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Defense Documents

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

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(iii) Conclusion

1. This detailed investigation has made clear that David Irving is wrong to claim with absolute certainty that the document in question was dictated by Franz Schlegelberger in Spring 1942. As has been shown, this is merely one of several possible interpretations, and the note may in fact date from July 1941. Irving is utterly misleading when he argues that the document 'is incompatible with the notion that Hitler had ordered an urgent liquidation programme' and shows that Hitler 'ordered "No Final Solution"'.48 If one accepts that the note dates from Spring 1942, an examination of   the historical context makes clear that the 'present discussions' to which the document refers, were most probably the discussions taking place in the spring of 1942 about divorce proceedings for Jews in 'mixed marriages' and measures against 'half-Jews'. These discussions took place under the general heading 'Final Solution of the Jewish Question' (Endlösung der Judenfrage). In this context, the overwhelming likelihood is that Lammers's reference to views Hitler had expressed in the past that the solution of the 'Jewish question' be postponed until after the war was over, referred only to the fate of 'half-Jews' and Jews in 'mixed marriages'. The fate of 'full Jews', by contrast, had already been decided upon in principle. Yet, until the position of the borderline categories was finally clarified, the 'Jewish Question' as many Nazis understood it could not be regarded as completely solved. Lammers's reference to a possible surprise intervention from another agency was probably meant to reassure Schlegelberger that more radical officials in other party or state positions who, as we have seen, favoured a more drastic solution, would not be allowed to resolve the issue without Schlegelberger's considerations being taken into account.
2. The absurdity of Irving's claims regarding the document can be demonstrated in two other ways. First, if the term 'final solution' was really understood to mean, in each and every context in which it was used by the Nazis, the total physical extermination of the Jews in Europe, as Irving implies, then the document immediately would make clear that Hitler did know about the plan to exterminate Europe's Jews, even if he did want it postponed until after the war. Surely Irving would not want this implication to be drawn from the document in question; the inference would run counter to everything he has previously argued about Hitler, and indeed he does not draw it here.
3. Secondly, the actions of the Ministry of Justice regarding the Jews from spring 1942 onwards are absolutely incompatible with Irving's claim that Ministry officials had received an order from Hitler which stated '"No Final Solution"', or in other words, no killing of Jews. On 16 April 1942, only six days after Schlegelberger's presumed meeting with Lammers, the Ministry of Justice issued a directive to all Chief State Prosecutors in Germany stating that the Ministry supported the 'evacuation' to the East of the Jewish inmates of all German penal institutions. On this date, regional judicial authorities were instructed by the Ministry that 'the implementation of a prison sentence against Jews who are to be evacuated is to be discontinued after a requisition by the state police authority'. In such cases, the prisoners were to be directly handed over to the Gestapo. The same principle was applied to Jewish prisoners awaiting trial on remand, 'unless', the Ministry added in a revealing phrase, 'it is expected that they will be sentenced to death', showing that judicial officials clearly understood that 'evacuation' was a synonym for 'execution'.49
4. All the remaining Jews in state penal institutions were handed over to the police (together with other selected 'asocial' state prisoners) after a meeting between Himmler and the new Minister of Justice, Otto-Georg Thierack, on 18 September 1942 'for annhihilation through labour'. More than 1,000 Jewish prisoners were transported straight to Auschwitz following this agreement.50 Finally, on 13   October 1942, Thierack wrote to Martin Bormann to inform Bormann of his plans that in future the judicial courts would no longer prosecute any offences by Jews, as well as other 'racial aliens' (Russians, Poles and Sinti and Roma). Instead, such offenders should be left to the SS and police. Thierack explained his motives with reference to the fact that
The judicial system can only contribute in small measure to exterminating members of this race...There is no sense either in conserving such persons for years on end in German prisons and penitentiaries....On the contary it is my belief that substantially better results can be achieved by delivering such persons to the police, who can then take their measures free of the threat of legal prosecution.51
5. Thus, the Ministry of Justice since 1942 was actively involved in the extermination of Jews. Whatever Schlegelberger had come away with from his meeting with Lammers, it was clearly not the impression that it was Hitler's wish that the Jews were not to be exterminated. Schlegelberger also did not mention any such wish in his testimony at the Nuremberg trials.52 In contrast, the Ministry of Justice made apparently no further policy advances regarding 'half-Jews' after the meeting between Lammers and Schlegelberger. Thus, Thierack   agreed in October 1942 that the issue of the 'half-Jews' should be left alone until the end of the war.53
6. Irving is well aware that the historical context of the document in question ('Schlegelberger memorandum') is most likely to have been the discussions regarding 'mixed marriages' and 'half-Jews' in spring 1942. He has even accepted this himself.54 He knows the documents which support this conclusion. The fact that he continues to mislead the public with his claim that the document proves that Hitler 'ordered "No Final Solution"' is testament to his obsessive belief in Hitler's innocence which, here as in so many other instances, has led him to misrepresent a documentary source in the interest of a historically untenable argument.
7. Peter Hoffmann, a leading specialist on the history of the German resistance, noted in 1989, when Irving repeated his account of the Schlegelberger memorandum in his biography of Hermann Göring:
Mr. Irving knows that this is part of a file regarding the legal status and definition of German Jews of mixed parentage and those married to non-Jewish partners.... Apparently, 11 years after the West German historian Eberhard Jäckel first showed and explained the document to him, Mr. Irving is still too pleased with its possibilities to see that it defeats his purpose. By publishing it as "proof" that Hitler did not want the Jews murdered, Mr. Irving accepts the term "solution of the Jewish question" as meaning mass murder, and he accepts Hitler's knowledge of the program. Had he taken it at its discernible face value, he would have avoided the logical   trap. Further, he put himself in the position of accepting second-hand evidence on Hitler's wishes in the matter, so that he cannot convincingly contrive to exclude the mass of available secondhand evidence contradicting his interpretation.55
8. Ten years previously, after first demolishing Irving's interpretation of the document, Jäckel had written that Irving knew full well how limited its significance was. 'But he only ever sees and collects what fits his story, and even now he will not let himself be dissuaded from understanding what he wants to by the phrase 'postponement of the Jewish question.' Jäckel predicted that Irving would soon repeat it in his books once more. That he would still be repeating it so many years after it had been disproved, would come therefore as no surprise to him.56 This supposedly key document in Irving's arsenal of alleged documentary proof of Hitler's lack of culpability for the extermination of the Jews has long been regarded by professional historians as nothing of the kind.


48. Irving, Hitler's War (1991 ed.), p. 18; David Irving press release, 6.3.1978, Third Supplemental Discovery List by Irving.
49. BA Berlin, R 22/1238, Bl. 286: Der Reichsminister der Justiz an den Oberreichsanwalt beim Volksgerichtshof, die OLG Präsidenten, die Generalstaatsanwälte, 16.4.1942.
50. BA R 22/4062, Bl. 35a-37: Besprechung mit Reichsführer SS Himmler am 18.9.1942 in seinem Feldquartier. For the implementation of this agreement, see N. Wachsmann, '"Annihilation through Labour". The Killing of State Prisoners in the 'Third Reich'', Journal of Modern History (forthcoming 1999).
51. BA Berlin, 99 US 2 FC, 585, Microfilm 22933, Bl.287: Thierack an Bormann, 13.10.1942; ND NG-558: 'die Justiz nur in kleinen (sic!) Umfange dazu beitragen kann, Angehoerige dieses Volkstums auszurotten...Es hat auch keinen Sinn, solche Personen Jahre hindurch in deutschen Gefaegnissen und Zuchthaeusern zu konservieren...Dagegen glaube ich, dass durch die Auslieferung solcher Personen an die Polizei, die sodann frei von gesetzlichen Straftatbestaenden ihre Massnahmen treffen kann, wesentlich bessere Ergebnisse erzielt werden.'
52. Interrogation of Franz Schegelberger, IMT, Vol. XX, pp. 300-301.
53. BA Berlin, R 22/4062: Thierack Vermerk über eine Besprechung mit Goebbels, 26.10.1942; cited in J. Noakes, 'Nazi Policy towards German-Jewish "Mischlinge"', Leo Baeck Institute Yearbook, 34 (1989), pp. 291-354, here p. 347.
54. Irving, Hitler's War (1991 ed.), p.464.
55. Peter Hoffmann, 'Hitler's Good right Arm', The New York Times, 28 May 1989.
56. Eberhard Jäckel, 'Der Zettel', also 'Noch einmal: Irving, Hitler und der Judenmord', in Marthesheimer and Frevel (eds.) Im Kreuzfeuer, pp. 163-66.
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