David Irving, Hitler and Holocaust Denial: Electronic Edition, by Richard J. Evans

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(E) Misrepresentation of reliable documents: the Communication of the SA Leadership

1. Irving also misrepresents the role of Rudolf Hess in the pogrom and its aftermath. In order to emphasise his point that almost all of the Nazi leaders, except Goebbels, opposed the pogrom, Irving claims that 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.'125 However, this claim rests on a misrepresention of the original document cited in its support, and gives a completely misleading picture of the way the Nazi leadership dealt with the brutal crimes committed in the night 9-10 November 1938. The document in question, dated 19 December 1938, cites an order of the SA leadership stating that Hess had ordered that the pogrom be investigated by the Gestapo and the party courts:
The aim of the investigation by the Party Courts is to establish which cases can and must be held responsible by the action itself and which cases arose out of personal and base motives. In the   latter cases a refferal to the state prosecution service will be unavoidable, indeed it will be just.126
2. Thus, these investigations were never supposed to examine all incidents which occurred during the pogrom. Already on 10 November 1938, the Ministry of Justice had instructed its officials that 'material damage to synagogues, cemetary halls and graveyards through fire, blowing up etc.' as well as 'damage to Jewish shops' should not be prosecuted127. This directive excluded a great number of the criminal offences committed during the pogrom and left only cases of looting, killing, grievous bodily harm and the destruction of Jewish homes out of selfish motives.128 And in these cases, the criminal courts left any investigations to the Gestapo and the party courts. In these cases investigated by the party courts, by no means all 'culprits', as Irving claimed, were later to be turned over to the criminal justice system. Only those offenders were to be transferred in this way who were judged by the party courts to have acted out of base motives. In all other cases, the participants in the violence of 9-10 November 1938 were to be spared a criminal prosecution. What Hess's directive did, therefore, was the exact opposite to what Irving claims it did. It ensured that only a small number of offences committed during the pogrom ever reached the criminal courts. Had Hess wanted the criminal courts to deal with the offences, then he would have left the investigations to   the public prosecutors, rather than the Gestapo and the party courts. However, this was precisely what leading Nazis like Hess wanted to avoid. As the Supreme Party court of the NSDAP noted in February 1939
The Führer's Deputy shared the view of the Supreme Party Court that the excesses which had become known should in any case first be investigated by the party jurisdiction...The view of the Supreme Party Court is that it must be fundamentally impossible for political offences which primarily touch on the party's interests, offences which...are desired by the party as illegal measures, are confirmed and condemned by state jurisdiction, without the party previously having the possibility of creating clarity about the events and contexts through its own courts, in order if necessary to ask the Führer to quash the trial before the state courts at the right moment..129
3. Where the Party Courts drew the line between actions which could be justified, and those which were judged to have been committed out of vile motives, becomes clear in the various judgements of the Party Courts. For instance, in the report of 13 February 1939, Göring was informed of the outcome of the investigations in 16 cases which the Supreme Party Court had undertaken. In only two of the 16 cases, both involving the rape of Jewish women, had the Party Court transferred the perpetrators to ordinary criminal courts (and in these two cases the party judges were not motivated by concern for the victims, but simply by the fact that Nazi party members had committed 'racial   defilement' or in other words compromised what the party regarded as their own racial purity). In all the other 14 cases, the Supreme Party Court asked Hitler to quash proceedings. These cases included the brutal murder of 21 Jews, who had been shot dead, stabbed to death or drowned by Nazi party members. The worst punishment meted out to these murderers was an official warning and barring from any Nazi party office for a period of three years. The great majority of offenders received even milder 'punishments', or none at all.130
4. In view of this evidence it is completely misleading by David Irving to claim that Hess ordered that the 'culprits' for the violence committed during the pogrom to be turned over to Public Prosecutors. On the contrary, Nazi leaders including Hess successfully prevented the vast majority of offenders from being prosecuted.

Notes

125. Irving, Goebbels, p. 281.
126. 'Der Zweck der Untersuchung durch die Parteigerichte ist, festzustellen, welche Fälle aus der Aktion heraus verantwortet werden können und müssen und welche Fälle persönlichen und niederen Motiven entsprangen. In letzteren Fällen wird eine Uebergebung an die Staatsanwaltschaft unumgänglich, ja gerecht sein.' Mitteilung der Obersten SA-Führung, cited in: BA Berlin, BDC file 240/Il, Der Führer der Gruppe Kurpfalz, 19.12.1938.
127. Translated as: 'Sachbeschädigungen an Synagogen, Friedhofshallen und Friedhöfen durch Brand, Sprengung usw', 'Beschadigungen von jüdischen Geschäften'
128. Reichsministerium der Justiz an Generalstaatsanwalt Hamburg, 19.11.1938, cited in L. Gruchmann, Justiz im Dritten Reich. 1933-1940 (Munich, 1990), pp. 487-8.
129. "Der Stellvertreter des Führers teilte die Auffassung des Obersten Parteigerichts, dass die bekannt gewordenen Ausschreitungen jedenfalls zunächst von der Gerichtsbarkeit der Partei zu untersuchen seien... [Es] muss nach Auffassung des Obersten Parteigerichts grundsätzlich unmöglich sein, dass politische Straftaten, die primär das Interesse der Partei berühren, die... als illegale Massnahmen von der Partei gewollt sind, von den staatlichen Gerichten festgestellt und abgeurteilt werden, ohne dass die Partei die Möglichkeit hat, sich vorher durch ihre eigenen Gerichte Klarheit über die Vorgänge und Zusammenhänge zu verschaffen, um gegebenenfalls rechtzeitig den Führer um Niederschlagung des Verfahrens vor den staatlichen Gerichten bitten zu können? Der Oberste Parteirichter an Hermann Goring, 13.2.1939; in Der Prozess gegen the Hauptkriegsverbrecher vor dem Internationalen Militärgerichtshof Vol. XXXII, ND 3063-PS.
130. Ibid. Only one of the 14 cases did not involve murder but a sexual attack on a Jewish woman. In this case, the perpetrators had been taken in to police custody and most probably been sent to a concentration camp.
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