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Judgement

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

Table of Contents

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.