Irving v. Lipstadt

Judgement

Holocaust Denial on Trial, Trial Judgment: Electronic Edition, by Charles Gray

Table of Contents
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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.
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