Irving v. Lipstadt

Appeal

Holocaust Denial on Trial, Appeal Judgment: Electronic Edition, by Lord Justice Pill

Table of Contents
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Goebbels diary entry for 27 March 1942

71. Under this heading in the judgment, two overlapping but distinct issues arise. The first, and it is the one which the judge identified at 5.172, is "the manner in which Irving deals with the question of when Hitler was aware of the policy of exterminating Jews". The judge's conclusion (13.38) dealt with that issue but also a second issue, whether the applicant's treatment in Hitler's War (both editions) of Goebbels diary entry for 27 March 1942 is misleading. The diary entry has to be considered against the "common ground" identified by the judge (5.172). As the judge put it (5.171): the "Einsatzgruppen set about the systematic killing of Soviet Jews [in 1941]. 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 ..."
72. The respondents' case at the trial was that the applicant's claim that Goebbels deceived Hitler, by concealing from him the reality of what was happening in the death camps, was wrong. The judge concluded first (13.37) that the manner in which the applicant dealt with the diary entry in Hitler's War (both editions) was "misleading and unsupported by the circumstantial evidence" (13.37). Secondly, he did not "accept that the evidence of the circumstances as they existed in March 1942 lends support to Irving's claim that Goebbels concealed from Hitler the reality of what was happening in the death camps" (13.38).
73. The diary entry was (5.174):
"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 ...".
74.On this issue, the judge expressed his two conclusions in summary form. In our judgment they are both justified. In Hitler's War (1991 p 464-5), the applicant wrote:
"Dr Goebbels, agitating from Berlin, clearly hoped for a more speedy and ruthless solution, although he held his tongue when meeting his Fuhrer. On March 19 he quoted in his diary only this remark by Hitler: 'The Jews must get out of Europe. If needs by, we must resort to the most brutal methods.' That Goebbels privately knew more is plain from his diary entry of the twenty-seventh. 'Beginning with Lublin,' he recorded, 'the Jews are being pushed out eastward from the Generalgouvernement. A barbaric and indescribable method is being employed here and there's not much left of the Jews themselves. By and large you can probably conclude that sixty percent of them have to be liquidated, while only forty percent can be put to work.' Dr Goebbels recorded further that the Trieste-born SS Brigadier Odilo Globocnik, the former Gauleiter of Vienna, was performing this task carefully and unobtrusively. As fast as the ghettos of the Generalgouvernement were being emptied, they were being refilled with the Jews, deported from the Reich, and the cycle started over again. '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 ... At this moment Himmler is handling the major transfer of Jews from the German cities into the eastern ghettos'."
The diary entry is quoted in the context of a passage in which the applicant stated that Goebbels "held his tongue when meeting his Fuhrer", that Goebbels "evidently never discussed these realities with Hitler" and that Goebbels was "a two-faced minister". Hitler and Goebbels had met, the judge found, on the day before the diary entry. (It is agreed that the date of 29 March stated at 5.174 should be 26 March.) The failure of the applicant, in a passage the theme of which was that Goebbels was keeping Hitler in ignorance of the realities, to refer to the second part of the diary entry of 27 March justified the judge's conclusion (13.38) "that the way in which Irving deals with this diary is tendentious and unjustified". In the course of that passage it had been stated that "here too the Fuhrer is the persistent pioneer and spokesman of a radical solution".
 
75. The judge also considered (13.38) whether "evidence of the circumstances as they existed in March 1942" lent support to the claim that "Goebbels concealed from Hitler the reality of what was happening in the death camps". The judge recognised that the applicant was justified in his claim that Goebbels was often mendacious in his diary entries and that the entries have to be scrutinised in the light of surrounding circumstances. It was in that context that the judge stated that he did not consider that "Irving was able to point to evidence which controverted the contention of the defendants that by March 1942 the 'radical solution' favoured by Hitler was extermination and not deportation". Mr Davies submits that in that sentence the judge reversed the burden of proof. It was for the respondents to establish that it could not rationally be suggested that Goebbels concealed the reality from Hitler and not for the applicant to establish that Hitler did not know. If that statement in the judgment were to be taken in isolation, the submission would be correct. The point arose however in the context of whether the applicant's treatment of the diary entry was a fair and rational one. In putting the criticised point in the way he did, the judge was, in the applicant's favour, expressing his willingness to consider whether what he had found was "misleading" treatment of the diary entry might be rendered fair treatment by evidence of surrounding circumstances.
76. The issues of Hitler's knowledge and of treatment of a diary entry became intertwined in this part of the judgment in a somewhat complex way. We do however agree with the conclusion of the judge, already stated, on each of them.
77. The point is fairly made that historians, especially those as assiduous in their research as the applicant, are constrained by space in their citation of source documents. On an issue as important as Hitler's knowledge of realities of the Third Reich, however, an historian who claims that Hitler was kept in ignorance by one of his chief ministers whom he met regularly, was required to place before his readers a fuller account of an important and relevant diary entry made a day after one of the meetings.
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