the claim that Jews committed 31,000 offences of fraud that year or anywhere near that many.

Response of Irving

5.35The "conditional response", as Irving put it, to this criticism is that due to an error on his part the footnote cites the wrong sources. He was, however, unable to identify the correct sources because, since he was banned from entering Germany in 1993, he no longer has access to the material documents.
5.36Irving was unwilling to accept that the figure which he quoted was wrong. He claims that it was not unreasonable to rely on Daluege, who was admittedly "a dodgy source" but was at the time the head of the German police system making it necessary to rely on him. Irving said that everyone would know that Daleuge was an active Nazi, so there was no reason to include in the text or in the footnote a cautionary note warning readers about placing reliance on Daluege as an objective and trustworthy source. Irving added that the two other sources cited by him do confirm the figure he quoted but, as already explained, Irving cannot gain access to them.

(iii) The events of Kristallnacht in November 1938

Introduction

5.37The next example of alleged historical distortion by Irving relied on by the Defendants is his account of the events in Munich and elsewhere on the night of 9/10 November 1938 known as Kristallnacht (the night of broken glass). This is the second link in the chain which Irving regards as proving that Hitler defended the Jews.
5.389 November 1938, being the anniversary of the failed putsch of 1923, was marked by various parades and a celebratory dinner at Munich Old Town Hall attended by Hitler. After Hitler's departure, Goebbels made a speech in the course of which he informed his audience of anti-Jewish demonstrations which had been taking place in Hesse and Magdeburg-   Anhalt and which had resulted in the destruction of Jewish businesses and synagogues. These demonstrations had apparently been prompted by the murder in Paris of a German diplomat named von Rath by a young Pole (described by Irving as "a crazed Jew").
5.39Goebbels said in his speech at the Old Town Hall:
"On his briefing the Fuhrer had decided that such demonstrations were neither to be prepared nor organised by the party, but insofar as they are spontaneous in origin, they should likewise not be quelled".
Those present understood Goebbels to mean that the party should organise anti-Jewish actions without being seen to do so. Accordingly during the night of 9/10 November, 76 synagogues were destroyed and a further 191 set on fire, 7500 Jewish shops and businesses were destroyed; widespread looting occurred and 20,000 Jews were arrested and sent to concentration camps where they were severely mistreated. Such incidents were not confined to Munich: it was a nationwide pogrom.

The Defendants' case

5.40The principal account of Kristallnacht by Irving is to be found at pp273-7 of his biography Goebbels but other references are to be found at pp196, 281 and 612-4. There are also accounts of the events of Kristallnacht in Hitler's War and in other articles published by Irving. All these accounts were subjected to detailed and severe criticism by Evans and by Longerich.
5.41The first and main point on which the Defendants' experts take issue with Irving's account is his claim that the nationwide pogrom was conceived and initiated by Goebbels and that Hitler did not approve or even know about the pogrom until it was well under way and, when informed, was livid and tried to stop it. In order to make this claim, the Defendants allege that Irving has resorted to systematic distortion and suppression of data.
5.42According to Goebbels's diary
"Big demonstrations against the Jews in Kassell and Dessau, synagogues set on fire and businesses demolished ...I go to the party reception in the Old Town Hall. Colossal activity. I brief the Fuhrer. He orders: let the demonstrations go on. Withdraw the police. The Jews must for once feel the people's fury. That is right".
  This passage is rendered as follows by Mr Irving at pp273-4 of Goebbels:
"..[Goebbels and Hitler].. learned that the police were intervening against anti-Jewish demonstrators in Munich. Hitler remarked that the police should not crack down too harshly under the circumstances. 'Colossal activity', the Goebbels diary entry reports, then claims: 'I brief the Fuhrer on the affair. He decides: allow the demonstrations to continue. Hold back the police. The Jews must be given a taste of the public anger for a change'.
5.43Evans claims that the cumulative effect of the mistranslations and omissions in Irving's account give the false impression that Hitler merely ordered the police not to intervene against some unspecified anti-Jewish demonstrators in Munich, when in truth he had given positive orders that the demonstrations should continue not just in Munich but also elsewhere. These orders had been given by Hitler after he had been briefed by Goebbels about the burning of synagogues and demolition of businesses in Kassell and Magdeburg-Anhalt. Evans alleged that Irving has mistranslated zuruckziehen as meaning 'hold back' when it actually means 'withdraw'. What Hitler had actually wanted was that the police should be removed from the scenes of violence altogether. The reason, according to Goebbels's diary, was that the Jews might feel the people's fury (not, as Irving translates the German, be 'given a taste of the public anger').
5.44Evans criticises as being contrary to the evidence Irving's suggestion that it was not until after Hitler had left the Old Town Hall that Goebbels learned of widespread anti-Jewish violence and decided off his own bat to unleash the pogrom. This suggestion distances Hitler from responsibility for the violence which occurred later that night and the following day. The Defendants contend that, in making that suggestion, Irving ignores or suppresses the evidence that it was Hitler who authorised the continuation of the widespread violence of which he had been informed by Goebbels before he (Hitler) left the Old Town Hall.
5.45Longerich expressed the view that the course of the pogrom clearly demonstrates Hitler's personal initiative. Goebbels's diary entry for 9 November, already quoted, refers to big demonstrations against the Jews in Kassell and Magdeburg, which had in any case been reported in the Nazi press that morning. So the suggestion that Hitler did not know about them   when he left the Old Town Hall is unsustainable, as is the further suggestion that Goebbels first learned of the scale of the violence them after Hitler had departed.
5.46At pp 275 and 281 of Goebbels, Irving refers to "Goebbels's sole personal guilt" and to his "folly" respectively. In the following passages Irving claims that Hitler, Himmler and Heydrich were all opposed to the pogrom. Another person presented by Irving as an opponent of the burning of synagogues and violence towards the Jews is the SA leader Victor Lutze. Irving also claims that SA Gruppenfuhrer Fust (wrongly called Lust by Irving) explicitly ordered that no synagogues were to be burned. These claims buttress the contention advanced by Irving that Goebbels was solely responsible for the orgy of violence which marked Kristallnacht.
5.47Evans dismissed these claims as being the product of a manipulation of the evidence by Irving. According to Evans, the evidence tends to suggest that the SA group leaders generally played an active role in starting the violence. Evans argues that Juttner, who was the source for Irving's claim that Lutze opposed the pogrom, is wholly unreliable: he was himself a senior SA leader and his role in the events of that evening make it very improbable that he disapproved the violence. As for Irving's claim that Fust took action to prevent the burning of synagogues, Evans concluded that it was simply invented by Irving.
5.48On this aspect of Kristallnacht, Evans was also critical of the omission of any reference in Irving's account of the night's events to the report of the internal enquiry subsequently held by the Nazi Party in February 1939. According to that report, Goebbels in his speech at the Old Town Hall told party members that Hitler, having been briefed by him about the burning of Jewish shops and synagogues, had decided that in so far as they occurred spontaneously they were not to be stopped. Evans pointed out that it would have been foolhardy in the extreme for Goebbels to have lied to old party comrades in the context of the party enquiry about what Hitler had said and decided about the anti-Jewish demonstrations.
5.49The Defendants further contend that Irving's account of events during the night of 9/10 November seriously distorts the role played by Hitler. In the first place the Defendants criticise Irving for his omission to refer to a telegram sent from Berlin at 23.55 on 9 November by Muller, head of the Security Police, to officers warning them of the forthcoming outbreak of   anti-Jewish demonstrations and ordering that they were not to be interrupted. The Defendants contend that this is an important document which reflects precisely what Hitler had ordered earlier that evening. They argue that it is obvious that Muller (who was answerable to Heydrich, who in turn was answerable through Himmler to Hitler) was acting on instructions from the highest level. Yet no mention of Muller's telegram is made in the text of Irving's writing about Kristallnacht.
5.50Evans canvassed the question whether Hitler was consulted before the telegram from Muller was dispatched. He pointed to evidence, consisting in the testimony at Nuremberg of one SS officer (Schallermeier) and the witness statement of another (Wolff) and confirmed by a contemporaneous report to the Foreign Office, which suggests that it is very likely that Hitler and Himmler met before Muller sent the telegram. Himmler and Hitler were seen together in conversation earlier that evening before the dinner at the Old Town Hall. If Hitler and Himmler did meet, argued Evans, it is inconceivable that Muller's telegram would have been sent out in those terms without Hitler's approval. According to Evans, it is therefore to be inferred that, far from ordering that action against Jews be halted, Hitler in truth ordered it to continue. The evidence relied on by Evans in support of this inference is ignored or dismissed by Irving, unwarrantably so in the opinion of Evans.
5.51Criticism of Irving was made by the Defendants for his omission to make reference to an instruction issued by the leader of SA group Nordsee, Bohmcker, which alluded to the wish of Hitler that the police should not interfere with the anti-Jewish demonstrations. The reason why Irving omits this message, suggested the Defendants, is that it runs counter to his thesis that Hitler was throughout concerned to protect the Jews.
5.52At pp276-7 of Goebbels Irving writes that, when Hitler learned of the pogrom at about 1am on 10m November, he was "livid with rage" and snapped to Goebbels by telephone to find out what was going on. Hitler is said to have made a "terrible scene with Goebbels" who did not anticipate Hitler's "fury". Hitler's alleged reaction supports the thesis advanced by Irving that Hitler did not instigate the violence of that night.
5.53In this portrayal of Hitler's reaction, Evans accused Mr Irving of further invention, manipulation and suppression. Irving's account of the events of the night of 9/10 November, including in particular his account of Hitler's   reaction when apprised of the violence, depends heavily on the interviews which he conducted long after the war with Hitler's adjutants, that is, officers closely attached to Hitler. Evans claimed that Irving adopted a deplorably uncritical attitude towards the adjutants' version of events. Not only were they trying to call to mind events which took place long ago, they were also highly likely to slant their accounts in favour of Hitler. Another reason for scepticism about their accounts is their wish to exculpate themselves. Moreover, argued Evans, it is essential for an objective historian to weigh the testimony of such witnesses against the totality of the available evidence in order to test its reliability. The contemporaneous documents created during the night of violence are likely to prove a far more reliable guide than the self-serving and untested accounts of Hitler's staff. Irving, he contended, failed lamentably to weigh that evidence in the balance.
5.54The principal source for the claim that Hitler was observed by Eberstein, Chief of Police in Munich, to be "livid with rage" is said by Irving to be Hitler's chief former personal adjutant, Wilhelm Bruckner. Irving obtained Bruckner's papers from his son and donated them to the Institute of History in Munich to which Irving no longer has access. He was therefore unable to produce documentary verification of Bruckner's account. He was able to produce a Deckblatt (cover sheet) which includes a summary of the contents of the relevant file in Munich but that does not indicate the presence in the file of any Kristallnacht material. Evans's assistant searched the relevant file in Munich but was unable to find any document there which related to Kristallnacht. So the evidential position is unsatisfactory. Another reason put forward by Evans for doubting Irving's account is that contemporaneous documents establish that later that night at 2.10am Eberstein telephoned to the Gestapo in various towns repeating the order that police were not to interfere with actions against Jews. Eberstein would have done no such thing, argued Evans, if indeed he had seen Hitler livid with rage about the actions against the Jews. Irving makes no mention of Eberstein's instruction in his book about Hitler.
5.55Be that as it may, Bruckner was a close associate of Hitler, so that, according to Evans his evidence needs to be treated with caution. In any case, according to a second-hand summary made by a German historian of a statement made by Bruckner, he was able to say no more than that Eberstein "probably" went to see Hitler. In his evidence at Nuremberg, Eberstein did not mention having had this meeting with Hitler. So, according to Evans, the evidence for Hitler's reaction having been one of anger is very thin and   difficult to reconcile with other events that evening. The violence continued virtually unabated throughout the night; this is unlikely to have occurred if indeed Hitler had at any stage wanted to bring it to a halt.
5.56Another witness relied on by Irving for Hitler's reaction to the mayhem which broke out is Julius Schaub, a long-standing Nazi party member and senior SS officer (who after the war described Hitler as a peace-loving man). In his papers Schaub claimed that Goebbels "ordained Kristallnacht Sunday (sic)" and that Hitler was furious when he learned of the outrages. Evans argued that Schaub too was close to Hitler and his evidence on that account should be treated with scepticism. Schaub's evidence, like that of the other witnesses relied on by Irving, is impossible to reconcile with Hitler's attitude towards the violence in the early evening of 9 November or with the orders (to which I shall shortly come) which went out in the early hours of 10 November permitting the excesses to continue.
5.57The third witness relied on by Irving for Hitler's reaction on hearing of the anti-Jewish outrages is von Below, who was a Colonel in the Luftwaffe. Irving interviewed him some thirty years after the event. He was present in the hotel where Hitler was based at the time. He claimed to recall that Hitler's reaction, when hearing of the violence from von Eberstein, was to ask what was going on. He said that Hitler became angry and demanded that order in Munich be restored at once. Evans noted that in his memoirs (as opposed to his interview by Irving) von Below made clear that he was not present when, on learning of the pogrom, Hitler spoke to Goebbels by phone and so could not have overheard any part of their conversation. Evans argued that Irving's note of his interview with von Below makes clear that, contrary to Irving's claim in Goebbels, Hitler asked Eberstein (not Goebbels) to find out what was going on. There is no evidence, said Evans, for Irving's claim that Hitler "snapped" orders at Goebbels. Evans regarded von Below as a variable witness whose account of Kristallnacht is wholly unreliable.
5.58Another source for Irving's contention that Hitler condemned the pogrom is Hederich, a longstanding senior Nazi. Evans criticised Irving for his reliance on him. Hederich based his assessment of Hitler's attitude towards the violence upon his impression of a speech which he claimed Hitler made at the Old Town Hall before Goebbels spoke. But the evidence is clear, according to Evans, that Hitler made no speech at the Old Town Hall that evening.
 
5.59At p276 of Goebbels Irving gives the following account of the message sent shortly after 1am by Heydrich (Head of German Security Police):
"What of Himmler and Hitler? Both were totally unaware of what Goebbels had done until the synagogue next to Munich's Four Seasons Hotel set on fire around 1am. Heydrich, Himmler's national chief of police, was relaxing down in the hotel bar; he hurried up to Himmler's room, then telexed instructions to all police authorities to restore law and order, protect Jews and Jewish property and halt any ongoing incidents".
According to Evans this is a blatant manipulation of the historical record. Heydrich's telex sent to police chiefs and security service officers at 1.20 am on 10 November, which emanated from Himmler, instructed them that the demonstrations against the Jews expected during that night were " not to be obstructed" subject to the following restrictions:
"a) only such measures may be taken as do not involve any endangering of German life or property (eg synagogue fires only if there is no danger of the fire spreading to surrounding buildings),
b) the shops and dwellings of Jews may only be destroyed not looted. The police are instructed to supervise the implementation of this order and to arrest looters.
c) care is to be taken that non-Jewish shops in shopping streets are unconditionally secured against damage,
d) foreign nationals may not be assaulted, even if they are Jews".
Evans maintained that the meaning is clear: apart from those specific, narrow circumstances, the police were ordered not to intervene. The Defendants contend that Heydrich's order confirms and repeats the instruction of Himmler (which Irving accepts would have originated from Hitler) that the demonstrations were not to be interrupted. The restrictions only applied in identified and limited circumstances (eg where there was risk of damage to non-Jewish property). So it is alleged that Heydrich's telex ordered the exact opposite of what Irving claimed in Goebbels.
 
5.60Evans advanced a similar criticism of Irving's treatment at p277 of Goebbels of a telex sent at 2.56am from the office of Rudolf Hess. Irving writes that
"Hess's staff began cabling, telephoning and radioing instructions to Gauleiters and police authorities around the nation to halt the madness".
In fact, according to Evans, the order read:
"On express orders from the very highest level, acts of arson against Jewish shops and the like are under no circumstances and under no conditions whatsoever to take place".
It is common ground that the message is referring to an order from Hitler ("the very highest level"). That order, according to Evans, had the limited effect of preventing fire-raising in Jewish shops and the like ('Geschaften oder dergleichen') and was not aimed at preventing attacks on Jews and their property generally. The concern for shops arose, said Evans, because they were in most cases owned by Germans. The order did not purport to proscribe attacks on Jewish homes or on synagogues. It referred only to arson and not to other forms of violence. Its tenor is consistent with the telegrams sent out by Muller and by Heydrich earlier that evening. There is, asserted Evans, no warrant for the claim which was made by Irving in an article published in 1983 that this order shows that Hitler ordered "the outrage" to stop forthwith. If he had so ordered, why, asked Evans, did the violence continue. Far from ordering the outrage to cease, Hitler was by necessary inference authorising the continuation of most of the lawlessness.
5.61Evans alleged that Irving is guilty of further manipulation of evidence in relation to the account given by Hitler's adjutant, Wiedemann, which Irving uses to support his thesis that Hitler ordered Goebbels to stop the attacks when he heard about them. In Goebbels Irving writes:
"Fritz Wiedemann, another of Hitler's adjutants, saw Goebbels spending much of that night, 9th/10th, telephoning ... to halt the most violent excesses".
Evans claimed that there are good reasons to doubt the reliability of Wiedemann and that in any event Irving has distorted or at least exaggerated   his evidence. What in fact Wiedemann wrote was that "it is reliably reported that" Goebbels had been seen making these telephone calls. There was therefore no justification for Irving's claim that Wiedemann "saw" Goebbels making these calls. It was mere hearsay. In any event, said Evans, the picture conveyed by Irving is wholly inconsistent with other evidence of what Goebbels was doing that night.
5.62Irving is further criticised by the Defendants for ignoring evidence, which according to Evans is inherently more reliable, namely the evidence contained in the report of the Supreme Party Tribunal report of 13 February 1939. That report includes a finding that when, at about 2am on 10 November, Goebbels was informed of the first death of the Jew in the progrom, he reacted by saying it would be the first of many. This reaction accords, say the Defendants, with the diary entry made by Goebbels that morning rejoicing in the violence ("Bravo!").
5.63Lastly in relation to the events of Kristallnacht, Irving at p281 of Goebbels quotes from the diary of a diplomat named van Hassell recording the reaction of Rudolf Hess to the violent actions directed at the Jews. It reads:
"[Hess] had left [the Bruckmanns] in no doubt that he completely disapproved the action against the Jews; he had also reported his views in an energetic manner to the Fuhrer and begged him to drop the matter, but unfortunately completely in vain. Hess pointed to Goebbels as the actual 'originator' ".
In Goebbels Irving refers only to Hess's view that Goebbels was the originator of Kristallnacht. Whilst no objection was taken by him to the use of that part of the quotation, Evans did criticise Irving' for his failure to refer to what Evans regarded as the far more significant aspect of Hess's account, namely that Hitler had ignored his plea to halt the progrom. That omission amounts, according to Evans, to a blatant misrepresentation of the diary entry. Evans also criticised Irving for his failure to mention the immediately following passage from the same diary which recounts a conversation Hassell had with the Prussian Finance Minister, Popitz, who is recorded as having said that Goering considered Hitler responsible for the events of Kristallnacht.
 
5.64Evans concluded that Irving's claim that during the night of 9/10 November Hitler did everything he could to prevent violence towards the Jews and their property is based upon a tissue of inventions, manipulations, suppressions and omissions.

Irving's response

5.65Irving denied that in his account of the events of Kristallnacht he had misrepresented the attitude Hitler adopted towards the violence directed at the Jews and their property. He maintained that the violence was initiated and promoted by Goebbels, who was acting without the authority of Hitler. He argued that, once Hitler became aware of the scale of the anti-Jewish rioting, he did his best to limit the violence.
5.66Irving justified his translation of the account given by Goebbels in his diary of the remarks made by Hitler when he was told about the demonstrations as an attempt on his part to convey to his readers in the vernacular the flavour of Goebbels's style of writing in his diary. He denied that his version contains any mistranslation of the entry. As to the significance of what Hitler ordered at that early stage of the evening's events, Irving at one stage in his evidence suggested that what Goebbels had reported to Hitler was the death of van Rath rather than that demonstrations against Jews had broken out. But he later conceded that Hitler would have been told about the demonstrations against Jews. He emphasised that, at the point when Hitler gave his order for the police to be pulled back, the scale of the anti-Jewish demonstrations was modest. So it could not be said, claimed Irving, that Hitler was sanctioning excessive violence. It was not until later that night, towards midnight, that the demonstrations got out of hand and turned into a full-scale pogrom against the Jews.
5.67Irving accepted that his account of Hitler's reaction on hearing in the early hours of the morning of 10 November about the outrages which were taking place is heavily reliant on the testimony of Hitler's adjutants provided many years after the event. Irving said that he was scrupulously careful not to put words into the mouths of those whom he interviewed. Irving testified that he spoke to von Below on no less than ten occasions. He claimed that what von Below then said is more worthy of belief than what he wrote in his memoirs. Irving pointed out there is no evidence which directly contradicts the accounts of the adjutants on which he has placed reliance. Their accounts converge and so may be said to corroborate one another. Irving did not accept that, in accepting the evidence of the adjutants about Kristallnacht   but rejecting for example the evidence of survivors about events at Auschwitz, he has been guilty of applying double standards.
5.68As to Muller's telegram, Irving agreed that he was aware of it but made no mention of it in Goebbels. He testified that he did not regard it as adding much. Moreover Irving did not accept that the evidence shows that Hitler authorised or even knew of Muller's order. Muller was in Berlin whereas Hitler was in Munich. Nor, said Irving, does Bohmcker's message add anything to what is already known from other sources. He pointed out that he did refer to Bohmcker in a footnote.
5.69Irving denied having misrepresented Heydrich's telex of 1.26am. The reference given in the footnote in Goebbels for this message is ND:3052-PS. In cross-examination the message with reference number ND:3051-PS, which the Defendants claim is Heydrich's 1.20am message, was put to Irving. He said that he was quoting from a different message sent by Heydrich, namely ND:3052-PS, which is the reference given in Goebbels. He disagreed with the suggestion that it was unlikely that Heydrich would have sent another telex at about the same time. His answer to the Defendants' accusation of misrepresentation was therefore that he was summarising the content of a different message sent by Heydrich at about the same time (which he was unfortunately unable to produce). However, when confronted with the text of message ND:3052-PS which the Defendants had obtained overnight, Irving accepted that it cannot have been the source for what he wrote. When reminded that on his own website he had admitted muddling 3051 and 3052, Irving conceded that there had been no other source for what he wrote about Heydrich's telex. In the end, as I understood him, Irving answered the criticism made by the Defendants of his account in Goebbels of Heydrich's telex by saying that, if he misinterpreted it, it was an innocent error or glitch which occurred in the redrafting process. He maintained that the error is in the context of the book as a whole a trivial one. In any event Irving reiterated that at this stage in the evening (1.20am), the full-scale pogrom had still not developed.
5.70As regards Eberstein's telephone message at 2.10am, Irving gave various reasons why he attached no importance to it. He claimed that the original message would have gone out earlier. It is, he argued, a mere repetition of the instruction to the police not to interfere. Irving put to Evans various suggestions about the message: that Eberstein might not have been present when it was sent; that Eberstein might have been with Hitler when it   went out; that it was an "igniting" document. In any event, said Irving, the message was overtaken by events. For these reasons Irving said that he saw no need to refer to it in Hitler's War. Evans accepted none of these suggestions. Whether or not it is likely that Eberstein would have sent that message after seeing Hitler's reaction to the news of the night's events, Irving stated that two eye-witnesses, namely adjutants von Below and Futkammer, had confirmed Hitler's angry reaction to the news. In regard to Hederich, Irving justified his reliance upon his evidence. He contended that there was no reason for doubting what Hederich was quoted as having said. Despite having written in Goebbels that what Goebbels said "conflicted with the tenor of Hitler's speech", Irving denied that Hederich had meant that Hitler made a speech at the Old Town Hall: he was referring to what he understood Hitler to have been saying about the violence. Irving did not accept the criticisms advanced by Evans of his reliance on these witnesses (summarised above).
5.71Irving disagreed totally with the interpretation placed by the Defendants upon Rudolf Hess's message sent at 2.56am. He pointed out that it was he who had discovered the message and first brought it to the notice of historians. Whilst he accepted that there might have been reasons for singling out Jewish businesses for protection, such as the danger of damage being done to adjacent non-Jewish property or the likelihood that the Jewish property was insured with non-Jewish insurance companies, he was adamant that the order was intended to confer blanket protection on all Jewish property. He read the words und dergleichen as qualifying acts of arson, so that his interpretation of the message is that it covers acts of arson and all other forms of violence. He did not accept that the order of words in the message indicates that und dergleichen qualifies shops, so extending the order to shops and the like. It was Irving's case that the order sent at 2.56am emanated from Hitler and it was a direction that all actions against the Jews must stop forthwith. Accordingly his description of the message as conveying an order from Hitler "to halt the madness" was appropriate and justified. Furthermore, in his response to the Defendants' closing submission, Irving also drew attention to a telegram sent out at 3.45am by Gestapo Section II signed "p.p. Bartz" which required the immediate execution of Heydrich's order that all kinds of arson were to be hindered.
5.72Given the passage of time since he had tried to decipher the handwriting of Wiedemann, Irving felt unable to respond the criticism that he had misrepresented his account. He did agree that he may have made a   mistake. Irving agreed that at the time when he was writing Goebbels he was aware of the diary entry of Hassell recording the comments made about Kristallnacht by Rudolf Hess. Irving argued that, when Hess said he had reported his views in an energetic manner to Hitler and begged him to drop "the matter", Hess was obviously referring to the action subsequently taken by the Nazi party to fine the Jews. Hess was not begging Hitler to drop the anti-Jewish actions when they were in progress that night. Evans dismissed that as a blatant misconstruction of the diary entry which was plainly referring to the violence. Irving commented that he did not in any event consider that the entry adds much to what is already known.

(iv) The aftermath of Kristallnacht

Introduction

5.73Once the killing, rape and wholesale destruction of property which marked Kristallnacht came to an end, questions arose how these actions against the Jews had come about and what should be done with the perpetrators. Discussions took place between Hitler and Goebbels. In due course the Oberste Parteigericht, a party court which formed no part of the criminal justice system, conducted an investigation and compiled a report about the affair.

The Defendants' case

5.74In relation to Irving's portrayal of the events immediately following Kristallnacht, Evans again made criticisms of the manner in which he manipulated, misquoted and discounted reliable evidence. Evans contended that, contrary to the impression conveyed by passages in Goebbels at pp277-8, the diary entries made by Goebbels, as well as statements made by him at the time, provide convincing proof that Hitler wholeheartedly approved the pogrom and himself afterwards proposed economic measures to be taken against Jews.
5.75Page 277 of Goebbels includes the following paraphrase of Goebbels's diary entry:
"As more ugly bulletins rained down on him the next morning, 10 November 1938, Goebbels went to see Hitler to discuss 'what to do next' ... there is surely an involuntary hint of apprehension in the phrase".
  The vice which the Defendants perceive is that Irving's account suggests that Goebbels knew he was to blame for the pogrom and was apprehensive that Hitler would be angry with him. The Defendants contend that Irving had no basis whatever for adding the gloss that Goebbels was apprehensive since there is no such indication to be found in the diary. Far from being apprehensive, Goebbels's diary entry for 11 November shows how delighted he was at the success of the pogrom. Irving claimed that this entry is mendacious.
5.76Goebbels's diary entry continues:
'I report to the Fuhrer in the Osteria. He agrees with everything. His views are totally radical and aggressive. The action itself has taken place without any problems. 17 dead. But no German property damaged. The Fuhrer approves my decree concerning the ending of the actions with small amendments. I announce it via the press and radio. The Fuhrer wants to take very sharp measures against the Jews. They must themselves put their businesses in order again. The insurance will not pay them a thing. Then the Fuhrer wants a gradual expropriation of Jewish businesses'.
The Defendants contend that this passage from Goebbels's diary makes crystal clear that, far from condemning Goebbels for what had occurred during Kristallnacht, Hitler in fact approved what had happened. The Defendants add that this is borne out by the fact that Goebbels that same afternoon told the local party chief that the Fuhrer had sanctioned the measures taken thus far and had declared that he did not disapprove of them.
5.77Yet at page 278 of Goebbels Irving described the meeting at the Osteria in the following terms:
"[Goebbels] made his report [on 'what to do next'] to Hitler in the Osteria ... and was careful to record this ... perhaps slanted ... note in his diary which stands alone, and in direct contradiction to the evidence of Hitler's entire immediate entourage. 'He is in agreement with everything. His views are quite aggressive and radical. The action itself went off without a hitch. 100 dead. But no German property damaged. Each of these five sentences was untrue as will be seen".
  The Defendants cite this as an instance of Irving perverting what Goebbels recorded in his diary and distorting what actually happened in order to exculpate Hitler.
5.78Evans deduced that the probable sequence of events was that during the morning of 10 November Hitler and Goebbels discussed what to do next. Hitler told Goebbels to draft an order calling a halt to the violence because, in effect, the objective had by that stage been achieved. They then met for lunch at the Osteria and Hitler approved the order Goebbels had drafted. The terms of the order were broadcast at some stage during the afternoon and the order was formally promulgated at 4pm. The significance of the timing, according to Evans, is that the violence was in effect permitted to continue for most of 10 November. (In Vienna the violence against the Jews did not begin until 10 o'clock that morning).
5.78At a meeting held on 12 November, attended by amongst others Goering and Goebbels, the decision was taken that the Jews should, irrespective of any insurance cover, bear the cost of the pogrom; that Jewish property should be "aryanised" and that Jews should be forbidden to run shops or businesses. Evans criticised Irving for omitting to mention, in his account of this meeting at p281 of Goebbels, that these decisions reflected the wishes expressed by Hitler on 10 November and, according to Goering, were taken in response to Hitler's express request. Nor does Irving mention that, according again to Goering and to an official of the Four Year Plan named Kehrl, Hitler had expressly endorsed the action taken against the Jews.
5.79At p281 of Goebbels, Irving writes:
"Hess ordered the Gestapo and the party's courts to delve into the origins of the night's violence and turn the culprits over to the public prosecutors".
The Defendants assert that, since the court in question was a party and not a criminal court, there was no warrant for Irving to write that the culprits were to be handed over to the public prosecutors. Further Evans pointed out that the document cited in support of this passage, an order of 19 December 1938, made clear that referrals to the prosecution service were to take place only in cases arising out of "personal and base motives". The Ministry of Justice had already ordained that no action was to be taken in those cases   where Jewish property was set on fire or blown up. None of this is mentioned by Irving. On the Defendants' case, the intent and effect of Hess's order is thus completely misrepresented by Irving, whose wording suggested to his readers that the Nazis determined to take firm disciplinary action against party members who had been guilty of unlawful violence during Kristallnacht and that anyone guilty of any misdemeanour would be handed over to be dealt with in the criminal courts.
5.80In the event, according to the Defendants, the proceedings of the Party Court were a farce. According to its report of 13 February 1939, it investigated only sixteen cases of alleged unlawful activity. In only two of those cases were the suspects handed over to the criminal courts. Those two cases involved sexual offences against Jewish women: the reason for their referral was that the offences involved 'racial defilement'. In the other fourteen cases (which included allegations that twenty-one Jews had been murdered), the punishments were trivial, apparently because the Party Court took the view that the culprits were carrying out Hitler's orders. Hitler was asked to quash the proceedings against those fourteen. The criticism of Irving is that he makes no reference to what the Defendants describe as a scandalous manipulation of the justice system. The disciplinary action instituted by the Nazi party was virtually non-existent.
5.81Irving suggested in Goebbels that following Kristallnacht Hitler distanced himself from Goebbels because he disapproved what he had done. But Evans contended that the record, including Goebbels's diary, suggests otherwise. For instance Goebbels reported in his diary that, when Hitler visited him on 15 November , Hitler "was in a good mood. Sharply against the Jews. Approves my and our policy totally". Evans asserted that there is no justification whatever for supposing that, as Irving implies at p282 of his book, that that was an invention on the part of Goebbels.
5.82Evans also disputed Irving's claim that the memoirs of Ribbentrop are further evidence that of Hitler's disapprobation of Goebbels. According to Evans, the documents cited by Irving do not upon examination support his claim that Goebbels was a pariah in Berlin and even less popular than Ribbentrop and Himmler. Evans noted Irving makes several references to an author named I Weckert, without giving the reader any indication that she is a well-known anti-semitic Nazi sympathiser, who in Evans's opinion is discredited as an historian.
 
5.83The final criticism made by Evans is that at p276 of Goebbels and elsewhere Irving seriously understates the suffering inflicted upon the Jews in the pogrom. The number of synagogues destroyed far exceeded Irving's figure of 191. The extent of the damage to Jewish shops is also downplayed by Irving. The number of Jews killed was many more than the thirty-six claimed by Irving, even if those who died en route to concentration camps are left out of account.

Irving's response

5.84By way of explanation of his reference to Goebbels having felt apprehensive when he went to see Hitler on 10am November 1938, Irving stressed that his paraphrase "what to do next" is an accurate rendition of the German :
"Ich uberlege mit dem Fuhrer unsere nunmehrigen Massnahmen".
According to Irving, those words mean that Goebbels discussed with Hitler the measures which need to be taken "now more than ever". The reason why he wrote that Goebbels was apprehensive was that he had been summoned to see Hitler at a time when Germany was going up in flames. Goebbels had believed that he had acted in accordance with Hitler's wishes but to his consternation he had discovered that he had been doing the exact opposite of what Hitler wished. Irving did, however, agree that Goebbels's diary entry indicates that he was discussing with Hitler whether to let the actions against the Jews continue or to call a halt. He claimed (and Evans agreed) that the probability is that in the course of a telephone conversation on the morning of 10 November Hitler instructed Goebbels to draw up an order calling a halt to the violence.
5.85But Irving did not accept the rest of Evans's reconstruction of the sequence of events on 10 November. In regard to Goebbels's account in his diary of his meeting with Hitler at the Osteria restaurant, Irving argued that the claim that Hitler endorsed what Goebbels had done was false, that is, Goebbels was lying in that diary entry. Goebbels was prone, said Irving, to claiming that Hitler had approved his actions when in truth he had done nothing of the kind. Goebbels was being denounced on all sides so he needed to claim he had the approval of Hitler. Irving did, however, agree that Hitler did express the intention that Jewish businesses should be expropriated. Irving suggested, on the basis of information said to have been uncovered by Ingrid Wechert (to whom I have already referred), that an   instruction to halt the demonstrations and actions was broadcast as early as 10am on 10 November. Evans doubted the timing claimed by Wechert and Irving: the only record of the content of the broadcast gives the time of transmission as the afternoon. It is accepted that the order calling a halt to the violence was issued at 4pm. Evans considered it to be unlikely that there would have been a delay of six hours between the broadcast and the promulgation of the order.
5.86Irving justified the doubt which he cast in Goebbels on the diary entry in which Goebbels recorded Hitler's visit on 15 November and claimed that Hitler had indicated that he approved totally "my and our policy". According to Irving, it was obvious from the handwritten diary entry that "my" was inserted by accident and Goebbels then added "and our" as an afterthought because it would have been, as Irving put it, a bit of a giveaway if he had crossed out "my". Evans refused to accept that interpretation of the entry.
5.87Similarly in relation to the message sent by Goebbels to the Nazi party chief in Munich-Upper Bavaria that "the Fuhrer sanctions the measure taken so far and declares that he does not disapprove of them", Irving argued that it cannot be taken at face value. The reason, according to Irving, is the double negative in the second part of the sentence, which indicates that Goebbels was providing an alibi for himself by claiming that he had Hitler's authority when in fact he did not.
5.88Irving did not accept that in his account in Goebbels he had falsely given the impression that firm action was taken against those involved in the violence on Kristallnacht. He defended his reference in Goebbels to "turning the culprits over to the public prosecutors" by claiming that there were a large number of prosecutions and that many were sent to gaol. He did, however, accept that it was inappropriate to refer to the party court as the public prosecutor. He also agreed that there would have been many who had committed grave crimes against the Jews who were let off. Irving sought to justify this lenient treatment on the basis that their acts of violence had been authorised by the state. Irving made reference to a passage in the report of the Party Court which was in the following terms:
"The individual perpetrators [of the acts of violence etc] had put into action, not merely the supposed will of the leadership, but the to be sure vaguely expressed but correctly recognised view of the leadership".
  Irving took this to be saying by implication that the perpetrators knew they were not acting on the order of Hitler. Evans claimed in reply that that is the exact opposite of what the report says: the perpetrators were acting in accordance with the wishes of the leadership. That is the basis on which those who compiled the report concluded that the perpetrators should not be punished.
5.89Whilst Irving accepted that only two of the sixteen suspects referred to in the report of the Party Court were handed over to the criminal courts, he claimed that many others were prosecuted. Space reasons prevented him from telling his readers how many escaped virtually scot-free. He did not accept that it was the intention of the Nazi party that all but a tiny minority should get off.

(v) Expulsion of Jews from Berlin in 1941

Introduction

5.90In the autumn of 1941 there remained living in Germany, albeit under increasingly restrictive conditions, some 146,000 Jews of which 76,000 or so resided in Berlin. In October 1941, following the invasion of the Soviet Union, which was accompanied by the mass murder of Soviet Jews by Einsatzgruppen, the compulsory deportation of Jews from Berlin to the East and principally to Poland commenced.
5.91At 1.30pm on 30 November 1941 Himmler had a telephone conversation with Heydrich. The relevant part of Himmler's note of that conversation reads:
"Judentransport aus Berlin. (Jew-transport from Berlin.)
Keine liquidierung. (No liquidation.)"
Despite that instruction a trainload of Jews who arrive in Riga that day were massacred on arrival.

The Defendants' case

5.92The Defendants advance numerous criticisms of the manner in which Irving has written about the deportation of the German Jews from Berlin and in particular the role of Hitler in the affair. The Defendants are also critical   of the account given by Irving of the circumstances surrounding the execution of the Berlin Jews on arrival in Riga (with which I shall deal later).
5.93The starting point for the Defendants' criticisms is the claim made by Irving that, unlike Goebbels, Hitler was not at this time driven by anti-semitism. In Goebbels Irving quotes from an article by Goebbels published in Das Reich to show that he was more violently anti-semitic than Hitler. But Evans observed that Irving omits to mention that Goebbels started his article by quoting Hitler's celebrated 1939 prediction of the annihilation of the Jews. In his report Evans quoted numerous utterances by Hitler at this time to show that Hitler was expressing similar views to those of Goebbels about the Jews. A comprehensive list of Hitler's statements about the Jews, covering the period 1919 to 1945 has been collated by the Defendants and is include at tab 5(i) of their written closing submissions. I shall revert to the list hereafter.
5.94Irving claimed in Goebbels that it was Goebbels's article in Das Reich which inspired the killing of thousands of the Berlin Jews in Riga in November 1941. This claim is based on the testimony of Wisliceny (one of Eichmann's top officials who was responsible for the Final Solution in Slovakia and elsewhere). At p379 of Goebbels, Irving wrote that Wisliceny described the Das Reich article as "the watershed". Wisliceny did indeed refer to that article but he also reported that "In this period of time, after the beginning of the war with the USA, I am convinced must fall the decision of Hitler which ordered the biological annihilation of European Jewry". The Defendants contend that, not only was Irving wrong to attribute to Wisliceny the view that the article in Das Reich was in truth the watershed, but that he also deliberately suppressed the crucial passage referring to Hitler's order for the biological annihilation of the Jews.
5.95At p377 of Goebbels Irving claims that Hitler was neither consulted nor informed about the deportation of Jews from Berlin in 1941. Evans contended that this claim is another manipulation of the historical record. Goebbels in his diary on 19 August 1941 states that the Fuhrer gave him his approval for the transports of the Jews out of Berlin. A corroborative entry is to be found in entries in Goebbels's diary for 19 and 24 September 1941. Greiser, who was stationed in the Warethegau and was answerable to Hitler, was similarly told by Himmler that the Fuhrer wanted the Old Reich and the   Protectorate to be cleared of Jews. The evidence of Hitler's involvement is clear, say the Defendants.
5.96Irving based his assertion of Hitler's non-involvement upon his Table Talk of 25 October 1941. (I interpolate that the Table Talk is a record in note form, compiled by adjutants of Bormann named Heim and Picker, of remarks made by Hitler at informal gatherings). But, said Evans, Irving misconstrues and mistranslates the record of what Hitler then said, which properly understood was that he was no longer remaining "inactive" against the Jews and had started to deal with them.
5.97The Defendants contend that the claim made by Irving that Hitler personally intervened in an attempt (unsuccessful as it turned out) to prevent the Berlin Jews being liquidated is wholly unwarranted by the evidence. In the 1977 edition of Hitler's War Irving wrote at p332 that Himmler was "summoned" to the Wolf's Lair (Hitler's Headquarters) and "obliged" to telephone an order to Heydrich that there was to be no liquidation of Jews. The reader is given to understand that Hitler procured an order which applied to all Jews. Moreover in the introduction to Hitler's War Irving describes that note as "incontrovertible evidence" that Hitler issued a general order prohibiting the liquidation of Jews generally. He attaches sufficient importance to the note to reproduce a photograph of it in the book.
5.98The Defendants assert that Irving's interpretation of Himmler's note (cited above in the Introduction to this section) is perverse and a clear falsification of the document. Evans alleged, firstly, that it is clear on the face of the note that it is referring to a single transport of Jews out of Berlin which departed on 27 November: the German word transport is in the singular, the plural would be transporte. Both the language and the context make it plain that what is being referred to is a single transport of Jews. What is more it is clear that the note is talking only of Berliner Jews because it includes the words aus Berlin. Moreover, say the Defendants, there is no evidence for the claim that any order was issued by Hitler or indeed that he was involved at all. True it is that the telephone call was made by Himmler from Hitler's bunker. But it was made at 1.30pm and Himmler's appointment diary suggests that Hitler and Himmler did not meet for lunch until later that afternoon.
5.99From about the mid-1980s Irving accepted that the note does indeed refer to the single transport out of Berlin and not to Jews generally.   Nevertheless the error was not corrected in the 1991 edition of Hitler's War. Irving explained this by saying that the 1991 edition went to press in the mid-80s. It is, however, right to note that in Goebbels Irving no longer claims that the order applied to Jews generally. However, he continued to assert that the order emanated from Hitler. Thus at p379 of Goebbels Irving writes that, even as the Jews were being shot in Riga, "Hitler...was instructing Himmler that these Berlin Jews were not to be liquidated". In May 1998 Irving accepted through his website that his theory that Hitler told Himmler to tell Heydrich to stop the shooting had been wrong. Despite this on 31 August 1998 Irving posted another document in which he asserted that Hitler had demonstrably originated the order not to kill the Jews in Riga. Evans apostrophised this behaviour on the part of Irving as egregious and disreputable. The Defendants cite this as an example of Irving continuing to twist the evidence in order to portray Hitler favourably even after the error of his ways had been pointed out to him.
5.100Nor, according to Evans, is there any basis for Irving's claim in the 1977 edition of Hitler's War that on 1 December 1941 Himmler telephoned Pohl, an SS General, to tell him that Jews were to "stay where they are" (that is, out of harm's way). Irving based this claim on Himmler's phone log, which contained this entry:
Verwaltungsfuhrer der SS (Administrative leaders of the SS)
haben zu bleiben (have to stay)
Irving now accepts that he misread "haben" as "Juden" and that the order was stating that administrative leaders of the SS had to stay where they were. The Defendants do not accept that the mistranscription was due to an innocent misreading of Himmler's manuscript. They point to other manuscript words in the same document which should have alerted Irving (and on the Defendants' case did alert him) to the fact that the word Himmler actually wrote was 'haben'. Irving ignored the fact that there is no full stop after SS and before haben. He also ignored the fact that haben zu bleiben is indented, suggesting that it is linked to the previous line. Irving agreed in cross-examination that to read that entry as "Administrative officers of the SS Jews to remain" would be meaningless because it would be saying nothing in relation to the administrative officers. Evans considered this to be deliberately a perverse misreading by Irving borne of his overwhelming desire to portray Hitler as a friend of the Jews.
 

Irving's response

5.101Irving argued that there is what he describes as another "chain of documents" which impels one to the conclusion that Hitler was intent upon protecting the Berlin Jews.
5.102In regard to his claim in Goebbels that Hitler was neither consulted nor informed about the expulsion of Jews from Berlin, Irving accepted on the basis of the evidence now available that the initiative for the expulsions came from Hitler. He denies having suppressed any relevant material of which he was aware at the time. Irving discounted the Wisliceny report with its reference to an order by Hitler for the biological annihilation of the Jews because it was made in 1946 when Wisliceny was facing the gallows. In any case Irving dismissed the report as speculative and made by a man "at janitorial level". Irving did not accept that in this context "vernichtung" connotes extermination. He denied having applied double standards in his reliance on Wisliceny, adopting those parts which suited his case and discarding the rest.
5.103In support of his argument that Hitler was protective towards the Jews, Irving pointed to an entry in Himmler's telephone log for 17 November 1941, which he said imports that Himmler has had his knuckles rapped by Hitler for wanting to get rid of the Jews in the General Government. He also relied, as a "tiny dent" in the public perception that the Jews were transported in cattle trucks in atrocious conditions, on messages which indicate that the trains taking Jews from Berlin to the East were amply provisioned and that Jews were permitted to take with them the tools of their trade. Irving claimed that this is inconsistent with the existence of a policy of systematic extermination.
5.104In relation to the entry in Himmler's log for 30 November 1941 (quoted in in the introduction to this section) which included the phrase "Judentransport aus Berlin - keine liquidierung", Irving accepted that he has no direct evidence that Himmler was "summoned" to see Hitler or that he was "obliged" to issue the order. But he pointed out that Himmler had spent that morning working at Hitler's headquarters and suggested that the probability is that Himmler would have spoken on the telephone to Hitler before the two of them met for lunch at 2.30pm. Irving argued that the likelihood of such a conversation having taken place before Himmler spoke to Heydrich of the telephone, together with the fact that Himmler was at   Hitler's headquarters when the call was made, suggest that it was Hitler who originated the order that the Jews were not to be liquidated. He agreed that there is no evidence that Himmler and Hitler met before the call was made to Heydrich at 1.30pm on 30 November 1941. However, he suggested that the reasonable inference "with very strong evidence" is that they spoke on the phone before that time. He maintained this position despite the entry on his own website accepting that his original theory that Himmler had discussed the matter with Hitler before phoning Heydrich had been wrong. Evans replied that there is no evidence that Himmler spoke to Hitler that morning. There were several bunkers at Hitler's headquarters and there was no reason for Himmler to communicate either face to face or by telephone with Hitler before they met for lunch.
5.105Another reason advanced by Irving to justify his contention that the instruction Keine Liquidierung emanated from Hitler is that it was Himmler who telephoned Heydrich and not vice versa. This is not apparent from Himmler's note of the call. But Irving pointed to another instruction issued by Himmler to Heydrich made from Hitler's headquarters months afterwards on 24 April 1942 that there was to be no annihilation of gypsies. Irving inferred that that instruction emanated from Hitler and argued that the same inference is to drawn in relation to the instruction on 30 November 1941. Evans's response was that there is no reason whatever to suppose that there was any connection between Hitler and either of these instructions issued by Himmler.
5.106In relation to the entry in Himmler's log for 1 December 1941, Irving said that he misread Himmler's spidery Sutterlin handwriting: he thought he had written Judentransporte in the plural. It was, he said, a "silly misreading". He firmly denied any deliberate manipulation. He denied that he was lying when he claimed to have made an innocent slip. He was, however, constrained to admit that in a letter to Dr Kabermann written in 1974 he had correctly transcribed the word in the singular. On reflection he claimed that his original explanation that he though the note referred to transports in the plural was a slip of the memory. He explained that he believes he understood transport to mean transportation in the generic sense. He pointed out that no definite article comes before the noun (which Evans says is rare in the case of Himmler's notes). He argued that dictionary definitions of the meaning of that word bear him out but he was unable to produce a contemporaneous (ie 1930s) dictionary which gave the meaning "transportation". He rejected the claim made by Evans that this explanation   is equally unconvincing, not least because it omits to take account of the words aus Berlin.
5.107Despite his eventual acceptance that the conversation between Himmler and Heydrich on 30 November related to a single trainload of Jews, Irving continued to suggest in his cross-examination of Evans that the instruction Keine Liquidierung had a wider significance and applied to all European Jews. He relied on a message sent on 1 December 1941 to the local SS commander in Riga, named Jeckeln, summoning him to a meeting with Himmler in Berlin on 4 December. Irving pointed out that this summons had followed rapidly upon a request made from Riga to Berlin by the murderous Jeckeln for ten military pistols for Sonderactionen (special measures). Irving interpreted Himmler's appointments diary for 4 December 1941 as showing that he gave Jeckeln a rap over the knuckles.
5.108Irving relied also on the contents of a telegram sent on the same day to Jeckeln by Himmler, which reads:
"The Jews being outplaced to Ostland are to be dealt with only in accordance with the guidelines laid down by myself or the Reichssicherheitshauptamt on my orders. I would punish arbitrary and disobedient acts".
Irving described this as an incredibly important message because it shows that at headquarters the shooting of the Jews was disapproved. He further asserted that the absence of any reference to Hitler in the message indicates that Hitler had nothing to do with the promulgation of guidelines as to circumstances in which European Jews were to be killed. Irving claims that the consequence of this sequence of events was that the shooting of German Jews stopped for many months. Evans accepted the killing of German Jews was halted for some months after December 1941 but pointed out that the surviving Jews in the ghetto in Riga were murdered on 8 December presumably with the concurrence of Himmler. The massacre of non-German Jews in the Ostland continued unabated.
5.109Irving argued that the inference to be drawn from the communications referred to at paragraphs 5.107-8 indicate that there were in existence at the time guidelines which prohibited the killing of European Jews and that the shooting of the Berlin Jews in Riga was a transgression of those guidelines.
 
5.110In reference to Himmler's telephone log for 1 December 1941 Irving testified that he innocently misread "haben" for "Juden" because the two words appear similar in the Gothic manuscript. He said that Himmler's handwriting at this point is very indistinct. He did not spot that there was no full stop after Verwaltungsfuhrer SS. It was a reasonable mistake to make and certainly not a deliberate misreading. In any event Irving dismissed this entry in the log as totally immaterial. The failure to correct the 1991 edition of Hitler's War was an oversight. Evans disagreed that the misreading of the note was an innocent mistake. He argued that no historian who was not biased could read the words as saying anything other than haben zu bleiben.

(vi) Shooting of Jews in Riga

Introduction

5.111It is common ground between the Defendants and Irving that, from about the summer of 1941 onwards until the end of 1942, a large number of Jews in the area of the General Government (as a large part of occupied Poland was called) were shot and killed by Nazi Einsatzgruppen. There are issues between the parties as to the scale of the executions which took place and as to whether Hitler approved or knew of the executions. I shall revert to these issues when I come to deal later in the judgment with the extent of Hitler's knowledge of and responsibility for the mass extermination of the Jews.
5.112The immediate issue relates to the manner in which Irving deals in his published works with the circumstances under which the Berlin Jews who, as I have just described, were deported to Riga came to be executed by Jeckeln and his henchmen.

Case for the Defendants

5.113The Defendants also cite Irving's treatment of the shooting of these Jews as another instance of his misrepresentation of events and his determination to exculpate Hitler from responsibility for their fate. In particular the Defendants criticise Irving for his omission to record what Bruns had to say about the shooting of Berlin Jews. In 1941 Bruns had been a colonel stationed in Riga. Later in 1945, when in captivity, he spoke about the shooting to fellow prisoners. His words were surreptitiously recorded so (say the Defendants) there is no reason to suppose he was not telling the truth. The transcript records him as saying that a junior officer named Altemeyer had told him that the Berlin Jews were to be shot "in accordance with the Fuhrer's orders". According to the same transcript, after Hitler had been informed of the shooting Altemeyer showed Bruns another order and said:
"Here is an order just issued, prohibiting mass-shootings on that scale from taking place in future. They are to be carried out more discreetly".
The Defendants contend that Bruns's words represent important and credible evidence from a reliable witness, firstly, that Hitler personally ordered the Riga executions and, secondly, that once informed of the shooting Hitler, far from prohibiting such conduct in the future, ordered that shootings of this kind it should continue but on a more discreet basis.
5.114Despite the crucial importance of Bruns's evidence, of which Irving was aware, there is no reference in any of Irving's books to his claim as to the apparent role of Hitler in regard to the deaths of the Berlin Jews in Riga. Reference is made to Bruns in the introduction to the American edition of Hitler's War, where Irving refers to Hitler's "renewed orders that such mass murders were to stop forthwith". The Defendants contend that this reference wholly perverts the sense of Bruns's account.
5.115In the text of Goebbels at p645 Irving writes that 1000 Berlin Jews and 4000 Riga Jews were shot on 30 November. According to Evans and Browning, the true figure was found in later reports to be at least twice that number and higher estimates of 13-15,000 were given in post-war trials. The Defendants are critical of Irving for minimising the number of those killed. They accept that he refers, albeit tucked away in a footnote, to a claim that 27,800 Jews were murdered but he there describes that claim as exaggerated. Evans testified that the figure of 27,800, which was reported by Einsatzgruppe A was probably justified.
5.116In relation to Hitler's attitude towards the shooting of the German Jews in Riga, the Defendants also criticise Irving for making no mention whatever of the evidence of Schultz-Dubois. This young Nazi officer was entrusted with the task of conveying to Admiral Canaris a report prepared by another officer based in Riga protesting at the shooting. The intention was that Canaris should raise the matter with Hitler. According to a letter from the widow of Schultz-Dubois, which is quoted in a book by Professor Gerald Fleming, Canaris did so but was met with the response:  
"You want to show weakness, do you mein Herr! I have to do that, for after me there not be another one to do it".
This, say the Defendants, is clear evidence that Hitler approved the shooting the Jews yet Irving suppressed it.

Case for Mr Irving

5.117Irving in his evidence adopted an equivocal attitude towards the covertly recorded words of General Bruns about events in Riga. He accepted that in general Bruns is reliable and credible, partly because he did not know his words were being recorded. Nevertheless, noting that Bruns at his trial had denied even having been present at the Riga shootings, there were parts of Bruns's recorded account which Irving discounted. In relation to Bruns's account of Altemeyer having said to him:
"Here's an order that's come, saying that mass shootings of this kind may no longer take place in future. That is to be done more cautiously now"
Irving claimed that the first part means that Hitler had ordered that the mass killings had got to stop. But Irving dismissed the second part, that is, the instruction that the shooting should be done more cautiously in future as nothing more than a sneering aside by Altemeyer.
5.118Irving's reason for discounting these words is that Altemeyer was at the time a young officer in his early 20s and so likely to have fobbed off criticism by a senior officer of what he was doing by referring to "the Fuhrer's orders". It was, according to Irving "a throwaway line". Irving argued that his interpretation of Altemeyer's words is consistent with the intercepted message from Himmler to Jeckeln of 1 December 1941 requiring him to comply with the guidelines for dealing with deported German Jews.
5.119In contrast to his initial assessment of Bruns's reliability, Irving went so far in his cross-examination of Evans as to suggest that his account was third hand and, having been provided four years after the event, could not be treated as hard evidence.
5.120As to the number of casualties in Riga on 30 November 1941, Irving sought to justify the figure he gave in the text of Goebbels, namely 5,000, by   a calculation of the number of corpses which could have been fitted into the pits which General Bruns described in his account of the shootings. If those pits measured 25 metres long by 3 metres wide and 2 metres deep, Irving worked out that, assuming 10 bodies per cubic metre, the pits would have accommodated in the region of 7,000 bodies. Evans expressed the view that such a calculation was meaningless because it contained so many assumptions, not least the assumption that the pits were only 2 metres deep. Irving added that he had not concealed the claim that there were over 28,000 deaths: the claim was in the footnote to which readers could refer.
5.121Irving rejected the Defendants' criticism of him for ignoring altogether in his writing about the Riga shootings the evidence of the widow of Schultz-Dubois, who had been responsible for transmitting a report by a young army officer protesting about the shootings to Admiral Canaris in order that the Admiral might bring it to the attention of Hitler. I understood Irving to say that, although the letter of Mrs Schultz-Dubois which contains this information is to be found on his website, he had not at the material time read it. Irving testified that, whilst he had in 1982 looked at parts of the book by Professor Fleming in which the letter of Frau Schultz-Dubois is quoted, he had not read that passage which at page 98 contains the quotation from her letter. It was put to Irving in cross-examination that the markings in his copy of Flening's book indicate that he read as far as page 104 and so would have read the contents of the letter at page 98. Irving denied that allegation.
5.122Irving did, however, agree that Hitler's reaction as recounted in the letter of Frau Schultz-Dubois is some evidence that Hitler considered it to be his task to kill the Jews. That, Irving agreed, must be what meant by Hitler's phrase "after me there will not be another one to do it [carry out the shooings]". But Canaris was known to be anti-Nazi and so, argued Irving, his report of Hitler's reaction to the report has to be discounted.

(vii) Hitler's views on the Jewish question

Introduction

5.123This is another topic to which I shall need to revert at greater length when I come to deal with the criticisms levelled by the Defendants against Irving for his denial that Hitler was complicit in the genocidal policy of deporting and subsequently killing by the use of gas vast numbers of Jews from all over Europe. At this point I shall confine myself to a summary of the criticisms advanced by the Defendants of Irving's portrayal, in selected   passages from his books, of Hitler's stance on the Jewish question, together with Irving's answers to those criticisms.

The Defendants' case

5.124The case for the Defendants is that at every opportunity Irving portrays Hitler as adopting a non-confrontational posture towards the Jews and being kept in ignorance, at least until the autumn of 1943, of the wholesale liquidation which was under way. This picture is a wholly false one, say the Defendants. It will suffice if I give a selection of the statements made by Hitler on the subject of the Jews on which the defendants place reliance.
5.125The Defendants accuse Irving of perverse and selective quotation and deliberate mistranslation in a passage at p377 of Goebbels which purports to give an account of an occasion described in Hitler's Table Talk for 25 October 1941. Irving describes how Hitler soliloquised to Himmler and Heydrich in the following terms:
"Hitler was neither consulted nor informed [about the mass deportation of Jews from Berlin]. Ten days after the forced exodus began, he referred, soliloquising over supper to Himmler and Heydrich, to the way the Jews had started the war.' Let nobody tell me', Hitler added, 'that despite that we can't park them in the marshier parts of Russia! By the way', he added, 'its not a bad thing that public rumour attributes to us a plan to exterminate the Jews'. He pointed out, however, that he had no intention of starting anything at present. 'There's no point in adding to our difficulties at a time like this' ".
Evans asserted that the claim that Hitler was neither consulted nor informed about the deportations is pure invention. He contended that a true translation of that extract from the Table Talk is as follows:
"Nobody can tell me: but we can't send them into the morass! For who bothers about our people? Its good if the terror (schrecken) that we are exterminating Jewry goes before us .. I'm forced to pile up an enormous amount of things myself; but that doesn't mean that what I take cognisance of without reacting to it immediately, just disappears. It goes into an account; one day the book is taken out. I had to remain inactive for a long time against the Jews too. There's no sense in   artificially making extra difficulties for one self; the more cleverly one operates, the better ....".
5.126A series of cumulative criticisms are made of Irving's version of this extract from Hitler's Table Talk. The original text does not refer to "parking" nor to Russia. By rendering schrecken as "rumour" Irving waters down the original. Besides there is no reference in the original to "attributing": the extermination is presented as a fact. The German original makes clear that Hitler regarded the period of inaction vis-à-vis the Jews to be over. The moment has come to strike. The Defendants argue that the net result of Irving's version of Hitler's remarks is wholly to misrepresent the thrust of Hitler's remarks.
5.127In his diary Goebbels recorded a meeting with Hitler on 21 November 1941 in terms which included the following:
"The Fuhrer also completely agrees with my views with reference to the Jewish question. He wants an energetic policy against the Jews, which, however, does not cause us unnecessary difficulties".
Yet at p379 of Goebbels Irving writes that Goebbels displayed a far more uncompromising face than Hitler's towards the Jews. That is followed by a passage quoting the extract from Goebbels's diary just cited in the following terms:
" ...[Hitler] again instructed Goebbels to pursue a policy against the Jews that does not cause us endless difficulties ...".
The Defendants claim that Irving distorts the sense of the diary entry by omitting the reference to Hitler wanting an energetic policy towards the Jews and by omitting the first sentence recording Hitler's agreement with his (Goebbels's) views about the Jewish question.
5.128The Defendants rely also upon Irving's account of a speech made by Hitler to the Gauleiter on 12 December 1941, when, according to Goebbels's diary (in Longerich's translation):
"As concerns the Jewish question, the Fuhrer is determined to make a clean sweep. He had prophesied to the Jews that if they once again brought about a world war they would experience their own   extermination (vernichtung). This was not just an empty phrase. The World War is there, the extermination of Jewry (Judentum) must be the necessary consequence. This 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 16,000 dead in the Eastern campaign, then the authors of this bloody conflict must pay with their lives".
The Defendants' case is that, according to Goebbels's account, Hitler was expressly contemplating the extermination of Jews generally. The Defendants argue that his passage, which followed one day after the outbreak of war between Nazi Germany and the Unites States, echoes what Goebbels had earlier written in an article in Das Reich and that it demonstrates that Hitler was determined to act no less brutally towards the Jews than was Goebbels. It marks, say the Defendants, the reaction of Hitler to the outbreak of world war, which was that the Jews must be annihilated.
5.129According to the Defendants, confirmation for this proposition is to be found in the account of General Governor Hans Frank (who Irving accepts was in Berlin when Hitler spoke to the Gauleiter), which states:
"In Berlin we were told 'why all this trouble? We cannot use them in the Ostland or the Reichscommissariat either. Liquidate them yourselves! We must destroy the Jews wherever we encounter them and wherever it is possible in order to preserve the entire structure of the Third Reich".
Frank's diary contains the following further passage:
"... we cannot shoot these 3.5 million Jews. We can't poison them. But we will, however, be able to undertake interventions which in some way lead to a successful annihilation, and indeed in connection with the large scale measures to be undertaken from the Reich and to be discussed. The General Government must become just as free of Jews as the Reich is. Where and how that happens is a matter for the institutions which we must put into action and create here and the effectiveness I will report on to you in good time".
  The Defendants contend that Frank was there recording what had in effect been a direction to the General Government from Berlin to liquidate the Jews. The Defendants assert that the latter passage is "an evolutionary document", presaging the extermination of Jews by gassing.
Criticism was levelled at Irving for his claim at p428 of the 1991 edition of Hitler's War that Hitler was in East Prussia when the instruction to liquidate the Jews was issued. The probability is that Hitler was in Berlin at the material time, since he did not leave Berlin for the East until 16 December. This, according to the Defendants, is an instance of Irving manipulating the record and telling "a fib" in order to distance Hitler from the instruction to liquidate the Jews.
5.130Next the Defendants rely on a manuscript note made by Himmler of a conversation he had with Hitler on 16 December 1941 which includes the words:
"Jewish question / to be extirpated (auszurotten) as partisans".
Longerich regarded this note as confirmation of Hitler's intention to continue and intensify the mass murders of Soviet Jews. It is consistent with the way in which the killing of 363,211 Jews was treated in report by the Einsatzgruppen of 26 December 1942 (to which I shall refer again later): in that report the number of Jews killed was included as a separate category under the heading of partisan accomplices. This report is endorsed in manuscript "laid before [vorgelegt] Hitler".
5.131The Defendants criticise the account given by Irving at p465 of Hitler's War (1991 edition) of Hitler's attitude towards the Jews in March 1942. The reader is given to understand that the concern of Hitler was to procure the deportation of Jews out of Europe. Irving refers to Hitler's wish, repeatedly stated, to postpone dealing with the Jewish problem until after the war is over. He claims that Goebbels never discussed with Hitler the realities of what was happening to the Jews in the General Government.
That account, say the Defendants, takes no account of the statements repeatedly made by Hitler from 1941 onwards that the Jews must be eliminated and that they were a "bacillus" which needed to be eliminated. Examples are to be found in the entries made by Goebbels in his diary on 15   February and 20 March 1942 and in Hitler's Table Talk on 22 February 1942).
Also omitted by Irving is the reference made by Goebbels to Hitler as a protagonist for and champion of the radical solution to the Jewish question necessitated by the "way things are". There is, according to the Defendants, no justification for Irving's claim that Goebbels discussed with Hitler "the realities" of the situation. What Irving is unwarrantably seeking to do, say the Defendants, is to distance Hitler from the policy of killing the Jews.
5.132Next the Defendants accuse Irving of suppressing several references made by Hitler in January and February 1942 to the extermination (ausrottung) of Jews, for example in his Table Talk on 25 January 1942. Hitler is there recorded as having said on that occasion:
"The Jew has to get out of Europe ... If he collapses in the course of it, I can't help there. I can see only one thing: absolute extermination, if they don't go of their own accord ..".
The latter sentence is omitted at p464 of Hitler's War (1991 edition) in order, so the Defendants say, to exculpate Hitler.
5.133Similarly the Defendants point to the omission by Irving of any reference to Hitler's statements in the Table Talk for 22 February 1942: "We will get well when we eliminate the Jew", They rely also on the omission of a similar remark by Hitler to NSDAP party members on 24 February 1942 when Hitler again talked of extermination and removing parasites.
5.134Evans in his report criticises the omission from Irving's account of Goebbels's diary entry for 30 May 1942 but the Defendants no longer rely on this criticism. Similarly the Defendants no longer pursue Evans's criticism of Irving for not recognising that the reference in the Hitler Table Talk of July 1942 to Jews emigrating to Madagascar was euphemistic.
5.135However the Defendants rely further in this connection on the following: the reaction of Hitler to the shooting of the Jews I Riga in November 1941, as reported by the widow of Schultz-Dubois (referred to at (vii) above); Himmler's minute of 22 September 1942; Himmler's note of 10 December 1942; Hitler's meetings with Antonescu and Horthy in April 1943   and Ribbentrop's statements made at Nuremberg (all of which will be referred to later in this section).
5.136 The Defendants contend that, individually and collectively, the misinterpretations, partial quotations and omissions which I have summarised amount to a serious misrepresentation of Hitler's attitude towards the Jewish question. As further evidence of the uncompromisingly harsh and active role in the persecution of the Jews the Defendants rely also on his role in such events as the expulsion and shooting of the Berlin Jews in Riga (with which I have already dealt); his role in the deportation of European Jews to the East; his attitude towards the Jews in France; his determination to procure the extermination of the Hungarian Jews and Ribbentrop's assessment of Hitler's responsibility for the fate which befell the Jews (to all of which issues I will shortly come).

Irving's response

5.137 In the course of his cross-examination, Irving produced another "chain of documents" by way of positive rebuttal of the contention of the Defendants, that his portrayal of the attitude of Hitler to the Jewish question was fundamentally false. It consisted of a selection of documents which, he said, support his contention that Hitler was a friend of the Jews. Included amongst those documents were, firstly, an order dating back to 1935 that isolated actions against Jews were not to take place and would be severely punished; a directive issued in 1936 that there were to be no excesses against the Jews following the assassination of a Swiss named Gustlov; another directive of July 1937 by which Hitler permitted selected non-Aryans to remain in the Nazi party and a 1939 document in which the Czech Foreign Minister reports Hitler saying the Jews were being economically annihilated and talking of deporting them to Madagascar.
5.138Later documents in Irving's "chain" include a note made by the Nazi ambassador to France in August 1940 recording Hitler's wish to include in peace treaties with nations defeated by the Nazis a condition that they should deport their Jews out of Europe. Another document relied on by Irving is a query raised in November 1941 by the Reichskommssar for the Ostland asking whether all Jews in his area are to be liquidating since he can find no directive to that effect. Irving claimed that this indicates that there was no such directive. Irving also relied on the instruction given by Himmler in November 1941 (which is considered above) that there is to be no liquidation of Jews from Berlin. Next in the "chain" relied on by Irving is a   note by Rosenberg of a conversation he had with Hitler in December 1941 (shortly after war was declared on America) which records Hitler as having approved Rosenberg's policy of not talking about the extirpation of Jewry. According to the note, Hitler had said that Jews had brought about the war and had thereby brought about their own destruction. Rosenberg did not record Hitler as favouring a policy of exterminating the Jews.
5.139As to Himmler's note of his discussion with Hitler on 18 December 1941 about the Jewish question, which records that the decision that Jews were to be extirpated as partisans (auszurotten als Partisane), Irving interpreted this note as meaning that the Jews were to be executed as partisans because that is what they were. Irving made reference to the recollection over twenty years afterwards of one of the authors of Hitler's Table Talk that Hitler had in December 1941 said that all he was asking of the Jews was that they should perform hard labour somewhere. In the same vein Irving referred to a document dated 6 July 1942 recording Hitler's decision that Jews in specific occupations should be protected from persecution. Then Irving cited Hitler's Table Talk for 24 July 1942 for Hitler's comment about getting rid of the Jews to Madagascar.
5.140The last documents in Irving's "chain" is the letter from Himmler to General Berger dated 28 July 1942 in which he writes that the Fuhrer has placed on his shoulders the burdensome task of rendering the eastern territories free of Jews. Irving interpreted this to mean that Hitler has ordered Himmler to remove the Jews from those territories (whereas Evans said it plainly means they were to be killed).
5.141Irving relies also upon extracts from the agenda for two discussions between Hitler and Himmler on 17 or 22 July and 10 December 1942 respectively. The former includes the words "Judenauswanderung (Jewish emigration) - how to proceed further". The latter has the word abschaffen (abolished) written beside a reference to 600-700,00 Jews supposedly in France. It is followed by a memorandum from Himmler that these Jews are to be abtransportiert (deported). Irving maintains that the terms used in these documents all suggest that deportation was the policy towards Jews. Irving's chain ends there because, with effect from October 1943, he accepts Hitler knew of the policy of exterminating the Jews.
5.142Evans's response to the series of documents was that they do not amount to much. He did not accept that they justified or excused the way   Irving portrays Hitler's position on the Jewish question. Evans agreed that Hitler undoubtedly in specific occasions did intervene on behalf of identified Jews or groups of Jews. He accepted that until the latter part of 1941 Hitler's preferred solution to the Jewish problem was deportation. Thereafter Evans contended that Hitler approved their extermination even though he did not say so in terms. That is the interpretation which he puts on Rosenberg's note of December 1941. The reference to deportation to Madagascar in Hitler's Table Talk for 24 July 1942 is camouflage, according to Evans, since the Madagascar plan had been abandoned in February 1942. Bearing in mind what was going on in mid-July 1942 Evans takes the view that Judenauswanderung and abtraansportiert are plainly euphemisms for extermination. Evans asserted that Irving's selection of documents ignores the vastly greater number of documents which evidence Hitler's murderous intentions towards Jews of all nationalities.
5.143Dealing with the specific passages in his books which the Defendants highlighted, Irving excused the inaccuracies in his version of Hitler's reported comments made in October 1941 about parking Jews in the marshier parts of Russia by saying, correctly, that at the time in the 1970s when he wrote the first edition of Hitler's War the only version which was available to him was the English translation of those comments made for Weidenfeld & Nicolson in 1953. Irving followed that translation. Irving conceded, however, that even after the German original became available to him, he repeated the translation errors in the second edition of Hitler's War and retained some of them in Goebbels. This he excused on the basis that the Weidenfeld's translation is not a serious deviation from the original and has the virtue that it is not a "wooden" version. Irving totally disagreed with the suggestion put to him that he was deliberately using a mistranslation in order to exculpate Hitler.
5.144Irving rejected the criticism of his account of Goebbels's diary entry for 22 November 1991 which gives an account of his meeting with Hitler the previous day. He admitted that he omitted the word "energetic" but contended that it was legitimate to leave the matter "neutral" because the account had been filtered through the evil brain of Goebbels who was given to claiming falsely to have the Fuhrer's authority for what he had done.
5.145In regard to Hitler's speech to the Gauleiter on 12 December 1941, Irving claimed that the account given by Goebbels of what Hitler said was mendacious. He argued that the extermination (vernichtung) of Jews was not   a quotation of what Hitler had said (although Hitler had used that word in relation to the Jews in his famous speech to the Reichstag in 1939) but rather Goebbels expressing his own view and intention. If he had been quoting Hitler, said Irving, Goebbels would have used the subjunctive tense. He did, however, agree that it is impossible to say which part of the diary is recording Goebbels's own thoughts and which parts are recording what Hitler said. Irving was reluctant to accept the translation of vernichtung as extermination. He claimed that what the reference was to the annihilation of Judaism as opposed to the extermination of Jewry.
5.146Irving agreed that there is no reference in his biography Goebbels to this part of Hitler's speech to the Gauleiter on 12 December 1941. The reason, according to Irving, is that at the time of publication he had not seen the microfiche containing those words. Irving offered the explanation that, when he went to Moscow to inspect the microfiches of the Goebbels diaries there, he was looking for entries relating to Pearl Harbour. He claimed that, when he came to the entry for 13 December 1941 (in which entry Hitler's remarks of the previous day are recorded) he did not read as far as the passage relating to what Hitler said to the Gauleiter about the Jews. The Defendants do not accept the veracity of Irving's answer: they assert that Irving, when in Moscow, started reading the entry for 13 December. The Defendants refuse to accept that Irving would have stopped reading the entry mid-way through and before the highly significant passage relating to the Jews which is contained in Goebbels's account of Hitler's speech to the Gauleiter. Irving responded that he was under pressure of time when in Moscow. He firmly denied having read that passage, adding that, even if he had read it, he would not have regarded Hitler's remarks it as significant since it is "the old Adolph Hitler gramophone record".
5.147As to General Governor Frank's account on 16 December 1941 of what he had been told in Berlin, Irving claimed in cross-examination that the logical interpretation was that he (Frank) had told the authorities in Berlin to liquidate the Jews themselves and not the other way round. It was put to Irving that this was not how he had interpreted Frank's words at p427 of Hitler's War (1991 edition). Irving refused to accept that the "large scale measures" of which Frank spoke in his diary meant that Jews were to be exterminated. Asked why, in that passage in Hitler's War, he had taken pains to claim out that Hitler was not in Berlin at the time, Irving conceded that he was indicating to readers that Hitler had not been in Berlin when Heydrich's agencies were giving the instruction to liquidate the Jews. Irving   accepted that there was no indication in Goebbels's diary or in Frank's account that it was Heydrich or his agencies which had issued that instruction.
5.148Irving gave evidence that did not see the note of Hitler's conversation with Himmler on 16 December 1941 until the summer of 1999 and so could not be criticised for not referring to it in the 1991 edition of Hitler's War. But he accepted, with some reluctance, that it does establish that Hitler authorised the liquidation of Jews in the East as if they were partisans.
5.149In answer to the criticism that he omitted from his account of Hitler's Table Talk for 25 January 1942 Hitler's reference to exterminating the Jews, Irving responds that he gave the reader "the meat" of what Hitler said by recording that he repeated the prophecy made in the Reichstag in 1939. Irving dismissed the criticism of his account of Hitler's attitude towards the Jewish problem in March 1942. Nowhere is there any sheet of paper recording Hitler as having said "liquidate the Jews". Irving asserted that he has faithfully reflected what Goebbels reported. Hitler was still talking of deportation. Even in the reports Hitler's Table Talk (when Hitler was amongst friends and so, according to Irving likely to be candid and unlikely to resort to camouflage), he is recorded as speaking of the plan to deport the Jews to Madagascar at the end of the war. Irving repudiated the suggestion that this was a euphemism. When asked how he reconciled the notion that Hitler was thinking in terms of deportation with his acceptance that Hitler knew about and approved the mass shootings of Jews on the Eastern front, Irving responded that he believes Hitler drew a distinction between European Jews (for whom he planned deportation) and the Jews in the East (whom he regarded as vermin fit only to be shot).
5.150Irving regarded Goebbels's diary entry for 30 May 1942 as constituting "acres of sludge" not worth including in his book. He maintained that he is right to treat the reference to Madagascar in Hitler's Table Talk of 24 July 1942 as Hitler talking of resuming the Madagascar plan after the war. Irving insisted that his portrayal of Hitler's views about the Jews over this period was fair, objective and warranted by the available evidence.
 

(viii) The timing of the "final solution" to the Jewish problem: the 'Schlegelberger note'

Introduction

5.151One central document cited by Irving in support of his case that Hitler consistently intervened to mitigate the harm sought to be done to the Jews is a note said to have been dictated by an official in the Reich Ministry of Justice, namely Schlegelberger, which is undated but which is claimed to have come into existence in the spring of 1942, which records what he has been told by Lammers, a senior civil servant at the Reichskanzlerei:
"Reichsminister informed me that the Fuhrer has repeatedly declared to him that he wants to hear that the solution to the Jewish question has been postponed until after the war is over".
That note, says Irving, is incompatible with the notion that Hitler authorised or condoned the wholesale extermination of Jewry during the war.

The Defendants' case

5.152 Evans identified several curious features about this note and its provenance: it is undated; it bears no signature; the addressees are not listed in the conventional manner; it appears to come from a file containing miscellaneous documents about Jews which was put together after 1945 by the prosecutors at Nuremberg. Not all the documents in the file deal with the same subject-matter. Despite these unsatisfactory features Evans accepted that the memorandum is an authentic copy or Abschrift of an original document which has gone missing. He does, however, add that it is no more than speculation that Schlegelberger is the author of the memorandum.
5.153Evans canvassed the possibility that the note dates back to 1941, in which case the view attributed to Hitler would be consistent with the attitude towards the Jewish question which he was advocating at that time, namely to postpone dealing with it until after the war was over. In support of this theory Evans drew attention to figures appearing on the document "17.7". If the document is dated 17 July 1941, that would be the day after an important meeting at which arrangements were set in place for the administration of the Eastern territories.
5.154Another possibility recognised by Evans is that document did come into existence in early 1942 in the wake of the Wannsee conference, at   which the Defendants (basing themselves largely on the admissions which were made by Eichmann in the course of his interrogation by the Israelis) contend the extermination of the Jews was discussed and the means of achieving that end were in broad terms agreed upon. Evans accepted that on balance it is more likely that the date of the memorandum is 1942 rather than 1941.
5.155He expressed the opinion that the subject matter of the note was probably not the Jewish question generally but rather the narrower issue of mixed marriages between Jews and gentiles and the children of such marriages (mischlinge). This contentious question had been discussed at the Wannsee conference in January 1942, at which time no decision was arrived at how mischlinge should be treated, although the policy of deportation of 'full Jews" to the East had already been agreed upon.
There is, according to Evans, evidence that active discussions thereafter took place within the Ministry of Justice as to what policy and classification should adopted in relation to the mischlinge. A further conference was called for 6 March 1942 with a view to hammering out a solution. It is an important component of the Defendants' argument that, as the minute of the meeting on 6 March shows and as Schlegelberger testified at his trial, it was devoted exclusively to a discussion of the mischlinge problem.
5.156Various proposals were canvassed, including suggestions that sterilisation should be undertaken and that mixed marriages should be annulled by law. But the meeting was inconclusive. At the meeting on 6 March it was decided that the issue should be referred to Hitler for his decision. Evans stressed that, odd though it may seem with the Nazi army in dire straits in Russia, the problem of mischlinge was taken extremely seriously. Contemporaneous documents reveal Shlegelberger to have been seriously concerned at the ramifications of one of the proposed courses of action, namely deciding on a case by case basis what should be done with individual mischlinge Jews. Suggestions such as sterilisation and the annulment of mixed marriages were also a cause for concern within the Ministry which would have the responsibility for the supervision of whatever policy was decided upon.
5.157Accordingly Schlegelberger wanted to raise the matter with Lammers and did so on 10 March 1942. It is not clear whether Lammers did in fact consult Hitler on the issue. The language of the memorandum does not suggest that Lammers went to Hitler and obtained a fresh ruling from him on   the specific question of the mischlinge. In any case the likely reaction of Hitler to the complex issues raised by the many problems surrounding the question of half and quarter Jews would have been to postpone their consideration. Whether or not Hitler was consulted, the natural inference, according to Evans, is that the memorandum is confined to the question of mischlinge. The description in the memorandum of the discussions as "theoretical" is also suggestive of the fact that the subject matter is confined to Mischlinge. Hitler would not have agreed to the postponement of the Jewish question in its entirety, argued Evans, so soon after the Wannsee conference. Moreover, added Evans, it was Hitler who had set in train the policy of deporting the Jews to the Eastern territories. That policy had been implemented over the previous months. In those circumstances Hitler is unlikely to have ordered that the whole Jewish question be postponed until the end of the war.
5.158Evans concluded that it is very likely that the Schlegelberger note should be interpreted as addressing the limited question of the solution to the problem of half Jews. Longerich concurred with this opinion.
5.159Evans was critical of Irving for the way in which he describes the memorandum in Goebbels:
"Hitler wearily told Lammers that he wanted the solution of the Jewish problem postponed until after the war was over, a ruling that remarkably few historians now seem disposed to quote".
Evans regarded that passage as a complete misrepresentation of the memorandum. There was no ruling by Hitler. In any case the deportations and killings continued unabated, which would scarcely have happened if Hitler had ordered their suspension.
5.160But Evans reserved the main thrust of his criticism for the account of the memorandum in Hitler's War, where the reader is clearly given to understand by the passage at p464 that the note is "highly significant" because it shows Hitler to be wanting to put off the entire Jewish question until the end of the war. Irving regards the note as so important that he includes the following reference to it in the introduction:
"Whatever way one looks at it, this document is incompatible with the notion that Hitler had ordered an urgent liquidation programme".
  Evans maintained that evidence of actions taken within the Ministry of Justice and elsewhere belie Irving's claim. Moreover, if Hitler had indeed given an instruction to postpone the final solution of the Jewish question until after the war, how, asked Evans, is it that the extermination programme pressed ahead in the remaining months of 1942 and thereafter.
5.161The Defendants argue that no reputable and objective historian would nail his colours to the mast in the way that Irving has done by admitting only one possible interpretation of the note. The nub of their criticism is that Irving treats the Schlegelberger memorandum as if it permitted of only construction, namely that it evidences Hitler ordaining the postponement of the Jewish question until the end of the war. Irving glosses over the many doubts which exist about the document. He ignores the alternative construction of which the memorandum is equally susceptible (to put it no higher), namely that it is confined to the problem of the mischlinge. An unbiassed historian would have placed squarely before his readers the problems and doubts about the document. It is, say the Defendants, another instance of deliberate distortion.

Irving's response

5.162Irving acknowledged that the Schlegelberger memorandum is an unsatisfactory document. But he is satisfied that it is authentic. He pointed out reference was made to a complete copy of the memorandum (typed out in full with initials) as early as 1945 in a list compiled by the British Foreign Office of documents found in the files of the Nazi Ministry of Justice. That copy subsequently went missing. Irving has attempted, without success, to obtain the top copy from the US National Archives. He speculated that the copy in the file which was assembled by the prosecutors at Nuremberg file may have been removed by them because they did not want Lammers to be able to use it to exculpate himself. At all events Irving has no doubts about the genuineness of the memorandum. (Evans agreed that the Abschrift is a record of an authentic memorandum, adding the rider that Irving's eagerness to treat this document as genuine contrasts starkly with his scepticism about the integrity of documents which do not fit in with his thesis).
5.163Regardless of its unsatisfactory features, Irving remained firm in his view that the Schlegelberger note is vital document which provides a clear indication of Hitler's wish expressed in the spring of 1942 to postpone a decision on the Jewish question generally until after the end of the war.   During the evidence Irving made reference time and again to the memorandum, which he regards as the linchpin of his case for saying that Hitler sought to protect the Jews.
5.164Irving dismissed the notion that the note dates back to 1941 as a "vanishingly small probability". In support of this conclusion Irving referred to a Staff Evidence Analysis sheet, apparently prepared by the prosecutors at Nuremberg who assembled the file which contained the memorandum. Irving points out that, with one exception, the documents in the file come from the period March to April 1942. So the 1942 date tallies with the dates of most of the documents in the file.
5.165In support of his contention that Schlegelberger was referring to the Jewish question generally, Irving argued firstly that the discussion at the continuation of the Wannsee conference on 6 March 1942 was not confined to the mischlinge problem (although he agreed that the minute of the meeting suggests otherwise). Irving cited in support of this contention the post-war evidence of Ficker and Boley who were both present. (Evans dismissed their evidence as self-exculpatory). Irving went on to point out that the file in which the memorandum was contained is broadly entitled "Treatment of the Jews". Another document in the file is "Overall solution of the Jewish problem". Irving maintained that the immediately preceding document in the file supports his interpretation of the note that it is dealing with the question of Jews generally, not just mischlinge. In that document dated 12 March 1942 Schlegelberger referred to the meeting which had been held on 6 March as having been concerned with the treatment of Jews and mixed races. He expressed the wish that Lammers should consult Hitler about the decisions which would need to be taken which he considered to be completely impossible. Irving argues that this letter also indicates that both the Jews generally and the mixed race issue were under discussion. Following his receipt of that message, it appears that Lammers offered to meet Schlegelberger on the return of the former to Berlin at the end of March. As Evans agreed, the pair probably met in early April. Irving argued that this chronology suggests that the date of the memorandum would be early April by which time Lammers had spoken to Hitler.
5.166Irving relied on the terms of the Schlegelberger memorandum itself. He pointed out that it refers conjunctively to Jews and mixed marriages as if both (separate) topics were under consideration. It is headed "The solution of the Jewish question", which suggests a broad not a narrow subject-matter.   (Were it not so headed he would have considered Evans's interpretation a viable alternative theory). Irving argued that there is nothing in the terms of the memorandum itself to justify the narrow interpretation put on it by the Defendants. Irving argued that in the spring of 1942 Hitler was preoccupied with events on the Eastern front. In that situation his likely reaction, upon being asked about the Jewish question, was that it should be put off until the end of the war. Evans considered that this argument ignores Hitler's obsessive anti-semitism which continued to dominate Hitler's thinking, even at times of military crisis.
5.167Irving produced what he described as an extract from the evidence which Lammers gave at his trial when he testified that Hitler had told him that he had given Himmler an order for the evacuation of the Jews and that he (Hitler) did not want to hear any more about the problem until the end of the war. Evans took the view that that Lammers was seeking to avoid incriminating himself when he claimed that Hitler wanted no more than the deportation of the Jews.
5.168Irving defended his treatment of the note at p 464 of the 1991 edition of Hitler's War by pointing out that he did make mention of the problem of the mischlinge. He explained that pressure of space prevented him from making clear to the reader of the text of Goebbels that the 6 March 1942 conference was confined to the mischlinge issue. There was, he said, no question of his having distorted the evidence.
5.169Irving maintained that the Defendants are trying to devalue what is a "high level diamond document" when they argue that it bears only on the problem of the mischlinge.

(ix) Goebbels's diary entry for 27 March 1942

Introduction

5.170After the successful Nazi invasion of Poland in 1939, part of the newly acquired territory was absorbed into the Reich. In order to make way for ethnic Germans from other parts of Eastern Europe, the Poles from that area were deported eastwards into central Poland, which constituted the western sector of the General Government. The Jews and gypsies were deported into the eastern sector of the General Government in the region of Lublin.
 
5.171Initially the Jews were concentrated in ghettoes where living conditions were atrocious. But, following the Nazi invasion of Russia in June 1941, there was a change of policy. As I will describe in greater detail hereafter, task forces called Einsatzgruppen set about the systematic killing of Soviet Jews. In about the autumn of 1941 the extermination policy was extended to Jews in the area of the General Government. The gassing of Jews commenced in December 1941 at an extermination centre called Chelmno in the Warthegau; the latter being an area containing territory incorporated into the Reich after the conquest of Poland. In November 1941 construction of another death camp started in the General Government at Belzec which is situated south-east of Lublin. Jews were murdered in gas chambers at this camp. Two further camps were established the following year at Sobibor and Treblinka.
5.172So much is common ground between the parties. What is in issue is the manner in which Irving deals with the question of whether Hitler was aware of the policy of exterminating Jews.

The case for the Defendants

5.173In Hitler's War (1977 edition) Irving claims that Hitler was kept in the dark about the policy of exterminating Jews in the East. He wrote at p392:
"The ghastly secrets of Auschwitz and Treblinka were well kept. Goebbels wrote a frank summary of them in his diary on March 27 1942, but evidently held his tongue when he met Hitler two days later, for he quotes only Hitler's remark: 'The Jews must get out of Europe. If need be, we must resort to the most brutal methods' ".
Irving wrote in similar terms in the 1991 edition. After quoting the references in Goebbels's diary to the brutal methods being employed against the Jews, he continued:
" 'The Jews have nothing to laugh about now', commented Goebbels. But he evidently never discussed these realities with Hitler. Thus this two-faced Minister dictated, after a further visit to Hitler on April 26, 'I have once again talked over the Jewish question with the Fuhrer. His position on this problem is merciless. He wants to force the Jews right out of Europe...' ".
 
5.174The Defendants' case is that Irving's claim that Goebbels deceived Hitler when (according to Irving) they met on 29 March is wrong: they accuse Irving of manipulating the diary entry for 27 March and ignoring other documents and sources which demonstrate that Hitler was well aware what was happening to the Jews in the East. The full diary entry (quoted at p400 of Evans's report) included the following passages:
"The Jews are now being pushed out of the General Government, beginning near Lublin, to the East. A pretty barbaric procedure is being applied here, and it is not to be described in any more detail, and not much is left of the Jews themselves. In general one may conclude that 60% of them must be liquidated, while only 40% can be put to work. The former Gauleiter of Vienna [Globocnik], who is carrying out this action, is doing it pretty prudently and with a procedure that doesn't work too conspicuously. The Jews are being punished barbarically, to be sure, but they have fully deserved it. The prophesy that the Fuhrer issued to them on the way, for the eventuality that they started a new world war, is beginning to realise itself in the most terrible manner. One must not allow any sentimentalities to rule in these matters. If we did not defend ourselves against them, the Jews would annihilate us. It is a struggle for life and death between the Aryan race and the Jewish bacillus. No other government and no other regime could muster the strength for a general solution of the question. Here too the Fuhrer is the persistent pioneer and spokesman of a radical solution, which is demanded by the way things are and thus appears to be unavoidable. Thank God during the war we have a whole lot of possibilities which were barred to us in peacetime. We must exploit them. The ghettos which are becoming available in the General Government are now being filled with the Jews who are being pushed out of the Reich, and after a certain time the process is then to renew itself here. Jewry has nothing to laugh about ... ".
5.175Evans argued that the references to Globocnik and to killings to the east of Lublin make clear that Goebbels was writing about Belzec and not about Auschwitz or Treblinka, as Irving claimed in his text. But the key omission in Hitler's War, according to Evans, is Goebbel's description of Hitler as "the persistent pioneer and spokesman of a radical solution". The radical solution cannot in the context be taken to refer to the policy of deporting Jews to the East. It must indicate that Hitler was aware what was   going on in the extermination camps in the East. By deliberately omitting of that reference, Evans alleges that Irving perverts the true significance of the entry. There is absolutely no evidence that Goebbels "held his tongue". The overwhelming likelihood that the pair of them would have discussed enthusiastically what treatment was being meted out to the Jews in the General Government.
5.176The Defendants claim that, when Hitler is recorded as having spoken at this time of the annihilation (vernichtung) or extirpation (ausrottung) of the Jews he was indeed using the terms in a genocidal sense. Moreover the stance attributed to Hitler by Goebbels accords with sentiments previously expressed by Hitler, notably in his speech to the Gauleiter on 12 December 1941 (to which I have already referred) when Hitler spoke of the Jews "experiencing their own annihilation" if they should once more bring about a world war. It also accords with two of Goebbels's diary entries from this period. The entry for 20 March 1942 records Hitler as having remarked:
"We speak in conclusion about the Jewish question. Here the Fuhrer remains now as before unrelenting. The Jews must get out of Europe, if necessary, with the application of the most brutal means".
The entry for 30 March 1942 includes the following passage:
"Thus I plead once again for a more radical Jewish policy, whereby I am just pushing at an open door with the Fuhrer".
5.177In both editions of Hitler's War, Irving asserts that Hitler was speaking of deporting the Jews from Europe and so must be taken to have been ignorant of the programme of extermination. But Evans, having analysed the quotations given by Irving together with other reports of statements made by Hitler on the topic, concluded that they show that, when Hitler talked of pushing the Jews out of Europe to the East, he was well aware of the genocidal fate which awaited them. Evans expressed the opinion that this was the radical solution which Hitler was advocating, in full knowledge of what it entailed. Hitler knew that Jews were being systematically killed in the East. Hitler spoke frequently of the murderous fate awaiting the Jews, using such terms as "annihilation" and "extermination" although he took care not to go into the detail of the programmes. Irving, so it is alleged, was at pains to suppress this body of evidence.
 
5.178Evans on behalf of the Defendants concluded that Irving's treatment of Goebbels's diary entry for 27 March 1942 wholly misrepresents Hitler's state of knowledge.

Irving's response

5.179Irving suggested (and Evans agreed) that it is apparent from Goebbels's diary entry for 27 March 1942 that he is there summarising information which has been provided to him. There is no evidence that Hitler was provided with that information. Irving advanced the somewhat technical argument that Goebbels's diary entry might be evidence against him as to his state of knowledge but could not be evidence of the state of knowledge of Hitler because as against him it is hearsay. As Evans pointed out, historians, including Irving, perforce use hearsay evidence all the time. But Irving persisted in his assertion that the entry is at worst evidence of Goebbels's knowledge of the gassing and does not touch upon the question of Hitler's knowledge. Irving claimed that Hitler and Goebbels did not see each other in private more than about ten times in 1942.
5.180Moreover, according to Irving, the entry does not establish that even Goebbels knew what was happening in the death camps: he is just speculating when he writes that 60% of the Jews must be liquidated. Evans pointed out that this contention is difficult to reconcile with Irving's claim that on 27 March 1942 Goebbels was summarising in his diary "the ghastly secrets of Auschwitz and Treblinka". Irving criticised Evans's translation of "Im grossen kann man wohl feststellen..." as "In general one may conclude that ..." because it omits the word wohl which is indicative of the speculative nature of this part of the diary entry.
5.181A further argument advanced by Irving is that, in several of the diary entries relied on by the Defendants, Goebbels falsely claims to be acting with the knowledge and authority of Hitler so as to provide himself with an alibi or excuse in case of later blame or criticism.
5.182Irving claimed that there are many other contemporaneous documents which show Hitler displaying an attitude towards the Jews which is anything but homicidal. One example which Irving cites is Goebbels's diary entry for 30 May 1942 on which Evans also placed reliance. Irving drew particular attention to the following;  
"Therefore the Fuhrer does also not wish at all for the Jews to be evacuated to Siberia. There, under the harshest living conditions, they would undoubtedly for an element of vitality once more. His preferred solution would be to settle them in central Africa. There they live in a climate which would surely not render them strong and capable of resistance. In any case it is the Fuhrer's wish to make west Europe completely Jew-free. Here they will not be allowed to have any home anymore".
Irving argued that this passage demonstrates that Hitler was still thinking in terms of deportation and resettlement. Hitler was "talking tough" about the loss of life which the Jews might suffer in the course of deportation but he was not contemplating genocide. Irving argued that, when Hitler uses such terms as ausrotten in relation to the Jews, he is talking of them being uprooted and transported elsewhere not of their being liquidated. Irving cited other instances where Hitler is recorded as having used at about this time such terms as Auswanderung and Evakuierung. Hitler talked also of resettling the Jews in Siberia of Lapland or even Madagascar. Evans rejected that argument. Hitler's references to resettlement of the Jews at this time are euphemistic. It would have been impractical, Evans suggested, to carry out a programme of extermination by the use of coded language. Hitler's reference to deporting the Jews to Madgascar must be camouflage because Hitler himself had earlier in the year called a halt to that plan and ordered that the Jews be sent to the East.
5.183As to the entry in Goebbels's diary for 30 March 1942, it is, according to Evans, clear from the earlier section that, in his confidential meeting with Goebbels, Hitler told him he favoured a radical solution of the Jewish problem. The latter part of the entry, relied on by Irving, corresponds very closely with Hitler's Table Talk on 29 May 1942. Evans considered that Goebbels in the latter part of the entry was recording in his diary what he had heard Hitler say in the course of a general discussion on 29 May rather than continuing with his account of their private meeting. That, according to Evans, explains why camouflage language is to be found in the latter part of the diary entry. Evans contended that Hitler habitually resorted to camouflage when others were present. According to Picker (one of those who recorded Hitler's Table Talk) Hitler never spoke over the table of the concentration camps. Evans concluded that the reference in the diary entry to sending the Jews to central Africa is therefore not to be taken seriously.
 
5.184Similarly the record of Hitler's reference on 24 July 1942 to the emigration of Jews to Madagascar cannot, according to the Defendants, sensibly be taken at face value: the "Madagascar plan" had, on Hitler's own orders, been abandoned long since. Hitler was pretending to be ignorant about the killing of Jews.
5.185Another reason relied on by Irving for his contention that Hitler was unaware of deliberate extermination of Jews being carried out on a massive scale in 1942 is that none of his adjutants or stenographers recalls any mention being made by Hitler of anything of the kind. Irving described the time and trouble he has devoted to tracking down and interviewing those who remain alive and to obtain the papers of those who have not survived. Irving claimed that none of them had any recollection of Hitler discussing concentration camps either generally or individually. The Holocaust was not mentioned.
5.186Evans does not accept that the evidence of the adjutants and secretaries is of any real value. In the first place, Hitler when in company deliberately refrained from talking of the concentration camps and used euphemistic language when talking of the Jews. Moreover Hitler's personal staff had good reason to be cautious in making public statements about what Hitler said in their presence. Moreover, claimed Evans, several of them expressed the view that Hitler was aware of the genocide which was being perpetrated. He named Major (later Lieutenant General) Engel, who recorded in his diaries that Himmler reported to Hitler about the shooting of Jews in Riga and Minsk; von Puttkamer, who impliedly suggested that Hitler kept from his press spokesman the fact that Jews were being exterminated; von Bruckner, who suggested that discussion about the extermination of the Jews was kept by Hitler within a limited circle; Krieger, one of Hitler's stenographers, who was undecided whether Hitler issued orders to exterminate the Jews or gave general orders to others to that effect and Buchholz, who considered that it was possible Hitler had issued such an order and was convinced that the matter was discussed between Himmler and Hitler. Others mentioned by Evans as coming within this category were Linge; Brautigam; Sonnleithner and Schroeder. Evans readily accepted that many of these former Hitler aides are unreliable for one reason or another. The point he sought to make was that, whatever weight is to be attached to the evidence of the adjutants and stenographers, they do not support Irving's claim that Hitler was ignorant of the extermination programme.
 

(x) Himmler minute of 22 September 1942

Introduction

5.187Himmler prepared a handwritten agenda for a meeting he was to have with Hitler on 22 September 1942. Its format and wording were as follows:
  • 1.Emigration of Jews
    • How to proceed further
  • 2. Settlement
    • Lublin
    • Circumstances
    • Lorrainers
    • Gen Gouv.
    • Germans from Bosnia
    • Globus
    • Bessarabia

The Defendants' case

5.188The Defendants' case is that this note, despite its camouflaged language, raises the strong suspicion that Himmler proposed to discuss with Hitler at their meeting the mass annihilation of Jews. The background to the note is that the killing of Jews had (on the Defendants' case) commenced in November 1941 at Chelmno and some months later at Belzec, Sobibor and Treblinka. During the summer of 1942 there was a wish to accelerate the extermination process but it met with resistance. Himmler, who was in overall charge of the programme, needed the support of Hitler.
5.189Evans interpreted the agenda note made by Himmler as meaning that he intended to discuss with Hitler the extermination of Jews (for which auswanderung or "emigration" was a euphemism). Evans interpreted the note in the following way: "Globus" was the nickname of Globocnik, the Lublin Chief of Police to whom, according to the Defendants, was delegated the executive responsibility for both deportation and extermination in the General Government area. Two months earlier, just before the mass killings started at Treblinka, Globocnik had welcomed the order recently issued by Himmler saying that with it "all our most secret wishes are to be fulfilled". Evans interpreted Himmler's agenda note as contemplating the repopulation of Lublin with Lorrainers, Germans and Bessarabians. The Jews were to be deported to make way for them and then executed. That was Globocnik's "most secret wish". The significance of Himmler's note, so the Defendants contend, is that it implicates Hitler in the extermination policy.  
5.190The Defendants allege that Irving glosses over this significant note and perverts its true sense. Indeed at p467 of the 1991 edition of Hitler's War Irving uses it to support his thesis that Himmler did not enlighten Hitler about the true fate of the Jews. He prefaced his reference to Himmler's note of 17 September with these words: "Himmler meanwhile continued to pull the wool over Hitler's eyes". According to the Defendants, there is no evidence that Himmler did any such thing. Evans argued that the euphemistic reference in the note to "emigration of Jews" is not indicative of a wish to keep Hitler in the dark but rather a reflection of the common Nazi practice of camouflaging references to the policy of exterminating Jews. The Defendants contend that it is inconceivable that Himmler should have prepared an agenda for a discussion with Hitler about these matters in the knowledge that Hitler knew nothing about them and with the intention of concealing them from him.

Irving's response

5.191In his evidence Irving accepted that there was possibly something sinister under discussion between Himmler and Hitler. But he argued that there is no reason to suppose that Himmler went into any detail about it. Irving maintained that in Hitler's War he quoted what Himmler's note said and let the readers draw their own conclusions.
5.192However, when cross-examining Evans, Irving advanced the contention that what Himmler was discussing with Hitler was the resettlement of Lublin with ethnic Germans and the removal of the Jews then in Lublin to make way for them. Irving claimed that resettlement of those Jews, rather than their extermination, was the topic under discussion. He contended that Evans's interpretation of the note is speculative and over-adventurous. He agreed that the note proposed the evacuation and repopulation of Lublin. But he maintained that there is no warrant for reading into it that any discussion was intended by Himmler to take place with Hitler about killing the displaced Jewish Lubliners. Indeed, he argued, it was the resettlement of Lublin which was Globocnik's "most secret wish". Evans responded that the deportation of the Lubliner Jews and their execution are so intimately connected that it is impossible to draw a distinction between them.
5.193Irving defended the use of the phrase "pulling the wool over Hitler's eyes" by pointing out that there is no reference on the face of Himmler's the   note to any of the sinister things which (as Irving agreed) were by then in train.

(xi) Himmler's note for his meeting with Hitler on 10 December 1942

Introduction

5.194In accordance with his usual practice, Himmler listed in manuscript the points which he proposed to raise with Hitler at their meeting on 10 December 1942. One of them reads: "Jews in France 600-700,000". Alongside those words there appears a tick. Himmler has also added in manuscript the word "abschaffen". Longerich translated this as "to liquidate". After his meeting with Hitler, Himmler sent a note to Muller, the head of the Gestapo, to the effect that the French Jews should be arrested and deported to a special camp (Sonderlager). At the same time Himmler secured the agreement of Hitler that a camp should be set up for 10,000 well-to-do Jews from France, Hungary and Romania, in conditions "whereby they remain healthy and alive".

Case for the Defendants

5.195The significance of Himmler's agenda, according to the Defendants, when considered in the light of the note to Muller and the setting up of a camp for well-to-do Jews, is that it reveals him discussing with Hitler the liquidation or extermination of large number of French Jews. The contrast between the fate of the French Jews who are to kept healthy and alive and the remainder is obvious, say the Defendants.
5.196The Defendants criticise Irving for his treatment of the note in Hitler's War (1977 edition) where Irving translates abschaffen as "to remove", which the Defendants allege misrepresents the true significance of the note. In the 1991 edition abschaffen is translated as "to extract" and the reference to setting up a camp for well-to-do French Jews has disappeared in order, claim the Defendants, to remove the highly significant contrast between their treatment and that awaiting the deported French Jews.

Irving's response

5.197Irving asserted that there were nowhere near 600,000 Jews in France. He argued that his translation of abschaffen is correct and is consistent with the word abtransportieren which is to be found in the typed version of the note. Irving did not accept the suggestion put to him that abtransportieren was euphemistic language adopted for the official record of the meeting. He   argued that his interpretation of the note is borne out by what in the event happened to the French Jews: they were transported to camps in Germany, where large numbers of them were put to work in the armaments industry.
5.198Irving claimed that his account in the 1977 edition of Hitler's War is accurate. He explained that the reference to the note was deleted from the 1991 edition because it was an abridged edition and part of the text had to be deleted.

(xii) Hitler's meetings with Antonescu and Horthy in April 1943

Introduction

5.199On 12/13 April 1943, Hitler met the military dictator of Romania, Antonescu in order to discuss Romania's position in the war. In the course of their discussion the question of the Jews in Romania was raised.
5.200In 1943 there were in Hungary some 750,000 Jews if not more. The Hungarian government, under the leadership of Admiral Horthy, deported many non-Hungarian Jews over the border into Nazi-controlled territory where most of them were murdered. The Nazis brought pressure to bear on the Hungarians to identify and deport in a similar manner the very considerable number of Jews who remained in Hungary. But the Hungarians were reluctant to comply, preferring to solve their own Jewish question in their own way. A meeting was arranged between Hitler and Horthy: it took place on two separate days, namely16 and 17 April 1943, shortly after Hitler's meeting with Antonescu. The object was to resolve the impasse.
5.201In the result the Hungarian refused to hand over Hungary's Jews. Hungary was subsequently invaded and occupied by the Nazis. Eichmann thereupon organised the forcible deportation of the Jews from Hungary to the General Government. According to the Defendants in June 1944 450,000 Hungarian Jews were murdered at Auschwitz. Irving alleges that the number killed is smaller.

Case for the Defendants

5.202In relation to Hitler's meeting with Antonescu, the Defendants reproach Irving for his omission to mention in either edition of Hitler's War the uncompromising and anti-semitic words used by Hitler on 13 April in reference to the Jews. The minutes record him as having said:  
"Therefore, in contrast to Marshal Antonescu, the Fuhrer took the view that one must proceed against the Jews, the more radically the better. He ... would rather burn all his bridges behind him because the Jewish hatred is so enormously great anyway. In Germany, as a consequence of the clearing up of the Jewish question, one had a united people without opposition at one's disposal ... however, once the way had been embarked on, there was no turning back".
This, say the Defendants, evidences Hitler placing pressure on Antonescu to effect a radical "removal" of Romania's Jews. Yet Irving ignores it altogether in his account of the meeting.
5.203As to the meeting which started three days later between Hitler and Horthy, the Defendants' contention is that the evidence indicates that at the first session, which took place on 16 April and which was attended by amongst others Hitler and Ribbentrop as well as Horthy, Hitler sought to persuade Horthy to agree to the expulsion of the Hungarian Jews. He reassured Horthy that there would be no need to kill them. But Horthy remained unpersuaded.
5.204Accordingly, say the Defendants, at the next session on 17 April Hitler and Ribbentrop expressed themselves more explicitly. The Defendants contend that the language used by Hitler on the second day points unequivocally to Hitler's knowledge of the extermination of Jews in Poland, as does the language used by Ribbentrop in Hitler's presence on that occasion. Minutes of the meeting on 17 April were taken by Dr Paul-Otto Schmidt. They record Ribbentrop saying in the presence of Hitler:
"On Horthy's retort, what should he do with the Jews then, after he had taken pretty well all means of living from them - he surely couldn't beat them to death - the Reich Foreign Minister replied that the Jews must either be annihilated or taken to concentration camps. There was no other way".
Shortly afterwards Hitler himself is recorded as having said:
"If the Jews [in Poland] didn't want to work, they were shot. If they couldn't work, they had to perish. They had to be treated like tuberculosis bacilli, from which a healthy body can be infected. That was not cruel; if one remembered that even innocent natural creatures   like hares and deer had to be killed so that no harm was caused. Why should one spare the beasts who wanted to bring us bolshevism? Nations who did not rid themselves of Jews perished".
The Defendants' case is that these passages are significant in that they afford powerful evidence that Hitler knew of and approved the extermination of Jews. The flavour of Hitler's remarks points towards an intention to exterminate the Hungarian Jews. It is difficult, say the Defendants, to visualise any other reason why the Nazis were so insistent to get their hands on the Hungarian Jews.
5.205The Defendants contend that Irving in Hitler's War uses a variety of discreditable devices to obscure the significance of the minutes and to twist their meaning. They allege that the passage at p509-10 of the 1977 edition of Hitler's War is a "shocking manipulation" of Schmidt's note of the meeting. In the first place, Irving gives as the pretext for the pressure being brought to bear on Horthy by Hitler and Ribbentrop the Warsaw ghetto uprising. But there is no mention of that uprising in the note of the meeting, which, say the Defendants, is unsurprising because it did not take place until three days later (19 April). Irving marginalises the significance of Ribbentrop's remarks in the presence of Hitler by tucking away what he said in a footnote (where Irving seeks to cast doubt on the accuracy of Schmidt's note by quoting Horthy's later draft letter to Hitler of May 7 which refers to the "stamping out" (Ausrottung) of Jewry). Further Irving depicts Hitler as having used the devastation wreaked by Allied bombing to justify a harsher policy towards the Jews, whereas the contemporaneous evidence shows that Hitler regarded the bombing as "irritating but wholly trivial".
5.206But the major criticism directed by the Defendants at Irving's account arises out of the transposition by Irving to the 17 April of a remark made by Hitler in the course of the meeting on 16 April. The Defendants allege that in a similar manner Irving minimises the significance of what Hitler said. After quoting the statement made by Hitler on 17 April which is set out above, Irving adds the following words:
"But they can hardly be murdered or otherwise eliminated", [Horthy] protested. Hitler reassured him: "There is no need for that".
Hitler had indeed used those words but not on 17 April. He spoke those words at the earlier session on 16 April. By the following day the Nazi   attitude had hardened. By transposing to 17 April remarks which Hitler had in fact made on 16 April, so the Defendants say, Irving diluted the uncompromising and brutal language Hitler used on 17 April when exhorting Horthy to kill all Hungary's Jews. Irving was, as he accepted, warned in 1977 that he had made an error about the date when Hitler made this remark. But took no action to correct the error in the 1991 edition.
5.207The Defendants are further critical of Irving for watering down what Hitler did say on 17 April when it came to the 1991 edition of Hitler's War. Irving omitted Hitler statement about having to kill hares and deer; he omitted the question why the "beasts" (ie the Jews) should be spared and he omitted his reference to nations who did not get rid of the Jews perishing. According to the Defendants Irving was guilty of atrocious manipulation of what Hitler said.

Irving's reponse

5.208Irving agreed that in his account in Hitler's War of the meeting which took place between Hitler and Antonescu, he omitted to refer to Hitler's anti-semitic outburst which included the remark that "one must proceed against the Jews, the more radically the better". Irving justified the omission by saying that it adds not one iota to what is already known.
5.209In this connection Irving, in order to rebut the claim that Hitler displayed a vindictive attitude towards the Jews on this (or any other) occasion, drew attention to the willingness of Hitler on occasion to approve some merciful disposal for individual Jews or groups of Jews. Irving instanced the permission given by Hitler for 70,000 Jewish children to leave Romania and travel to Palestine. Longerich agreed that there were times when Hitler exempted certain Jews from deportation or extermination.
5.210In regard to the meeting between Hitler and Horthy, Irving in his response laid stress on what Hitler said at the first session on 16 April, namely that the Jews would not need to be killed. He argued that it was throughout Hitler's position that there was no need to murder the Hungarian Jews, since they could be accommodated in concentration camps as had happened in the case of the Slovakian Jews. Irving argued that, when Hitler is recorded in the minutes of the meeting taken by Hilgruber as having referred to Jews having "vanished" to the East, he was referring to their deportation. Evans's answer to this was that on 16 April Hitler was setting up a smoke-screen and seeking to conceal from Horthy what his true   intentions were. Longerich concurred, adding that Hitler's reference to the Slovakian Jews is significant because (as Hitler must by this time have known) they had been put to death in extermination camps.
5.211Irving did not in his evidence dispute the accuracy of the record made by Schmidt of the meeting on 17 April. Irving argued that the reason why Ribbentrop said what he did is that the Hungarian Jews were posing a security threat: what Ribbentrop was proposing was that, on that account, they should be sent to concentration camps; if they refused (but not otherwise) they would be shot. Evans replied that Irving is perverting and distorting the clear sense of what Ribbentrop said. Irving persisted in his claim that the use of the term "Ausrottung " in Horthy's draft letter to Hitler of 7 May is significant because it contemplates the Jews being forcibly deported rather than killed.
5.212Irving agreed that he wrongly reported Hitler as saying on 17 April what he had in fact said on 16 April. He also agreed that his error had been pointed out to him as long ago as 1977 by the historian Martin Broszat. But he contended that his error as to the date is a matter of no consequence. That, he claimed, is why he did not correct the reference in the 1991 edition of Hitler's War. There was no deliberate misrepresentation or deliberate suppression. Irving asserted that he included in the 1977 edition the substance of what Hitler said about the Jews on 17 April. His explanation for the removal in the 1991 edition of part of what Hitler said is that it was an abridged edition. In any case he considered that the omitted words do not add much.
5.213As regards Hitler's language, Irving drew attention to the fact that the internal record of the meeting kept by the Hungarians (as opposed to the official Nazi minute) made no mention of the deported Hungarian Jews being killed. There would have been no reason for the Hungarians to conceal the fact that they were to be killed, if that had indeed been stated at the meeting to be the intention. If Hitler had said that the Nazis were proposing to kill the Hungarian Jews, one would expect, suggested Irving, the Hungarians' internal record to include a protest at such barbarism.
5.214Irving explained that Hitler was distressed and angry about recent the Allied bombing raids of cities in Germany. That was the reason for Hitler's outburst to Horthy. Evans pointed out that in the 1977 edition of Hitler's War Irving gave a different explanation for Hitler's menacing words, namely   the Warsaw uprising. Another explanation offered by Irving for the words used by Hitler is that he was full of resentment about the massacre at Katyn. All these explanations and excuses are bogus, according to Evans.

(xiii) The deportation and murder of the Roman Jews in October 1943

Introduction

5.215Although this episode is one of those deployed by Evans in his report to substantiate the attack upon Irving's historiography, I will take it shortly because the Defendants did at one stage indicate that they were not intending to rely on it. Irving nevertheless chose to cross-examine Evans about it.
5.216The position in Italy in October 1943 was that Mussolini had been overthrown three months earlier to be replaced by a new Italian government which promptly surrendered to the Allies. The Nazis thereupon invaded Italy. Rome fell to the advancing Nazis. The country in general and Rome is particular were in a state of some administrative confusion. The position in the north of Italy was unstable.
5.217Both the 1977 and 1991 editions of Hitler's War recount how on 6 October 1943 the SS chief in Rome received an order to transfer 12,000 Roman Jews to northern Italy where they would be liquidated. According to Irving's account, the matter was then referred to Hitler's headquarters and the order came back that these Jews were to be taken to a concentration camp in upper Italy named Mauthausen to be held there as hostages, rather than be liquidated as had been ordered by Himmler. Irving argued that this episode reveals Hitler again showing concern for the Jews and striving to ensure that they would be kept alive.

The case for the Defendants

5.218The Defendants' case is that in his account Irving has again manipulated the historical record and misrepresented the effect of Hitler's intervention. According to Evans, Irving achieves this by, firstly, suppressing documents which demonstrate that the background to Hitler's intervention was a dispute whether (as Field Marsahll Kesselring was urging) the Jews should be kept in Rome on fortification work or whether (as Himmler had ordered) they should be sent to the Reich and liquidated. There was strong local feeling in Rome that the Jews should stay there. Evans agreed that the documents show that Hitler directed via Ribbentrop that the Roman Jews were to be taken to Mauthausen as hostages. But their   fate was then to be left in the hands of the SS, that is, effectively in the hands of Reichsfuhrer-SS Himmler. So, Evans contended, far from interceding on behalf of the Jews, the effect of Hitler's intervention was to place these Jews in the murderous hands of the SS. The dispute was thus resolved by Hitler against those like Kesselring who were trying in Rome to save the Jews and in favour of the SS who had already made clear that they intended to kill the Jews when they got their hands on them.
5.219The Roman Jews were transported northwards, not to Mauthausen, but to Auschwitz where they were in due course murdered. According to Evans, the claim that the Jews were to be held at Mauthausen "as hostages" was intended to disguise the fate which the SS had in mind for the Jews in the hope that it would appease the anxious officials in Rome. Hitler knew perfectly well what was going to happen to them. It was in reality no part of Hitler's intention that the Roman Jews should be kept alive. Mauthausen was a notorious concentration camp, where the inmates were systematically worked to death.
5.220Irving, say the Defendants, having unjustifiably praised Hitler for his intercession on behalf of the Jews, compounds the error by suppressing the fact that the Roman Jews were murdered.

Irving's response

5.221The nub of Irving's response is that the order handed down by Hitler meant what it said, namely that the Jews were not to be liquidated as the SS had apparently been intending, but rather that they should be kept alive in Mauthausen for later use as hostages should the need arise. Irving claimed that Hitler did indeed intercede in a manner which was intended by him to preserve the lives of the Roman Jews. He did not accept that Hitler foresaw, still less that he intended, that the SS would send them to their deaths. That the Roman Jews were in the event murdered was a violation of Hitler's express order and contrary to his intention. Irving denied any manipulation of the evidence or suppression in his account of this episode.
 

(xiv) Himmler's speeches on 6 October 1943 and 5 and 24 May 1944

Introduction

5.222On 6 October 1943 Himmler spoke to a gathering of Reichsleiter and Gauleiter. He said:
"I do ask you to keep secret, to listen to what I am saying and never to speak about it, what I am saying in these circles. We came up against the question, what about the women and children, and I took the decision here too for a clear solution. I did not consider myself justified in liquidating just the men to leave alive the children to act as the avengers against our sons and grandchildren. There had to be taken the grave decision to have this people disappear from the face of the earth".
5.223The following year, on 5 May 1944, Himmler spoke to the generals of the Wehrmacht. According to the transcript of his speech he said:
"The Jewish question has been solved within Germany itself and in general within the countries occupied by Germany. It was solved in an uncompromising fashion in accordance with the life and death struggle of our nation in which the existence of our blood is at stake. You can understand how difficult it was for me to carry out this soldierly order (soldatische Befehl) and which I carried out from obedience and from a sense of complete conviction".
5.224Next on 24 May 1944 Himmler spoke to the generals again, saying:
"Another question which was decisive for the inner security of the Reich in Europe was the Jewish question. It was uncompromisingly solved after orders and rational recognition. I believe gentlemen that you know me well enough to know that I am not a bloodthirsty person. I am not a man who takes pleasure or joy when something rough must be done. However, on the other hand I have such good nerves and such a developed sense of duty I could say that much for myself. When I recognise something as necessary, I can implement it without compromise. I have not considered myself entitled, this concerns especially the Jewish women and children, to allow the children to grow into the avengers who will murder our fathers and   grandchildren. That would have been cowardly. Consequently, the question was uncompromisingly resolved".

Defendants' case

5.225The Defendants contend that in all three speeches Himmler is speaking in brutal terms of the murder of the Jews. Irving did not dissent from this. But for present purposes, the primary significance of this trilogy of speeches is that they shed light on the question whether Hitler knew of the killing. As to the first of these speeches the Defendants say that Himmler would not have spoken in such explicit terms if Hitler was unaware of the killings. Himmler would have realised that members of his audience would or might raise the matter with Hitler. In relation to the speech on 5 May 1944 the Defendants contend that the reference to a "soldierly order" must signify that Himmler had taken his order as to the solution to the Jewish problem from Hitler since he is only person in a position to give orders to Himmler. Similarly, in relation to the speech of 24 May, the Defendants assert that the "orders" must connote orders from Hitler. Read together, the Defendants maintain that the terminology of the speeches by Himmler in May 1944 demonstrate Hitler's knowledge of and responsibility for the murders of Jews including women and children.
5.227The Defendants direct particular criticism at Irving for the way in which he deals at p630 of Hitler's War (1977 edition) with the speech of 5 May. He there paraphrases what Himmler in such a way as to conceal the uncompromisingly brutal language used by Himmler. After the reference to Himmler's speech, Irving adds:
"Never before, and never after, did Himmler hint at a Fuhrer order, but there is reason to doubt that he showed this passage to his Fuhrer".
The Defendants reply that it is pure surmise on Irving's part that the relevant passage was not shown to Hitler but it is presented by him to the reader as established fact. They point out that in the 1991 edition the reference to Himmler's speech of 5 May has been omitted altogether. The Defendants maintain that it is an important part of the narrative because it casts light on Hitler's role in the extermination of the Jews. The inescapable inference is that Irving was determined to avoid compromising Hitler.
 
5.228The reader is directed to a footnote in which Irving claims that the page containing the key sentence referring to a military order was "manifestly" retyped and inserted in the transcript at a later date. Irving suggested that this indicates that the version of the speech which was shown to Hitler was sanitised so as to exclude any reference to Himmler having been ordered by Hitler to carry out a bloody solution to the Jewish problem. It is Irving's argument that Himmler did this because he knew very well that Hitler had given him no such order.

Irving's response

5.229Irving accepted that with effect from October 1943 it has to be conceded that Hitler cannot have been ignorant of the extermination programme. But he emphasised that in his speech on 6 October 1943. Himmler spoke of a decision which he, rather than Hitler, had taken. He disputed the contention that the speech of 5 May points towards the existence of a Hitler order. From the facts the transcript of the relevant page of the speech has evidently been typed on a different typewriter and the pagination has been altered, Irving deduced that the document has been tampered with and is accordingly unreliable. He rejected the mundane explanation that Himmler was simply revising what he proposed to say in his speech. Irving further argued that it is to be inferred that the transcript was sanitised before it was submitted to Hitler because Himmler did not want Hitler to know that he (Himmler) was claiming falsely to have been acting on the order of Hitler. As to the speech of 24 May (which Irving suspects has also been tampered with) he argued that the orders referred to could just as well be taken to mean orders given by Himmler to his subordinates.
5.230Irving defended the treatment of these speeches in Hitler's War by saying that he quoted them and left the reader to draw his or her own conclusions. He pointed out that at the meetings between Hitler and Himmler which took place during the summer of 1944 Hitler is reported to be referring still to the expulsion (rather than the extermination) of the Jews. These statements cannot be airily dismissed as camouflage since Hitler had no need to use euphemisms when speaking to Himmler.
 

(xv) Hitler's speech on 26 May 1944

Introduction

5.231Hitler addressed senior officers of the Wehrmacht on 26 May 1944 in the following terms:
"By removing the Jew, I abolished in Germany the possibility to build up a revolutionary core or nucleus. One could naturally say to me: Yes, couldn't you have solved this more simply - or not simply since all other mans would have been more complicated - but more humanely? My dear officers, we are engaged in a life or death struggle. If our opponents win in this struggle, then the German people would be extirpated".

The case for the Defendants

5.232The Defendants maintain that this amounts to an admission by Hitler that had used inhumane means to remove (that is, to kill) the Jews. They contend that Irving obfuscates the true sense of what Hitler was saying at p631 of Hitler's War (1977 edition). Irving there prefaces his quotation from Hitler's speech with the comment that Hitler was speaking "in terms that were both philosophical and less ambiguous". He writes that Hitler was speaking of the reasons why he had "expelled" the Jews. The Defendants argue that by these devices Irving sought to blunt the significance of the reference by Hitler to the "extirpation" of the Jews.

Irving's response

5.234Irving pointed out that it was he who first discovered the text of this speech. He claimed that he quoted it accurately. He agreed that the less humane method of which Hitler spoke may well have been killing. But again he said that he left it to his readers to draw their own conclusions.

(xvi) Ribbentrop's testimony from his cell at Nuremberg

Introduction

5.235In a footnote at p851 of the 1977 edition of Hitler's War Irving quoted a passage extracted from notes made by Ribbentrop when incarcerated in the prison at Nuremberg:  
".. that [Hitler] ordered [the destruction of the Jews] I refuse to believe, because such an act would be wholly incompatible with the picture I always had of him".

The case for the Defendants

5.236The Defendants make no complaint of what Irving did quote from Ribbentrop's notes. But they do criticise him severely for his omission to quote the immediately following passage which reads:
"On the other hand, judging from [Hitler's] Last Will, one must suppose that he at least knew about it, if, in his fanaticism against the Jews, he didn't also order [it]".
The Defendants say that this editing of Ribbentrop's notes is indefensible. They further criticise Irving for not questioning the reliability of Ribbentrop as a source, given his unwavering loyalty to Hitler and his own demonstrably false claim to have been unaware of the fate awaiting the Jews after their deportation.
5.237Further the Defendants allege that Irving has unjustifiably ignored the account by the prison psychologist at Nuremberg, Dr Gilbert, of his conversation with Ribbentrop in which the latter appears to concede that Hitler may have ordered the extermination of the Jews in 1941. Evans asserted that Irving has also ignored the transcript of a conversation in which Ribbentrop tells a British officer how in 1944 he discussed with Hitler the atrocities taking place in the camps.
5.238The consequence of Irving's carefully selected quotation together with his omission of other quotations is that the reader is given a wholly distorted impression of Ribbentrop's view of the knowledge of the Holocaust possessed by Hitler.

Irving's response

5.239Irving agreed that he left out from his citation of Ribbentrop's prison notes the passage which is cited above. He did so because writers have to be selective and avoid writing "pages of sludge". The omitted passage cried out to be cut. It was mere supposition on Ribbentrop's part. Irving disagreed with the suggestion that his account gave a false and unbalanced picture of Ribbentrop's assessment of Hitler's responsibility for the extermination of the Jews. Irving justified his omission of the other statements made by   Ribbentrop about Hitler's knowledge of the extermination of the Jews by saying that none of them is reliable.

(xvii) Marie Vaillant-Couturier

Introduction

5.240Marie Vaillant-Couturier, a gentile and member of the resistance in France, was a prisoner in the womens' camp at Auschwitz from 1942 until the end of the war. In 1946 she gave vivid and detailed evidence to the International Military Tribunal at Nuremberg about the atrocious conditions in the camp, the sterilisation of women, the killing of babies born to women who arrived pregnant and so on. One of the presiding was judges was an American, Judge Biddle.

Case for the Defendants

5.241In relation to Mme Vaillant-Couturier the criticism directed at Irving by van Pelt relates, not to his published work, but to his claim, made on occasions, including a press conference in 1989 to celebrate the English publication of the Leuchter report (with which I shall deal in the section VII relating to Auschwitz), that:
"she gave a heart-breaking testimony about what she had survived and in his diary at the end of the day, Judge Biddle privately wrote 'I don't believe a word of what she is saying, I think she is a bloody liar' ".
Irving made a similar statement earlier, on 13 August 1988, at Toronto, when he claimed that the Judge had written "All this I doubt" (emphasis added).
5.242The Defendants contend that these statements wholly misrepresent the view which the Judge took of Vaillant-Couturier's evidence. The Judge's contemporaneous note of her evidence reveal that he inserted in parentheses the words "This I doubt" at the end of a paragraph in which he noted her claim that all camps had a system of selecting prostitutes for SS officers. That does not appear to have been a claim that she made of her own knowledge. There is no reason whatever, say the Defendants, for supposing that Judge Biddle disbelieved any other aspect of her testimony. The statement made by Irving at the press conference was a disreputable attempt by him to discredit the witness on a basis which, as he must have   appreciated, was utterly untenable. The addition of the word "all" in the Toronto speech was, say the Defendants, deliberate distortion.

Irving's response

5.243Irving did not accept that Judge Biddle's note was referring merely to the passage which I summarised above. He asserted in his closing submission that, when cross-examining her, defence counsel had suggested that she had not even been in Auschwitz. This was not a proposition which Irving put to Evans in cross-examination (and he directed no questions on this topic to van Pelt). Irving argued that Mme Vaillant-Couturier had made some absurd claims in her testimony (for example that there was a man-beating machine at the camp). Irving persisted in his claim that, from what he had read of the Judge's private papers on the testimony given by the various witnesses, he was able to assert that Judge Biddle was making a general comment on her evidence. Irving did not produce whatever papers he was basing this claim upon.
5.244In his evidence he asserted that Judge Biddle "became so fed up with this woman's testimony that he can finally stand it no longer and he dictates in parenthesis into his report - he says 'this I doubt'". But he did agree that what he had said at the launch of the Leuchter report was a "gloss" on the Judge's comment. He excused it by saying, incorrectly, that it was years since he had read the judge's notes. By way of explanation for the fact that he had quoted the Judge as saying 'All this I doubt" when he spoke in Toronto, Irving claimed, firstly, that he added the word 'all' to make it more literate for his audience and later that the Judge had altered the words "This I doubt" to "All this I doubt". He produced no evidence for the latter claim.

(xviii) Kurt Aumeier

Introduction

5.245Kurt Aumeier was for a while Hoss's deputy at Auschwitz. Shortly after the war he was captured and interned by the British. Whilst in captivity he wrote two hundred pages of hand written memoirs about his experiences at the camp. He went into great detail about the manner in which the gas chambers were operated. He described the gassing procedures and referred to the construction of crematorium 3. He was subsequently extradited to Poland, where he was tried, found guilty and hanged. His memoirs did not become available to historians until 1992, when they were read by Irving shortly after their release by the Public Record Office in London.
 

The Defendants' case

5.245The Defendants contend that, despite the existence of a number of inaccuracies in his account, Aumeier is an important and credible witness whose detailed description of Bunkers I and II and the way the gas chambers in crematoria 2 and 4 were operated powerfully supports their case for saying that gas chambers were used on a massive scale at Auschwitz. Through van Pelt and Evans the Defendants allege that Irving recognised the problem Aumeier's memoirs posed for revisionists in relation to the existence gas chambers at Auschwitz. He wrote to Marcellus of the Institute for Historical Research ("the IHR") on 4 June 1942 that "these MSS are going to be a problem for revisionists, and need analysing now in advance of our enemies and answering".
5.246In order to meet the "problem" posed by Aumeier's account, Irving first surmised, without any evidential basis for doing so, that his account had been extracted by brute force on the part of his interrogators. Thereafter, Defendants allege that Irving suppressed the Aumeier material because it powerfully undermined his thesis that there were no gas chambers at Auschwitz. He continued to make speeches denying the Holocaust without mentioning Aumeier's account. Although Irving had read the memoirs in 1992, it was not until May 1996 that Irving informed van Pelt by writing to tell of their existence. Van Pelt observed that the private disclosure of the memoirs to him is a far cry from placing them in the public domain, which is what a reputable and objective historian should and would have done.

Irving's response

5.247Irving agreed that he wrote to Marcellus of the IHR saying that the Aumeier manuscripts were going to be a problem for revisionists and that they needed to be analysed in advance of "our enemies" and answered. What Irving claimed he meant by this was that the memoirs were damaging to the revisionist position. He said that the "enemies" referred to were irresponsible historians who will leap onto any document and inflate it.
5.248Despite what he wrote to the IHR, Irving argued that Aumeier is an unreliable witness. Amongst the errors in his account to which Irving pointed was his claim that during his tenure of office at Auschwitz (which lasted for most of 1942) 15,000 people were killed by gas at Auschwitz. That estimate does not accord with other evidence. In addition many of his dates are confused. Irving maintained his claim that Auemier had been   subjected to maltreatment by his British captors. He identified a British officer who, he claimed, used brute force to compel Aumeier to provide a more detailed and exaggerated account of what he had seen. These were the reasons why Irving confined his reference to Aumeier's evidence in his writings about Auschwitz to a footnote in his book Nuremberg. When it was pointed out to him that he had there referred to Aumeier's testimony as "compelling", Irving explained that he meant it was compelling evidence which needed to be examined. Irving pointed out that the footnote did also make reference to the pressure brought to bear upon Aumeier during his interrogation.
5.249Irving denied the charge of suppression. He said that he drew the attention of various historians to Aumeier's account. In May 1997 he wrote to van Pelt, the acknowledged world expert, telling him of the memoirs but received no reply. (Van Pelt gave evidence that he had not received the letter). He agreed that it was not until the publication of Nuremberg in the same year that he first made public the memoirs. Irving (correctly) dismissed the suggestion made at one stage by the Defendants that this disclosure was made only because their legal advisers had been alerted to the existence of the memoirs because Irving disclosed them in this action.

VI. JUSTIFICATION: EVIDENCE OF THE ATTITUDE OF HITLER TOWARDS THE JEWS AND OF THE EXTENT, IF ANY, OF HIS KNOWLEDGE OF AND RESPONSIBILITY FOR THE EVOLVING POLICY OF EXTERMINATION

Preamble

6.1Apart 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.

Hitler's anti-semitism

The issue between the parties

6.3Irving 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

6.4Longerich 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.

Irving's response

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

Introduction
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
people's commissars
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 wereinstructed 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.
 

Hitler's knowledge

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.

Irving's response
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.
 

Hitler's knowledge

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

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.
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.

VII. AUSCHWITZ

Description of the camp and overview of the principal issue

7.1 Auschwitz is a small town in the region of Upper Silesia in Poland, which was annexed by the Third Reich when Poland fell in 1940. Hitler entrusted Reichsfuhrer-SS Himmler with the task of "Germanising" the annexed territories. His original plan to repopulate with Germans places such as Auschwitz, deporting Poles and Jews to the eastern sector of the General Government to make way for the Germans, proved not to be feasible. So the decision was taken to set up a concentration camp in a suburb of the town.
7.2 The Auschwitz camp area was located in a fork between the River Vistula in the west and the River Sola in the east. Part of the camp area also extended across the River Sola on its eastern bank. Surrounding the camp was an agricultural area which was originally designated to be worked by ethnic German farmers. Within the fork between the two rivers was a zone which extended to some fifteen square miles. All civilians had been deported from this area which was now controlled by the SS. This zone and its surrounding area served many purposes and forms of activity, including an experimental farm, a forced labour pool for the chemical company plant which IG Farben was planning to construct nearby at Monowitz and other industrial concerns. The town of Auschwitz was outside the concentration camp area. It is located on the eastern side of the River Sola. To the east of the town was the IG Farben Buna Factory beside which was the labour camp. The whole area and system of camps is collectively referred to as 'Auschwitz'.
7.3 Within the overall camp was a smaller security area which was surrounded by guard posts. This area contained the two main camps that formed part of Auschwitz. To the eastern side of the River Vistula there was Birkenau (also known as Auschwitz II). This was the principal camp where most of the extermination occurred. Approximately two kilometres to the east of Birkenau, separated from it by a railway corridor, was the smaller   camp known variously as Auschwitz, Auschwitz I or the Stammlager. The headquarters of the camp were situated here. Located at a point along the railway line between Auschwitz and Birkenau was the ramp at which trains transporting Jews would halted. Later a spur was built, linking Birkenau to the railway and providing a further terminus.
7.4 Auschwitz fell within the jurisdiction of Himmler, who was in overall charge of the establishment and running of concentration camps. Heydrich, Chief of the Security Police and the SD and Head of the RSHA, reported directly to Himmler. Eichmann, who worked within the RSHA, also reported to Himmler, was entrusted in 1941 with responsibility for the carrying out and co-ordinating of the Final Solution. SS Obergruppenfuhrer Oswald Pohl was Head of the Economic and Administrative Office of the SS which had executive responsibility for the running of the labour camps. SS Hauptsturmbannfuhrer Rudolf Hoss was installed as Camp Commandant of Auschwitz in May 1941 and continued in a leading capacity throughout the period when, on the Defendants' case most of the gassings took place (with the exception of a period in 1943-4 when he was posted to Berlin to work in the Concentration Camp Inspectorate). The camp was manned by the SS. But the assistance of Jewish inmates was enlisted to perform some of the more grisly tasks in the crematoria. They were called Sonderkommando. About 200 worked in each cremaorium. They were housed either in the crematoria where they worked or in special barracks. At periodic intervals, many of the Sonderkommando were themselves gassed and replaced by other inmates.
7.5 It is common ground that from the autumn of 1941 large numbers of Jews were deported to Auschwitz from Germany and from the eleven other countries which had been occupied or formed part of Nazi controlled Europe. The overall question which I have to decide is whether the available evidence, considered in its totality, would convince any objective and reasonable historian that Auschwitz was not merely one of the many concentration or labour camps established by the Nazi regime but that it also served as a death or extermination camp, where hundreds of thousands of Jews were systematically put to death in gas chambers over the period from late 1941 until 1944.
 

The case for the Defendants in summary

7.6 Auschwitz was not, on the Defendants' case, either the first or by any means the only extermination camp where gas chambers were employed to kill Jews. However, according to the Defendants, the evidence establishes that more more deaths occurred at Auschwitz than in all the other extermination camps put together. The case advanced by the Defendants can by simply summarised: they contend that there is a substantial body of evidence, from a variety of different sources, which should demonstrate to any fair-minded objective commentator that gas chambers were constructed at Auschwitz and that they were used to extermination Jews on a massive scale. This case rests upon what the Defendants contend is abundant evidence, both contemporaneous and more recent, which amounts to convincing proof that Auschwitz played a pivotal role in the Nazi scheme to exterminate European Jewry. It is the Defendants' case that in the period from late 1941 to 1944, when the gas chambers were dismantled, approximately one million Jews were murdered by the use of gas at the camp.
7.7 The Defendants allege that, if Irving had approached the evidence in a detached and objective manner, he could not have failed to appreciate that the evidence is overwhelming that the gas chambers at Auschwitz were systematically used to kill Jews. In arriving at an answer to this question, the Defendants submit that it is relevant to bear in mind the concessions that Irving has already made as to the fact, scale and systematic nature of, firstly, the killing of the Jews in the East by shooting and, secondly, the gassing of Jews from Poland and from Europe in the Reinhard death camps. The Defendants maintain that Irving's denial of the genocidal use of the gas chambers, often expressed in the most intemperate language, flies in the face of the evidence and is explicable only on the basis that Irving is driven by his own extremist ideological views. Moreover the Defendants point out that Irving's denial appears to have been prompted, almost overnight, by his reading the Leuchter report, which, say the Defendants, is deeply flawed from both a scientific and an historical point of view.

Irving's case in summary

7.8 As it was originally formulated, the case advanced by Irving was that no convincing evidence exists that gas chambers were at the material time in existence at Auschwitz and that there is no evidence that such chambers   were commissioned. Further, said Irving, there is no convincing evidence that any Jew at Auschwitz lost his or her life as a result of being gassed (though he conceded from the outset that many died as a result of the epidemics which, due to the appalling lack of hygiene, regularly swept the camp).
7.9 The reason why Irving originally adopted that stance was that he was enormously impressed by a report compiled in 1988 by a Mr Fred Leuchter, described by Irving as a professional consultant who routinely advised penitentiaries on electric chair and gas-chamber execution procedures. His report entitled "An Engineering Report on the Alleged Execution Gas Chambers at Auschwitz, Birkenau and Majdanek Poland" concluded that no gas chambers operated at Auschwitz. Irving regarded that report as an important historical document and he adopted its major conclusions. He contended that subsequent tests had replicated the results obtained by Leuchter.
7.10 At this trial Irving appeared to place less reliance on the Leuchter report than he had done in his written statement of case. He advanced a variety of arguments for discrediting the evidence relied on by the Defendants. He relied heavily on the argument that the roof of morgue 1 at crematorium 2 (which is where on the Defendants' case in excess of 500,000 Jews were gassed to death) shows no sign of the wire-mesh columns through which the Defendants maintain that the gas was introduced into the chamber below.
7.11 In the course of the trial Irving modified his position: he was prepared to concede that gassing of human beings had taken place at Auschwitz but on a limited scale. However, he continued to assert that it was not a death factory (totesfabrik). He maintained that there is certainly no question of 500,000 Jews having perished in morgue 1 of crematorium 2 as the Defendants contend.
7.12 In support of his modified denial that Jews were put to death in the gas chambers on any significant scale, Irving relied on the fact that in all the surviving contemporaneous archival and other documentary records of the Third Reich, there is no reference to the commissioning, construction or operation of the gas chambers. He emphasised that amongst the voluminous documentary material relating to Auschwitz, there is only one document which contains what might be regarded as a reference to the genocidal use of the crematoria. Irving argues that the lack of (as he put it) incriminating   documents is extraordinary, if indeed gas chambers were in operation on the scale alleged by the Defendants.
7.13 Amongst the arguments advanced by Irving in support of his case that killing by gas took place at the camp on no more than a limited scale was the fact that the top-secret daily reports sent from the camp to Berlin in cypher, which purport to record the numbers of inmates, arrivals and 'departures by any means', including deaths, make no mention of any inmate having been gassed, although they contain many references to deaths from illness, by shootings and hangings. The number of deaths recorded in these reports is far smaller than the number of those who, on the Defendants' case, lost their lives in the gas chambers. Moreover, asked Irving, if so many were led to their deaths in the gas chambers, what has become of the cadavers. Why, Irving continued, should Eichmann, whose diaries were remarkably frank in regard to the killing of Jews, omit to mention gas chambers when recording his visit to Auschwitz in early 1942.
7.14 According to Irving the evidence simply fails to establish that Jews were killed in gas chambers at Auschwitz on anything approaching the scale claimed by the Defendants.

The evidence relied on by the Defendants as demonstrating that gas chambers were constructed at Auschwitz and operated there to kill a vast number of Jews

7.15 It is therefore necessary to consider with care what is the nature of the evidence relied on by the Defendants. It is contained principally in the expert report prepared by van Pelt. Longerich and Evans also deal in their reports with certain aspects of this topic. The evidence comes, as I have said, from a variety of sources. Since it is the case for the Defendants that it is the totality of that evidence which amounts to convincing proof of the mass extermination of Jews by gas, it is necessary for me to attempt to summarise it by category.

Early reports

7.16 As early as November 1941 reports had begun to emerge of a violent camp at Oswiecim (that is, Auschwitz) and another camp nearby where poison gas was being used on an experimental basis. But for the most part the early reports mentioned Belzec, Treblinka and Sobibor rather than Auschwitz. However, in March 1943 a radio message to London from Polish   resistance sources reported the gassing of more than 500,000 at Oswiecim. There were other reports in the course of 1944 to similar effect. But none of them attracted much attention at the time. Other reports mentioned Birkenau but its connection with Auschwitz does not appear to have been appreciated. Cypher reports from Auschwitz (and other camps) to Berlin were being intercepted by British intelligence at Bletchley but (as will be seen) these made no mention of deaths by gassing.
7.17 In mid-1944 two young Slovak Jews, named Rudolf Vrba and Alfred Wetzlar, who had escaped from Auschwitz, gave accounts of the systematic extermination of Jews at Birkenau (ie Auschwitz II), commencing in the summer of 1942 and involving the use of specially-constructed gas chambers and crematoria. This account was circulated to London and Washington. Another corroborative account, from a Polish gentile, Jerzy Tabeau, who had also escaped from the camp, also appeared. In June and July 1944 there was publicity in the New York Times about the mass killing of Jews by gassing at Auschwitz.

Evidence gathered by the investigation under the aegis of the Soviet State Extraordinary Commission

7.18 The early reports referred to above tallied with the findings of a joint Polish-Soviet commission set up to investigate events at Majdanek, another extermination camp at Lublin in the General Government which had fallen into Russian hands in July 1944. Auschwitz itself was liberated on 27th January 1945 by the advancing Russian army. The Russians found a total of 7,500 inmates. Some 60,000 inmates had been forced to march west a week earlier. Large quantities of shoes, suits, clothes, toothbrushes, glasses, false teeth, hair and other personal effects were found in storage barracks.
7.19 A Soviet State Extraordinary Commission was set up to investigate what had occurred at the camp. On 6 May 1945 it issued its findings. It concluded, on the basis of evidence from inmates, Nazi documents found at the camp and an inspection of the remains of the crematoria, that more than four million people had been annihilated at the camp. The Commission concluded that gas chambers had been used to kill people at the camp and their remains had been incinerated in crematoria. The Commission also reported that the zinc covers used in connection with the ventilation system had been tested in a forensic laboratory. Hydrocyanide was found to be present.
 
7.20 Although the archive of the camp Kommandantur had been destroyed by the Nazis, the archive of the Central Construction Office survived, apparently by an oversight, and was recovered by the Russians. Basing himself on the blueprints for the construction and adaptation of the crematoria and morgues and on visits made to the site, a Polish specialist in combustion technology named Davidowski compiled a report on the technology of mass extermination employed at Auschwitz. He noted that terms such as Spezialeinrichtungen (special installations) were used in the documents to describe the crematoria and that there was a reference to a Vergasungskeller (gassing cellar).
7.21 In his evidence van Pelt did, however, concede that the evidential value of the Russian report is limited.

Evidence gathered by the Polish Central Commission for Investigation of German Crimes in Poland 1945-7

7.22 In 1945 the forensic laboratory in Cracow carried out an analysis of, firstly, zinc covers removed from the alleged gas chambers at Birkenau and, secondly, 25.5kg of human hair recovered from the camp. Both were found to contain traces of cyanide. The Defendants point to this as further evidence of the use of the chambers to kill Jews.

The Olere drawings

7.23 David Olere was a painter, who was born in Warsaw and later moved to Paris, where he was arrested and deported to Auschwitz in March 1943. He worked in the Sonderkommando for Crematorium 3. He lived in the attic of Crematorium 3 and observed the building and related activity. After his liberation he returned to Paris where he began to draw and record his memories. He produced over fifty sketches in 1945-46.
7.24 Among the sketches Olere produced were architectural drawings of Crematorium 3 which show the basement level with the underground dressing room and the gas chamber, and the ground floor with the incineration room the ovens and the chimney. Arrows indicate the functional relationship of the rooms. They show how people were directed to the gas chamber; how bodies were moved to the corpse elevator; how they were taken to the incineration room and how coke was brought to the ovens in the incineration room.
7.25 In his drawings of Crematorium 3 and its environs Olere depicted people filing into the compound from the road and moving into the dressing   room. A sketch from 1946 shows the dressing room, the benches and the hooks for clothes. Another sketch shows the Sonderkommandos collecting gold teeth and hair from the women. One of the wire mesh columns is visible in the background. Van Pelt commented that the information in these drawings is corroborated by the testimony of Tauber (see below). He also pointed out that none of the drawings could have been made on the basis of published material as there was not any available at the time.
7.26 Other sketches by Olere show Bunker 2, which was a peasant cottage converted into a gas chamber. Van Pelt noted that the undressing barrack is correctly positioned vis-à-vis the cottage. He pointed out the small window with the heavy wooden shutter through which Zyklon-B was introduced. Another sketch portrays the murder of women and children with Crematorium 5 in the background. Van Pelt claimed the representation of the crematorium to be architecturally correct save for minor inaccuracies which can be ascribed to the fact it was drawn from memory.
7.27 Van Pelt noted that Olere's sketches are corroborated by plans that the Russians found in the Central Construction Office, save that Olere depicts vertical wire mesh columns in the gas chamber (through which the Defendants allege that Zyklon-B was inserted) which are not to be found in the original architectural plans for the site. Olere's arrangement has the mesh columns attached to the west side of the first and fifth structural columns and on the east side of the third and seventh structural columns in the gas chamber.

Eye-witness evidence from camp officials and employees

7.28 In his report van Pelt identified a number of those employed at Auschwitz in various capacities who have given accounts of the use of gas at the camp.
7.29 The principal of these Rudolf Hoss, the Auschwitz Kommandant, was captured by the British on 11th March 1946. In the course of his interrogation at Nuremberg Hoss produced a detailed list of the numbers of people transported to Auschwitz from various countries in Europe. The list totalled well over one million. When asked how so large a number could be accommodated at the camp, given that Hoss had said that there were facilities for only 130,000 at the camp, Hoss answered that most of those transported to the camp were taken there to be exterminated. Hoss later swore an affidavit in which he admitted that he had overseen the extermination, by gassing and burning, of at least two and a half million   people. He stated that Zyklon-B was dropped into the death chamber through a small opening. It took from 3 to 15 minutes to kill those in the chamber. After half an hour the bodies were removed. Sonderkommandos or Special commandos removed their rings and extracted the gold from their teeth. Hoss described the process by which those to be gassed were selected. He stated that attempts were made to deceive the victims that they were going to be deloused. He said that the gas chambers were capable of accommodating 2,000 people at one time. Dr Gustav Gilbert, the Nuremberg prison psychologist, recorded in his diary an account of a conversation with Hoss in which he confirmed that two and a half million people had been exterminated under his direction.
7.30 Dr Johann Paul Kremer worked as a physician at Auschwitz from August to November 1942. He kept a diary in which he recorded evidence of activities of what had taken place at Auschwitz. He recorded being present at a "special action" by comparison with which "Dante's inferno seems almost a comedy". The diary contains an entry that Auschwitz is justly called an extermination camp. Prior to his trial before the Supreme National Tribunal in Cracow in November and December 1947 Kremer was interrogated. He admitted that he had taken part in gassing people on several occasions in September and October 1942. He too described the selection process, after which the selected victims were required to undress before being lead into the gas chamber. He described how an SS man threw the contents of a Zyklon tin through a side opening. He mentioned an occasion when about 1,600 Dutch people were gassed.
7.31 Pery Broad was an officer in the Auschwitz Political Department. He voluntarily wrote a report of his activities whilst working for the British as a translator in a prisoner-of-war camp after the war. Broad's report corroborates Dragon's account of the extermination installations and of the burning of the corpses. He described how the area surrounding the crematorium was kept closed. The Jews arrived in columns. They were told they were going to be disinfected. After they entered the chamber, the door was bolted. The contents of tins of Zyklon-B were thrown into the chamber through six holes in the roof. The screaming of the victims quickly ceased and was followed by complete silence. Broad gave evidence of how bodies were removed and burnt after they had been gassed. In addition Broad reported that the reason for building the four new crematoria in Birkenau was that the Nazis were finding it difficult to keep the killings at Bunkers 1 and 2 a secret. In the two underground gas chambers 4,000 people could be   killed at a time. He described the layout of the new installation, including the ovens, each of which he said was equipped to hold four or five corpses.
7.32 SS-Hauptsturmfuhrer (Captain) Hans Aumeier became the Lagerfuhrer (Camp Leader) of Auschwitz in 1942 and was responsible for the inmate compound of the concentration camp. He remained in that job until the end of the year and so, according to van Pelt, was present during the transformation of Auschwitz into an extermination camp. Arrested shortly after the end of the war, he claimed that during his time at the camp 3,000-3,500 prisoners died there. Initially he denied the existence of gas chambers. But later, in the summer of 1945, he admitted that gas chambers had been in operation in Auschwitz and that on many occasions they had been used for killing Jews. He stated that everyone was sworn to secrecy. (In a later statement he added that there was a Reichsfuhrer-SS order which banned written reports, counts and statistics of the activities). He described the initial gas chambers in Bunkers 1 and 2 at Birkenau, where, he said, each chamber accommodated 50-150 people. He gave a further account of the construction of crematorium 2 and crematorium 3 and their gas chambers which had a much larger capacity and began operating in April and May 1943 respectively.
7.33 Dr Ada Bimko, a Polish-Jewish physician, arrived at Auschwitz in August 1943 with 5,000 other Jews. According to her account, of these 4,500, including her close relatives, were sent straight to the crematoria. She later described to a British Military Tribunal the methods of selecting those who were to be gassed. She said that she had worked as a doctor in the hospital at the camp. She gave evidence that she was present at several selections of those who were to be exterminated. She stated that the condemned women were ordered to undress. She had not witnessed the victims enter the buildings. But she stated that she had seen one of the gas chambers when she was sent to recover hospital blankets used by those about to be killed. She described in some detail the chamber which had rows of sprays all over the ceiling but no drains.
 

Eye-witness evidence from inmates at Auschwitz

7.34 Over the years a large number of Jews who were, or at least claimed that they were, imprisoned at Auschwitz have given accounts of their experiences. The quality of their evidence is variable. Van Pelt explained that he placed greater reliance on those eye-witnesses who provided their accounts of what transpired at Auschwitz shortly after the war ended. Later accounts were vulnerable to the charge that the witness had become confused by the passage of time or had been influenced by what others had claimed. The witnesses upon whose accounts van Pelt was inclined to place reliance included the following.
7.35 Vrba, as already stated above escaped from Auschwitz and was one of the first to provide an account of the mass killing at the camp. On that account he is regarded by van Pelt as a significant witness. Vrba did not himself enter any of the gas chambers; he passed on what others had told him. But, as administrator of the sick barrack, he knew about the selection process. He described how those selected were loaded onto trucks and claimed that they were taken away to be gassed. He gave an account of the inauguration at Birkenau at the end of February 1943 of a new crematorium and gassing plant. He stated that there were four crematoria in operation. He described in some detail (albeit, as van Pelt accepted, at second hand) the layout of the interior.
7.36 Sonderkommando Salmen Gradowski kept a diary of his experiences at the camp which he buried in an aluminium can. Schlomo Dragon remembered where it was buried. Remarkably the can and its contents were found intact and dug up after the liberation of the camp. The can contained a notebook and a letter dated 6th September 1944. In the letter Gradowski explained that it was his aim to preserve a written account of what had happened at Auschwitz. He wrote that this task became even more important once the Nazis started to burn the bodies of those they had killed and to dispose of the ashes in the River Vistula. He said that he and fellow Sonderkommandos had scattered the teeth of the dead over a wide area so that they might be found by subsequent generations. Gradowski claimed that the Jewish nation had been destroyed in the camps. He recorded that he and fellow camp workers had planned a mutiny. (The uprising took place in October 1944. It failed and Gradowski was tortured and killed). In his notebook Gradowski described his journey by train to the camp and the selection process on arrival. He gave an account of the living conditions for   those deemed fit for work. That notebook did not contain descriptions of the work of the Sonderkommandos.
7.37 On 10 April 1945 Radio Luxembourg broadcast the account of an unnamed survivor of Auschwitz, who had subsequently been evacuated to Buchenwald. In the interview this witness stated that Auschwitz was an extermination camp which killed between 12,000 and 20,000 people a day. He described how the transports arrived, how the selection took place, and how those who were chosen to die were killed instantly and cremated.
7.38 Stanislaw Jankowksi gave evidence to the Polish Central Commission in 1946. He was the first Sonderkommando to testify before the Commission. He said that he worked in Crematorium 1 from November 1942 at which time it was only used sporadically for killing people. He described an occasion in November or December 1942 when a large number of inmates from Birkenau arrived under escort. He and the other Sonderkommandos were ordered to leave. When they returned they found only clothing. He was put to work carrying the corpses to the crematorium for burning. In July 1943 Jankowski was transferred to Birkenau and worked at Crematorium 5. He described how large number of Jews of various nationalities arrived at the camp. About half of them were selected for gassing, including the old and infirm and the pregnant and children. He stated that those who were to be gassed were not given camp numbers or registered at the camp. His evidence was that the killing reached its zenith with the Hungarian Jews in about July 1944 when, he claimed, 18,000 were being killed per day. Jankowski reckoned that Crematoria 2 and 3 had a daily incineration capacity of 2,500 corpses while Crematoria 4 and 5 could incinerate 1,500.
7.39 Schlomo Dragon, another Sonderkommando, gave evidence on 10 May 1945 to the Polish Central Commission. Dragon had worked at bunker 2 and crematoria 4 and 5. Van Pelt commented that, while Dragon was precise when he talked about what he has witnessed in person, he was less accurate when it came to estimating the number of people killed in Auschwitz, which he put at four million.
7.40 Sonderkommando Henry Tauber worked initially in crematorium 1 and later at crematoria 2 and 4. He also gave evidence to the Polish Central Commission. He gave a detailed account of the undressing rooms at the gas chamber, the signs which hung on the walls, the glass peep-hole in the door   and how the doors were hermetically sealed. Further, he described the ventilation systems; how the floor of a gas chamber was to be washed and how the chamber in crematorium 2 was split into two in late 1943 by a dividing wall. He gave an exceedingly detailed account of the operation of crematoria, making it clear what he accepted on the basis of his own observations and what he accepted as hearsay. He described dragging gassed corpses from the gas chamber and loading them five at a time onto trucks which ran on rails to the furnaces where they were off-loaded. He described the three, two-muffle furnaces and said that each muffle would take five corpses. The incineration took up to one and a half hours. He explained that thin people burned more slowly than fat people. In summary his description of crematoria 2, both below and above ground corresponded very closely with the outline given in the blueprints. Van Pelt considered that Tauber's testimony is almost wholly corroborated by the German blueprints of the buildings and that it corroborates the accounts given by Jankowski and Dragon. Tauber estimated that the number of people who were gassed during his time at Auschwitz, between February 1943 and October 1944, was two million people from which figure he extrapolated that the total number gassed at Auschwitz amounted to four million.
7.41 Michael Kula was another former inmate of the camp who gave evidence to the Polish Commission. He had lived near Auschwitz before his incarceration. Kula gave evidence that, a year after his arrival at the camp in 1940, he observed the Nazis beginning to experiment with Zyklon B. He observed that the corpses turned greenish after exposure to the gas. Kula worked in the metal workshop at the camp and forged many of the metal pieces required for the crematoria. He also took part in the construction of trucks for conveying corpses into the ovens. Kula testified that four wire mesh columns were made for the gas chambers in crematoria 2 and 3: these columns were described by Kula as "structures of ever finer mesh", which contained a removable can within the innermost column which was used to extract, after the gassing, the Zyklon "crystals" or pellets that had absorbed the hydrocyanide.
7.42 Marie Claude Vaillant-Couturier (to whom I have referred at section V(xviii) above in connection with the Defendants' criticisms of Irving's historiography) gave evidence to the International Military Tribunal of the conditions in the women's camp at Birkenau, including the sterilisation of women and the killing of babies of women who had arrived pregnant. She claimed that most of the Jewish women who had come from the same part of   France as herself had been gassed immediately upon arrival at Auschwitz. Valliant-Couturier testified that the trains stopped close to the gas chamber; that the vast majority of the arriving Jews, including the old, mothers and children) would be selected for gassing; that they were made to undress and then taken to a room like a shower room into which gas capsules were thrown through an opening in the ceiling.
7.43 Severina Shmaglevskaya, a Polish inmate at Auschwitz, gave evidence she had seen many children brought to the camp. She had seen selections undertaken on some occasions by doctors and on others by SS men. She recalled that children were separated from their parents and taken off separately to the gas chambers. She stated that, at the time when the greatest number of Jews were being exterminated in the gas chambers, children were thrown alive into crematory ovens or ditches. She said that few of the children were registered, tattooed or counted. They were exterminated on arrival. As a consequence it was very difficult to know how many of the children were put to death.
7.44 Filip Muller, a Sonderkommando, gave an account in the 1970s of the process used to insert corpses into the ovens at crematorium 1. He described how trucks were used to transport the bodies to the ovens, how corpses were put into the ovens and the technical details involved in problems that arose during the process. Van Pelt pointed out that Muller's account accords with those of Jankowski, Tauber and Dragon. He considered that it is highly unlikely that Muller's memoirs were inspired by Tauber's testimony.
7.45 Janda Weiss, aged only fifteen years, was interviewed in 1945 by representatives of the Psychological Warfare Division of the Supreme Headquarters Allied Expeditionary Forces. She told them that she had been deported to Birkenau along with 1,500 Jews from Theresienstadt. She described how she was among the stronger ones who were selected to work in the camp. The rest of her family were taken off to be gassed. Weiss recalled her conversations with those who worked in the camps. She knew of the arrival of the Hungarian transports in 1944. She claimed that when transports arrived most of the Jews were selected to be gassed immediately. Having been told they were to have a shower, the victims undressed and went into the gas chamber. She recalled that when the room was full, small children were thrown into the chamber through the window. After the gassing Sonderkommandos pulled the corpses out took their rings off, cut off their hair, and took them to the ovens to cremate them.
 
7.46 Walter Bliss, a German Jew, was also interviewed. He too described the selection process which took place not only on arrival at the camp but also at regular intervals thereafter. He gave an account of a typical selection process: those selected for death were transferred to gassing barracks where might be kept for up to two or three days often without food as they were going to die anyway. He claimed that 40% of the men in the camp and 60-70% of the women were murdered in January 1944.

Evidence from the Nuremberg trial

7.47 By an accord signed on the 8th> August 1945 the Allies established the International Military Tribunal (at Nuremberg) to prosecute war criminals. Twenty two leaders of the Third Reich were charged. One of them was Kaltenbrunner, who was chief of the agency charged with carrying out the Final Solution. Others who gave evidence at Nuremberg have already been referred above, including Vaillant-Couturier, Shmaglevskaya and Hoss. The Defendants rely in addition on the evidence of the following.
7.48 In January 1946 Dieter Wisliceny, who had been an aide to Eichmann, gave evidence in which he accepted his involvement in preparations for the transport to Auschwitz of some 50,000 Saloniki Jews who, he agreed, were destined for the 'so-called final solution'. He also gave evidence that he had been involved in the deportation of 450,000 Hungarian Jews to Auschwitz. In respect of the latter Wisliceny stated that they were all killed with the exception of those used for labour purposes.
7.49 SS-Standartenfuhrer Kurt Becher swore an affidavit which was submitted in March 1946 at Nuremberg. He described how people were exterminated by methods including gas at Majdanek. He deposed that, within days of an English newspaper report being received at Hitler's headquarters about gas chambers being used at Majdanek, Himmler ordered the cessation of gassing in Auschwitz and the dismantling of the extermination installations in the crematoria.

Evidence from the Eichmann trial

7.50 One of the witnesses at the trial of Eichmann was Hoss, to whom I have already made reference.
7.51 Another was Yehuda Bakon, an Israeli artist, who at Auschwitz had been employed to take papers to the crematoria for burning. Consequently he had entered the crematoria and had seen the gas chamber. In the summer   of 1945 he drew illustrations of Auschwitz which he produced in the course of his evidence. The drawings depicted the inside of gas chambers, including the dummy shower heads and the mesh columns used to insert the Zyklon-B into the gas chamber. He also described how the gas chambers were ventilated after the gassings. Bakon's evidence included a description of how the corpses were put on to a lift which raised them up to the incinerators. Van Pelt relied on the evidence of Bakon that, when it was cold the head of the Sonderkommando would let them warm up in the gas chambers and undressing rooms when they were not in use. He argues that this evidence refute Leuchter's contention that the temperature in the gas chambers was so low that there would have been condensed liquid hydrogen cyanide on the walls had it been used.

Evidence from other trials (Kremer; Mulka and others; Dejaco and Ertl)

7.52 Josef Kramer was a defendant in Belsen trial of the SS personnel who operated Bergen-Belsen. He had also served as Lagerfuhrer of Birkenau during the time that Hungarians were being transported to Auschwitz. Like many camp personnel on trial Kramer had worked at Auschwitz before being transferred to Belsen. At the trial he admitted to his involvement in the operation and use of gas chambers at Auschwitz. He stated that Hoss was in charge of the gas chambers and that he received his orders from Berlin. Mrs Rosina Kramer also testified on behalf of her husband. She states that everyone in Auschwitz knew about the gas chambers.
7.53 At Kramer's trial Bimko, the Polish-Jewish physician, gave the evidence to which I have already alluded.
7.54 Dr Charles Bendel, a Rumanian Jewish physician who had been living in Paris before he was deported to Auschwitz, gave evidence that he had been detailed to work as a sonderkommando and in that capacity observed the gas chambers and crematoria in action. He testified that on occasion the Nazis would burn corpses in pits because the ovens could not cope with the number of people who had been killed.
7.55 Defendants at the Belsen trial inlcluded Dr Fritz Klein, an ethnic German from Rumania, who was a member of the SS. As a physician he admitted having taken part in many of the selections of those who were to be gassed. He claimed that he was acting on orders which were always given verbally. Another defendant at the Belsen trial was Franz Hoessler, who had been Lagerfuhrer at Auschwitz. In his evidence he admitted that gas chambers operated there. He stated that the selection of prisoners who were   to be killed was undertaken by the doctors in the camp. He testified that the camp was inspected once a year by Himmler, who had given the order for people to be gassed.
7.56 Mulka, a member of Hess's staff, and others stood trial at Frankfurt in 1963-5. Hans Stark, a former SS officer, gave evidence that he had been employed in the Auschwitz Political Department. He described the role of the Department in relation to executions by gassing. He admitted to participation in gassings including on occasion pouring the Zyklon B in himself.
7.57 Walther Dejaco and Fritz Ertl were architects at Auschwitz. They were tried in Vienna in 1972. Ertl gave evidence that he had been employed at the Auschwitz Central Construction Office until 1943. He testified that new crematoria had been needed for "special actions". He confirmed that he knew the significance of that term. He said he had been told by Bischoff that no reference should be made to gassing.

Documentary evidence relating to the design and construction of the chambers

7.58 The Defendants assert that there exist contemporaneous documentary records which, on detailed examination, evidence the construction of gas chambers at Auschwitz. The most important Auschwitz archive that survived the war was that of the Central Construction Office at Auschwitz. The main archives of the camp Kommandantur had been destroyed by the Germans before they evacuated the camp in January 1945. The Construction Office was 300 yards away and through an oversight was left intact.
7.59 The first and most significant body of such evidence is the blue print material, which consists of a series of architectural drawings which depict the adaptation of crematoria 2 and 3 and the construction of crematoria 4 and 5. None of these drawings refers overtly to any part of the buildings being designed or intended to serve as gas chambers whether for fumigation or extermination purposes. In particular the drawings for Leichenkeller (morgue) 1 in crematorium 2 make no provision for ducts or chimneys by means of which Zyklon-B pellets might be inserted through the roof. However, van Pelt sought to illustrate by means of detailed analyses of certain features of the drawings that it reasonable to infer that certain chambers were designed to function as gas chambers.
 
7.60 The principal feature identified by van Pelt is the redesign of the double door to the supposed gas chamber in crematorium 2. When in 1942 the drawings were executed for the adaptation of this crematorium, this door in common with others in the same building was designed to open inwards. Careful scrutiny of the drawings reveals, however, that the drawing of the inward- opening door has been scratched out. A fresh drawing dated 19 December 1942 was made by Jakob, the chief of the drawing office, who rarely undertook drawings himself. It provides for the door to the supposed gas chamber to open outwards. There is no apparent reason for this. To van Pelt the obvious explanation is that the chamber was to be used as a gas chamber. If the door opened inwards, it would be impossible to open it after the administration of the gas because of the crush of corpses against the inside or the door of those who struggled to get out when they realised what was happening to them.
7.61 The next feature identified by van Pelt relates to the entrance to crematorium 2 and the means of which access was gained to the morgue below. In its original design, the entrance was situated to one side of the building. Inside the entrance there was a slide down which corpses would be tipped to reach the level of the morgue. But the drawing shows that this design was changed in late 1942 so as to move the entrance to the crematorium to the street side of the building. At the same time a new stairway to the morgue was designed to replace the pre-existing slide. Van Pelt pointed out that the original design apparently contemplated that only corpses would need to be transported down to the morgue. The new design on the other hand is consistent with a wish to enable people transported to Auschwitz to proceed from the railway station through the new entrance, then to walk downstairs into what is alleged to have been the undressing room and thence into the supposed gas chamber. The stairway has been redesigned in such a way that it would be extremely awkward to carry corpses down to the morgue on stretchers. Van Pelt concludes that the object of the redesign of the stairway was to enable living people to walk downstairs rather than for corpses to be carried down.
7.62 The drawings further provide for the ventilation of the supposed gas chamber in crematorium 2. Van Pelt infers that the purpose of the system for extracting air was to extract poisonous air and so speed up the removal of the corpses to the incinerators.
 
7.63 Crematoria 4 and 5 were new buildings. The initial drawings are dated August 1942, not long after the visit paid to the camp by Himmler, which the Defendants say marks the inception of the accelerated extermination programme. According to van Pelt the design of these crematoria incorporated undressing rooms (although not so designated on the drawings) and morgues which were to serve as gas chambers. The drawings of the morgues make provision for several windows measuring 30 x 40cms. The size of these windows corresponds with the size of windows referred to elsewhere in construction documents as being required to be gas proof. The windows were to be above eye level. Van Pelt draws the inference that the purpose of these windows was to enable Zyklon-B pellets to be inserted through them into the building (a process which was observed by Sonderkommando Dragon, as mentioned above).
7.64 Van Pelt agreed that the drawings for crematoria 4 and 5 show a drainage system which appears to link up with the camp sewage system. He disagreed with Irving's suggestion that this would have been highly dangerous because large quantities of liquid cyanide would have found their way into the sewage system. Van Pelt claims that the gas would evaporate rather than turn into liquid.
7.65 In addition to the architectural drawings, there are other documents which, according to the Defendants, lend support to their contention that there were gas chambers at the camp which were used for genocidal purposes. I shall not itemise all the documents identified by the Defendants as belonging in this category. They include a patent application for multi-muffle ovens made by Topf. Although the patent application does not in fact relate to the ovens supplied to Auschwitz in 1942/3, it is said that the principle is the same. The two features of the application on which the Defendants focus are, firstly, the method of employing fat corpses to speed promote the rate at which corpses can be burned and, secondly, the claim that no fuel is required after the initial two day pre-heating period, no more fuel will be required because of the amount of heat generated by the burning corpses. Van Pelt noted that both these features are reflected in the account given by Tauber of the way in which the corpses were incinerated.
7.66 Another allegedly incriminating document is the record of a meeting held on 19 August 1942 between members of the Auschwitz construction office and a representative of the engineers Topf to discuss the construction of four crematoria. The note of the meeting refers to the construction of   triple oven incinerators near the "Badenanstalten fur Sonderaktionen" ("bath-houses for special actions": the words are in quotations in the original).
7.67 In a different category is a report dated 16 December 1942 made by a corporal named Kinna, which made reference to an order that, in order to releive the camp, limited people, idiots, cripples and sick people must be removed from the same by liquidation. Kinna stated that the implementation of this order was difficult because the Poles, unlike the Jews, must die a natural death.
7.68 The Defendants relies on a letter dated 29 January 1943 from Bischoff, Chief of Central Construction Managemnent at the camp, to SS Brigadefuhrer Kammler in which there is reference to a Vergasungskammer (gas chamber or cellar). There are also documents from February 1943 referring to the provision of gastight doors and windows. In a letter dated 31 March 1943 Bischoff presses for the delivery of a gastight door with a spyhole of 8mm glass, with a rubber seal and metal fitting. There is a timesheet of a construction worker which makes reference to fitting gastight windows to crematorium 4. Van Pelt pointed to a letter dated 6 March 1943 from Auschwitz to the Topf company which contemplated the use of hot air from the ventilators for the incinerators to pre-heat the Leichenkeller 1. Why, he asked, heat a morgue, which should be kept cool. Answering his own question, he claimed that Zyklon-B evaporates more quickly in high temperatures, so the killing process would be speeded up. (Irving answered that there is nothing sinister about heating the morgue: it was a requirement of good building practice in relation to civilian morgues).
7.69 Finally under this head the Defendants rely on a letter dated 28 June 1943 from Bischoff to Kammler (the authenticity of which Irving challenges) setting figures for the incineration capacity of the five crematoria, according to which their total capacity is 4756 people in every 24 hours. The Defendants' case is that this capacity was at that time deemed to be necessary to burn the bodies of the Jews who were to be brought to Auschwitz to be gassed. Basing themselves on the evidence of sonderkommandos such as Tauber, the Defendants say further that the rate of incineration was broadly in line with the estimate in the letter of 28 June 1943. The Defendants suggest that the apparent urgency of the installation of the ovens, together with their huge capacity which, according to van Pelt, was far in excess of what could possibly have been required to cope with   future typhus epidemics, reflects the policy adopted following Himmler's visit to the camp in July 1942.

Photographic evidence

7.70 In support of his contention that there were chimneys through which it is alleged that Zyklon-B would have been poured into morgue 1 at crematorium 2, van Pelt relied on a photograph taken by a camp official in February 1942. According to van Pelt in this photograph, when greatly enlarged, it is possible to detect smudges which he maintained represent the chimneys protruding through the morgue roof. Furthermore van Pelt remarked on the similarity in the alignment of the supposed chimneys in the photograph with the alignment of the chimneys in one of Olere's drawings. Van Pelt further relied on an aerial photograph which was taken in the summer of 1944 (to which I have referred earlier) on which, when greatly enlarged, spots are visible above the morgues of crematoria 2 and 3. He claims that these spots are the protruding chimneys, reduced in size because of the dirt laid onto the roof since the earlier photograph was taken. Irving gave reasons why he suspected that the 1944 photograph relied on by van Pelt had been tampered with.
7.71 Irving disputed van Pelt's interpretation of the photographs and suggested that tampering may have taken place. He produced a photograph showing the roof of morgue 1 in the background on which there is no sign of any protruding chimney. Van Pelt responded that this photograph (in which the construction of the roof of the crematorium can be seen to be incomplete) was probably taken in December 1942 at which date the chimneys would not have been installed. Van Pelt explained that the reason why no protruding chimneys are visible in another photograph produced by Irving is that it was taken after the Nazis had dismantled the gas chambers.
7.72 The Defendants also place reliance on a photograph taken at a time when Hungarian Jews were arriving at the camp in 1944. One such photograph depicts a column of women and children walking from the railway spur towards Auschwitz. Instead of proceeding into the camp through the entrance leading to the women and children's camp, the column can be seen to walking towards crematorium 2 (from which there is no access into the women and children's section).
 

Material evidence found at Auschwitz

7.73 The Leuchter report, which I have mentioned already and to which I will return in greater detail when I come to summarise the evidence relied on by Irving in connection with Auschwitz, claimed that forensic analysis revealed no trace of in the surviving ruins of the gas chambers at Auschwitz. Prompted by the publicity given to the Leuchter report, the director of the Auschwitz museum enlisted the expert assistance of Professor Markiewicz, Director of the Forensic Institute of Cracow, who arranged in February 1990 for further samples to be taken from Auschwitz for analysis.
7.74 Markiewicz decided that the so-called Prussian blue test was unreliable because its formation depended on the acidity of the environment which was particularly low in the alleged gas chambers. Markiewicz and his team therefore adopted microdiffusion techniques to test for cyanide samples from the crematoria, from the delousing chambers and a control sample taken from elsewhere within Auschwitz. The latter was tested because claims had been made that the cyanide traces in the gas chambers were explained by the fact that a single fumigation of the whole camp had taken place during the typhus epidemic. The control sample tested negative, refuting those claims. As to the tests on the crematoria and the delousing chambers, the conclusion arrived at by Markiewicz was that cyanide compounds are still to be found in all the facilities (that is, in both the delousing chambers and in the various supposed gas chambers) that, according to the source data, were in contact with cyanide. The concentration of cyanide compounds in the various samples varies greatly, even in the case of different samples taken from the same chamber or building. This indicated that the conditions producing the cyanide compounds varied locally. According to van Pelt, the Markiewicz report demonstrated positively that Zyklon-B had been introduced into the supposed gas chambers, albeit that the test results varied greatly. Van Pelt considered that the results for crematoria 4 and 5 were unreliable because they had been demolished at the end of the war with the result that it is difficult to know which brick came from where.

Conclusions to be drawn from the evidence, according to the Defendants' experts

7.75 The Defendants contend that the evidence, to any dispassionate mind, is overwhelming that the Nazis systematically murdered hundreds of thousands of Jews , mainly by the use of Zyklon-B pellets. The Defendants recognise that not all of the evidence which I have sought to summarise above is altogether reliable. This applies with particular force to the evidence of the   eye-witnesses. It is also accepted by the Defendants that in certain respects the documentary evidence, including the photographic evidence, is capable of more than one interpretation. Nevertheless the Defendants argue that the different strands of evidence "converge". For example the eye-witness evidence is corroborated by the drawings and vice-versa. There is a striking similarity in the accounts of the eye-witnesses. The similarities in their recollections vastly outweigh the discrepancies. In the main, say the Defendants, their testimony is reliable. The documentary is not overtly incriminating for the obvious reason that the Nazis wanted to keep the gas chambers secret. But it too lends support to there having been gas chambers in operation at the camp.
7.76 The overwhelming strength of the totality of the evidence may be the reason, suggest the Defendants, why in his cross-examination of van Pelt Irving chose to ignore most of it.

Irving's reasons for rejecting the evidence relied on by the Defendants as to the existence at Auschwitz of gas chambers for killing Jews

Irving as expert witness at the trial of Zundel

7.77 In his evidence Irving reiterated on a number of occasions that he is primarily a literary historian and that, at least until the present proceedings were commenced , he did not regard himself as an expert on the Holocaust. Accordingly until April 1988 he believed what he had been told about the killing of Jews in Auschwitz and the other death camps. The 1977 edition of Hitler's War contains several references to the gassing of Jews.
7.78 In April 1988 Irving went to Toronto in order to give expert evidence on behalf of Hans Zundel, a publisher, who was being prosecuted for infringing a Canadian law, since repealed, which made it a criminal offence to disseminate false information. Zundel had published a pamphlet entitled "Did Six Million Really Die?" which questioned fundamental aspects of the Holocaust. Irving agreed to assist Zundel in his defence by giving evidence as an historian as to Hitler's role in the extermination of the Jews. He was not instructed to address the issue of gassing at Auschwitz or indeed at any other alleged death camp.

The impact of the Leuchter Report

7.79 Irving testified that on arrival in Toronto he was presented with a copy of a report compiled by Mr Fred Leuchter. It was what Irving read in   Leuchter's report which convinced him that there is no truth in the claim that Jews met their death in gas chambers at Auschwitz. Irving made clear in his evidence that it was the Leuchter report and in particular the result of the chemical analysis of the samples taken from the fabric of the alleged gas chambers which had a profound impact on his thinking.
7.80 Leuchter had been retained by Zundel because he was a consultant retained by several penitentiaries to give advice about execution procedures including execution by means of the administration of gas. He had no formal professional qualifications. Zundel intended to use Leuchter's report to establish that no Jews, and certainly not six million Jews, died in gas chambers, so that he could not be said to have been spreading false information about the Holocaust. (As it turned out Leuchter did not give evidence at Zundel's trial).
7.81 In order to prepare his report, Leuchter visited Auschwitz in February 1988 to inspect the site. He removed 31 samples of brickwork and plaster from various crematoria and one control sample from a delousing chamber where cyanide was known to have been used and was visible in the form of blue staining. On his return to the US Leuchter had these samples analysed by a reputable laboratory in Massachussets. The object of the test was to discover whether the residual cyanide content of the samples was consistent with their having been exposed to high levels of cyanide over a prolonged period of time.
7.82 Chemical analysis of the control sample revealed a very heavy concentration of cyanide content, namely 1050mg/kg. By contrast the analysis of the other samples, taken from the alleged gas chambers, resulted in either negative findings or findings of very low concentration levels ranging from 1mg/g to 9 mg/kg. From this Leuchter concluded:
" [this] supports the evidence that these facilities were not execution gas chambers. The small quantities detected would indicate that some point these buildings were deloused with Zyklon-BV - as were all the buildings at these facilities. Additionally the areas of blue staining show a high iron content, indicating ferric-ferro-cyanide, no longer hydrogen cyanide.
One would have expected higher cyanide detection in the samples taken from the alleged gas chambers (because of the greater amount of gas allegedly used there) than that found in the control sample.   Since the contrary is true, one must conclude that these facilities were not execution gas chambers, when coupled with all other evidence gained on inspection".
7.83 Apart from that conclusion, upon which Irving has focussed his attention, Leuchter in his report had a number of other observations to make. He expressed the opinion that crematoria 1, 2, 3, 4 and 5 have an extremely poor and dangerous design if they were to have served as execution gas chambers. There is no provision for gasketed doors, windows or vents; the structures are not coated with tar or other sealant to prevent leakage or absorption of gas. The adjacent crematories create the potential for an explosion. The exposed porous brick and mortar would accumulate any hydrogen cyanide and render the facilities dangerous to humans for several years.
7.84 Crematorium 1 is adjacent to the SS hospital and has floor drains connected to the main sewer of the camp, which, according to Leuchter, would have resulted in liquid cyanide being carried into every building at the facility. There were no exhaust systems to vent the gas after usage and no mechanism could be found for the Zyklon-B pellets to be introduced or evaporated.. If indeed the Zyklon B pellets were fed into the chamber through roof vents or windows, there were no means of ensuring the even distribution of the gas. The facilities are always damp and unheated, which conditions are unsuited to the use of Zyklon-B.
7.85 Leuchter considered the chambers to be too small physically to contain the number of occupants claimed. The doors open inwards, which would inhibit the removal of bodies. With the gas chambers fully packed with occupants, the hydrogen cyanide would not circulate within the room. If the gas did eventually fill the chamber, anyone feeding the pellets into the vents on the roof would die from exposure to the poisonous gas.
7.86 Of the crematoria Leuchter, having reviewed modern practices, calculated that their combined theoretical daily incineration capacity was 353.6 but that in practice the maximum number of corpses which could have been burned was 156. He thus arrived at the conclusion that over the period when the incinerators were being operated, the total number of cremations would have been 193,576 in theory but no more than 85,092 in practice.
 
7.87 Leuchter's evaluation of the crematory facilities produced, according to his report, conclusive evidence that contradicts the alleged volume of corpses having been cremated within the generally alleged time frame. His "best engineering opinion" was that none of the facilities examined were ever utilised for the execution of human beings and that the crematories could not have supported the work load attributed to them.
7.88 Irving was convinced by the conclusion at which Leuchter arrived on the basis of the chemical analysis of the fabric of the supposed gas chambers. So convinced was he by Leuchter's reasoning, he decided to publish under his own imprint Focal Publications Limited, the text of the report with a foreword written by Irving. The Foreword accepts that there were methodological flaws in the report but it endorses Leuchter's findings, ending with the words "Forensic chemistry is, I repeat, an exact science".
7.89 It was put to Irving in cross-examination that the fallacy in the Leuchter report was his assumption that a far higher concentration of cyanide, in the region of 3,200 parts per million ("ppm"), would be required to kill people in the gas chambers than would be required for the purpose of delousing clothing. In truth, it was suggested to him, it is the other way round: high levels of cyanide are required for delousing purposes whereas in the region of 300 ppm will suffice for the purpose of killing human beings. Irving responded by saying that this criticism of the Leuchter report has to be "taken on board" and that "probably concessions have to be made at both ends of this scale". Irving observed that the report had the desirable consequence of promoting public debate. He remained adamant that, whatever its flaws, the crucial conclusion of the Leuchter report, based on the chemical analysis, was correct. He argued that the chambers were freshly constructed out of concrete and so would have absorbed the hydrogen cyanide producing permanent chemical changes to the fabric of the walls and ceiling. Irving accepted that, if the concentration of cyanide required for delousing clothes is far higher than the level required to kill humans, one is more likely to find 40 years residual traces of the cyanide in the fabric of the delousing chamber than in the fabric of the supposed gas chambers. But he argued that one would still expect to find far more traces in the alleged gas chambers than those recorded in the Leuchter report.

Replication of Leuchter's findings

7.90 Irving contended that the results of the chemical test conducted on behalf of Leuchter had been replicated by amongst others Gelmar Rudolf, a   chemist at the Max Planck Institute. Van Pelt knew little of his report but agreed that Rudolf's findings broadly corresponded with those of Leuchter. Irving produced a letter from the Institute for Historical Review which claimed that others had arrived at similar conclusions. He also claimed (and van Pelt accepted) that in about 1989 the Auschwitz authorities carried out tests which also found high cyanide traces in the delousing chambers and much lower quantities in crematoria 2 and 3. The results of these tests were not published. Subsequently further tests were conducted and the results were published in the so-called Markievicz report (the conclusions of which I have already summarised).

The absence of chimneys protruding through of morgue 1 of crematorium 2

7.91 As the trial progressed, it appeared that one of the main arguments advanced by Irving for denying the existence of homicidal gas chambers at Auschwitz, if not his main argument, is that the remains of the roof of morgue 1 at crematorium 2 show no sign of the chimneys which, according to the Defendants' case penetrated through the roof so as to enable Zyklon-B pellets to be tipped down into the morgue below. It will be recalled van Pelt claimed that crematorium 2 was the most lethal building of Auschwitz. In excess of 500,000 Jews lost their lives there, more than in any other place on the planet. It is the Defendants' case that the Zyklon-B pellets were fed into the chamber by means of wire mesh column which ran upwards through the roof of the chamber with the chimney protruding above roof level. The roof was made of reinforced concrete about 18-20cm in thickness with reinforcing bars within the concrete. If the chimney passed through the roof, argued Irving, the roof would to this day have five holes in it where the chimneys passed through the roof.
7.92 It is common ground that the roof of Leichenkeller 1 was supported by seven concrete pillars. The Defendants allege that adjacent to four of these pillars there ran hollow ducts or chimneys made of heavy wire mesh which protruded through holes in the roof where the pellets were poured into them and ran down into the chamber below. These ducts were 70 square centimetres in size but tapered at the top where they passed through the roof. It is Irving's case that these ducts never existed. He made that assertion because, he said, there is no trace in what remains of the roof of any holes through it. Furthermore the chimneys do not appear in the blue prints for the construction of the crematoria. Part of the roof of Leichenkeller 1 is intact, although it has pancaked down on to the floor. Irving produced a photograph which appears to show no sign of any hole in the roof. Van Pelt conceded in   one of his supplementary reports that there is no sign of the holes. It would be impossible for chimneys of the size described by Tauber and Kula to have disappeared. Irving contended that, if the holes exist, it would be a simple matter to uncover the roof so as to find out if they are there. But no one has attempted this task and he wondered why not.
7.93 As for such evidence as there is of the existence of the ducts, most of it comes from some of the eye-witnesses. But, claimed Irving, they give varying accounts of the manner in which the pellets were introduced into the gas chamber and most of them (including Bimko and Bendel) have turned out to be liars. Irving claimed to have destroyed the credibility of all of them in his cross-examination of van Pelt. Olere's drawings were probably influenced by what he was told by others and in any event he was a fantasist. The photograph taken in 1942 and relied on van Pelt does not show the chimneys. The smudges on which van Pelt relies were probably barrels of tar parked on the roof during building operations. No such smudges were visible on aerial photographs taken in 1944.
7.94 At one stage in his evidence Irving appeared to concede that Leichenkeller 1 of crematorium 2 was a gas chamber but that it was used solely for delousing purposes. In the end, however, it was his position that he had not seen any evidence that there were any gas chambers at all there whether for delousing or extermination purposes. In his evidence he went so far as to say that, if anyone detected holes in the roof, he would abandon his libel action. As he graphically put it in his closing submission, Irving argued that "[the Defendants'] entire case on Krema 2 - the untruth that it was used as a factory of death, with SS guards tipping canisters of cyanide-soaked pellets into the building through those four (non-existent) holes ... had caved in, as surely as has that roof".
 

The reason for the alterations to crematorium 2: fumigation or alternatively air-raid shelter

7.95 One explanation put forward by Irving for the adaptation work to morgue 1 and crematorium 2 is that the chamber was being adapted to serve the purpose of fumigating clothes (and perhaps other objects). He relied on a document called an Aufstellung sent by Topf to the construction office at the camp in which reference is made Entwesungsofen (disinfestation ovens), which according to Irving proves that such was their true purpose. (Van Pelt countered that these ovens may well have been for disinfecting the clothing of the Sonderkommando or alternatively for a delousing chamber which is known to have been under construction in 1943 between crematoria 2 and 3. But he added that, if it was only clothing which was to be subjected to the gas treatment it was difficult to understand the need for a peephole to be fitted in the door).
7.96 Another thesis advanced by Irving is that the adaptation of crematorium 2 was undertaken in order to convert the building to an air raid shelter rather than to a gas chamber. He claimed that there was, at the time when the reconstruction work was undertaken, concern at Auschwitz about bombing raids. He claimed that this explains why the entrance to building was moved and why the staircase was altered to enable pedestrian access to Leichenkeller 1, which was to serve as the shelter.
7.97 Irving contended that it was standard practice at that time to fit gas tight doors on all air raid shelters in case of Allied poison gas attacks. Irving drew attention to the reference by an eye-witness named Hans Stark to the door of a chamber being luftschutzer which, as van Pelt accepted, signified proof against air raid. (Stark did, however, make that reference in the context of an account of 200 people being gassed). It was, according to Irving, also standard practice for the doors to have peep-holes (although he was uncertain why there should be a metal grill fitted protecting the inside of the peep-hole). Irving was scornful of the claim made by van Pelt that the doors to the chamber were redesigned to open outwards because of the difficulty of pushing the doors open if dead bodies were piled against the inside of the door. Irving claimed that it was standard practice at the time that air raid shelters should have doors which opened outwards. Van Pelt was, however, doubtful if the architectural drawing relied on by Irving to support his contention did indeed provide for doors which opened outwards.
 

The purpose of the supplies of Zyklon-B

7.98 It is common ground that quantities of Zyklon-B were delivered by truck from Dessau to Auschwitz. Irving contended that these deliveries were for the purpose of fumigating the camp and the clothes of the inmates. A large quantity of the cyanide was needed to combat the typhus outbreak in the summer of 1942. In reliance on figures provided by Mulka, an adjutant at Auschwitz with responsibility for the deliveries, as well as upon the quantity supplied to the camp at Oranienberg, Irving argues that the quantity of Zyklon-B delivered is consistent with it having been used for the purpose of fumigation and no other.
7.99 Irving pointed to a document recording permission being given for such a delivery which stated in terms that the purpose for which the Zyklon-B was required was to carry out fumigation. He relied also on an invoice which made reference to an Entwesungsabteilung (disinfestation department). Herr Tesch of the company which supplied Zyklon-B to the camp testified at his trial that the material was for disinfestation. If cyanide had been used in the alleged gas chambers on the scale claimed by the Defendants to kill Jews, there was, according to Irving, a real danger that the poison might have found its way into the water supply for the camp.

The logistical impossibility of extermination on the scale contended for by the Defendants

7.100 Irving produced an enlarged photograph depicting what he claimed to be the Auschwitz coke bunker. He argued that it is far too small to have been capable of accommodating the huge amount of coke which would have been needed for the incineration of thousands of bodies. (Van Pelt pointed out that each crematorium had its own coke storage bunker). Irving advanced the further related arg