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

Table of Contents
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The Schlegelberger note

62. The judge introduced the issue in this way:
"5.151 One central document cited by Irving in support of his case that Hitler consistently intervened to mitigate the harm sought to be done to the Jews is a note said to have been dictated by an official in the Reich Ministry of Justice, namely, Schlegelberger, which is undated but which is claimed to have come into existence in the spring of 1942, which records what he has been told by Lammers, a senior civil servant at the Reichskanzlerei:
Reichsminister informed me that the Fuhrer has repeatedly declared to him that he wants to hear that the solution to the Jewish question has been postponed until after the war is over'.
That note, says Irving, is incompatible with the notion that Hitler authorised or condoned the wholesale extermination of Jewry during the war."
Mr Davies submits that the note is central to the appeal on the facts. It is an authentic record of Hitler's thinking on the Jewish question and so of seminal importance. At the trial, the applicant referred to it as a "high-level diamond document" (13.33).
63. The respondents' case, also made by Mr Rampton at this hearing, was that the Schlegelberger note made no sense against the background of the events of 1942 which included the mass transportation of Jews from Western and Central Europe. The respondents sought to cast doubt upon the date of the document and the circumstances in which it came into existence so as to question whether any weight could be given to its contents. Even if it did accurately record a statement of Hitler's views in March 1942, it was likely to be his view not on the Jewish question generally but on the narrower issue of mixed marriages between Jews and Gentiles and the children of such marriages (Mischlinge) (5.155). That question had been discussed at the Wannsee Conference in January 1942 and again discussed at a further conference on 6 March 1942. The allegation against the applicant is that no reputable and objective historian would in the circumstances admit only one possible interpretation of the note.
64. The judge was prepared to assume that the note was a 1942 document but concluded (13.35) that:
"it is (to put it no higher) very doubtful if the Schlegelberger note is evidence of a wish on the part of Hitler to postpone the Jewish question until after the war, that is, to take no offensive action against them of any kind until after the cessation of hostilities. I do not believe that Irving was able to provide a satisfactory answer to the Defendants' question: why should Hitler have decided suddenly in March 1942 to call a halt to a process which had been going on with his authority on a massive scale for at least six months. I am persuaded that, for the reasons advanced by Evans, it is at least equally likely that the note is concerned with the complex problems thrown up by the question how to treat half-Jews (Mischlinge)".
65. The judge went on to state that if the respondents' explanation of the note is correct "the note does not possess the significance which Irving attaches to it".
66. The judge's conclusion was:
"13.36 I do not regard the arguments advanced by Irving, which I have set out at paragraphs 5.165-7, as being without merit: they are worthy of consideration. But I do consider the Defendants' criticism to be well-founded that Irving presents the Schlegelberger note as decisive and incontrovertible evidenced Hitler's War at p 464) when, as he should have appreciated, there are powerful reasons for doubting that it has   the significance which he attaches to it. Irving's perception of the importance of the note appears to take no account of the mass murder of the Jews which took place soon afterwards."
67. That conclusion was stated in the context of the judge's earlier opinion (13.32) that "Irving's treatment of the Schlegelberger note and the importance which he attaches to it shed important light on the quality of his historiography". It is clear that the judge has not fully accepted the respondents' attempt to diminish the value of the note. The judge regarded the issues surrounding the note as "worthy of consideration". The criticism of the applicant's historiography is based on the applicant having presented the note as "decisive and incontrovertible evidence". We have been referred, as was the judge, to the applicant's references to the note in his books and speeches. In Hitler's War (1991, p 18) the applicant stated: -Whatever way one looks at this document it is incompatible with the notion that Hitler had ordered an urgent liquidation program". In Hitler's War (1991), p 464, Lammers' statement in the note is said to be "highly significant". In Goebbels (1996), p 388:
"Hitler wearily told Hans 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".
68. In a speech to the Institute for Historical Review in 1983, the applicant referred to the note as "the most cardinal piece of proof in this entire story of what Hitler knew about what was going on". At Toronto on 13 August 1988 the applicant referred to the note as the "most compelling document" that Hitler did not know about the extermination of the Jews. He added that "there is no clearer proof than that one document".
69. The judge's use of the expression "decisive and incontrovertible evidence" was a paraphrase of what he considered to be the applicant's views. As such, it was somewhat too strong, in our view. The judge was however correct, in our judgment, both in his view that the applicant's treatment of the note sheds light on the quality of the applicant's historiography and in the substance of his eventual conclusion. A reputable historian would have let his readers and listeners know of the problems involved in assessing the value and effect of the Schlegelberger note and would not have used the language he did. The particular relevance of the issue is that it bears upon the role in events of Hitler himself, an important issue between the parties.
70. Mr Davies urges us not to judge the applicant as a "platform speaker". The fact that some of the strong statements just cited were made in public speeches rather than in written publications does not, in our judgment, greatly lessen their significance in present circumstances. Where, as in some of the instances we have had to consider, the charge is one of incomplete treatment of a range of evidence, it would not be right to demand too stringent a standard of comprehensiveness in formal lectures. Where, however, as with the Schlegelberger note, the charge is the promotion of historical claims on the basis of evidence that the applicant should have known was questionable to the extent that it could not be used in support of those claims without qualification, it seems to us that the conduct is equally open to criticism whether it takes place in a public speech or within the confines of a work of scholarship. In the   speeches to which we have been referred, the applicant was presenting himself as a professional historian, entitled to speak as such and entitled to be given credence as such.
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accessed 12 March 2013