Irving v. Lipstadt

1. In September 1935, the Nazis proclaimed the so-called Nuremberg laws, which outlawed sexual relations between Germans and Jews (apart from those already married) and made German Jews officially into second-class citizens.15 These laws meant that the Nazis had to legally define who they regarded to be a 'Jew'. This issue was settled in the First Supplementary Decree to the Reich Citizenship Law of 14 November 1935. Falling back on religious definitions of Jews (and thus openly acknowledging the absurdity of Nazi racial ideology), a Jew was defined as 'anyone who is descended from at least three grandparents who are racially full Jews'. This last point was defined as follows: 'A grandparent shall be considered as full-blooded if he or she belonged to the Jewish religious community'.

2. However, German citizens with two grandparents who had belonged to the Jewish religion were classified in a crucially different way. Only if they, too, were members of the Jewish religion or married to a 'full Jew', were they classified by the Nazis as 'Jews'. In all other cases (barring some other special circumstances), they were classified as 'half-Jews' (Mischlinge) 'of the first degree'.16

3. 'Half-Jews' faced various forms of discriminations, from being dismissed as civil servants to having to pay higher school fees than 'Aryans' did. But while their   treatment continuously deteriorated during the 'Third Reich', the 'half-Jews' were still in a comparatively better position than those Germans who had been classified by the Nazis as 'full-Jews'. The privileged status of the 'half-Jews' (of whom there were an estimated 69,000 in Germany and Austria in 1939) compared to 'full Jews' was not accepted by some agencies in the Nazi dictatorship. The Nazi party and other officials (for instance in the Sicherheitsdienst) pushed for a change in policy and demanded that 'half-Jews' be treated in the same way as 'full Jews'. These demands were opposed by officials in the Ministry of the Interior and other government departments. Hitler was apparently ambivalent about the status of 'part-Jews' and did not decisively intervene in these debates.17

4.Already before the beginning of the deportation of German Jews to the East in autumn 1941, the question of what should happen to the 'half-Jews' apparently took on greater urgency for various Nazi officials. This became obvious above all at the notorious Wannsee conference of 20 January 1942. The general topic of the conference was the 'final solution of the European Jewish question'. In the first part of the conference, Heydrich informed the high-ranking party and government officials present, that Hitler had approved of the 'evacuation of the Jews to the east' as a solution to the 'Jewish question'. Heydrich left no doubt about the murderous fate which awaited the Jews:

5. Adolf Eichmann, who took these minutes at the meeting, after the war admitted that the minutes were put in euphemistic language, and that at the meeting itself the talk had been openly about 'killing and elimination and annihilation'.19 The meeting voiced no opposition to the plans outlined by Heydrich. Soon after the Wannsee conference, Heydrich expressed his satisfaction that the 'basic line in respect of the final solution of the Jewish question has been set and complete agreement exists on the part of the agencies which are participating in it.'20

6. The same could not be said, however, for the special case of 'half-Jews' and Jews in 'mixed marriages' with people whom the regime defined as non-Jews or 'Aryans'. Even though their fate was discussed at great length in the second part of the Wannsee conference, no consensus was reached. As Heydrich pointed out at the meeting, an important precondition for the 'Final Solution' was 'the precise definition of the group of persons involved'. Heydrich thus suggested that 'Mischlinge 1st degree are to be treated as Jews for the purpose of the final solution' [i.e. deported to the East], apart from certain exceptions such as 'half-Jews' married to partners classified by the Nazis as German. Those few 'half-   Jews' allowed to stay in the Reich, Heydrich proposed, were all to be sterilised 'to resolve finally the Mischling problem'. Regarding 'mixed marriages', Heydrich argued that the 'decision on whether the Jewish partner should be evacuated or sent to an old people's ghetto must be decided from case to case depending on the effects of such a measure on the German relatives of this mixed marriage.'21

7. Heydrich's plans regarding the 'half-Jews', which repeated demands made in summer 1941 by Nazi Party and SS radicals,22 were not universally accepted. State Secretary Stuckart from the Ministry of the Interior criticised them as leading to 'endless administrative work'. He proposed that the 'half-Jews' be sterilised (rather than 'evacuated') and that in the case of 'mixed marriages', as he said, 'one ought also to contemplate ways by which the legislator might say, for example: "these marriages are dissolved"'.23 In order to iron out these differences regarding the treatment of 'half-Jews' and 'mixed marriages', Heydrich called a 'detailed discussion' (Detailbesprechung) of lower-ranking state and party officials on 6 March 1942 in the Reich Security Head Office.24

8. It is absolutely vital to note that this conference, and the written exchanges by the participants in the aftermath of the conference, were only concerned with the   issue of 'mixed marriages' and 'half-Jews'. The fate of the 'full Jews' was not raised, as it had already been agreed upon in principle, even if, as historians like Peter Longerich have argued, Nazi leaders had not yet abandoned their view that the total extermination of all European Jews would only be completed after the war was won.25 Nevertheless, the conference on 6 March 1942 and the subsequent exchanges were still conducted under the general heading 'Final Solution of the Jewish Question'.26 The reason for this is clear: the officials were still occupied with determining 'the precise definition of the group of persons involved' in the 'final solution', as Heydrich had put it at the Wannsee conference. Were 'half-Jews' also to be 'evacuated', or 'only' sterilised? And what would be the fate of Jews in 'mixed marriages'? All of these seemingly minor questions of detail were vital to the implementation of the 'Final Solution' and had already taken up a great deal of time at the Wannsee Conference itself. This was unfinished business from the Conference, in other words, and it is not surprising that it continued to be carried on under the general heading of the 'Final Solution of the Jewish Question'.

9. These matters of detail were thus debated at the meeting of 15 lower ranking state and party officials on 6 March 1942 under this very general heading - 'Endlösung der Judenfrage'. The content of this meeting is detailed in several contemporary sources.27 Regarding the 'half -Jews', Stuckart's proposal that they   all be compulsory sterilised and then allowed to remain in the Reich was widely criticised. Most officials agreed that such mass sterilisations were impossible during the war, as hospital beds and doctors were needed for the war-wounded. It was also remarked that Stuckart's proposal would not lead to a complete 'solution of the half-Jew problem', for:

10.'In the highest quarter' was the traditional bureaucratic designation for the head of state, or in this context, for Hitler. In view of the fact that Hitler had expressed himself on this issue, the meeting decided that Hitler should be presented both with Stuckart's proposal for the general compulsory sterilisation of all 'half-Jews', and with an alternative plan, which mirrored Heydrich's suggestions at the Wannsee conference. Under this proposal, 'half-Jews' would generally be equated with Jews, and 'evacuated' (possibly to special 'settlements' to be set up for 'half-Jews'). However, there was to be a one-off screening process of 'half-Jews', after which a relatively small group would be allowed to remain in the Reich. In their case, the officials envisaged their 'voluntary' sterilisation 'as quid-pro-quo for the clemency accorded to them in being allowed to stay in the Reich.' But in case Hitler still opted for the Stuckart proposal, rather than this   alternative plan, it was suggested that the sterilised 'half-Jews' should not be allowed to remain in the Reich, as they represented a political and administrative 'burden'. Rather, they should be deported to a special 'settlement' for 'half-Jews'.

11. The representative of the Propaganda Ministry at the conference on 6 March 1942 also criticised the proposal Stuckart had made at the Wanssee conference regarding the issue of 'mixed marriages'. He rejected the promulgation of a law which would forcibly dissolve all marriages between German Jews and non-Jewish Germans on political grounds, especially as the Vatican would probably criticise such a law. The representative of the Ministry of Justice also opposed the proposed law out of general legal considerations. In the end, the officials at the meeting put forward a compromise solution, which, however, was still close to the original proposal for forcible divorces. The German partners in 'mixed marriages' were to be given the option to approach the courts for a divorce, which would then be granted automatically. However, if the German partners failed to do so within a specified time-frame, then

12. When the lower-ranking officials reported to their superiors about the outcome of the conference on 6 March 1942, several senior officials immediately raised   concerns. On 16 March 1942, State Secretary Stuckart from the Ministry of the Interior sent a letter to seven of the state and party offices which had been represented at the 6 March 1942 meeting. In this letter under the heading 'Re: Final Solution of the Jewish Question' Stuckart reiterated his vehement opposition to the plan 'to equate the half-Jews with the Jews and to incorporate them into the expulsion action already in progress for Jews'. He reiterated his proposals for the 'natural dying-out of the half-Jews within the Reich territory' after their sterilisation.29

13. The discussions at the conference on 6 March 1942 also rang alarm-bells in the Ministry of Justice. When the acting Minister of Justice, Franz Schlegelberger, was informed by the ministries' representative at the meeting, Massfelder, of the discussions, he immediately wrote to Hans Heinrich Lammers, the head of the Reich Chancellery. It is at this point that we return to the three documents collected in the file in the German Federal Archives (R 22/52). In his letter to Lammers on 12 March 1942, Schlegelberger noted that the meeting of 6 March 1942 had prepared the ground for decisions, 'which I must hold to be in large part completely impossible': 'Since the result of the discussions, in which indeed an adviser from your Department took part, is to form the basis for the Führer's   decision, I urgently wish to discuss this matter with you personally in good time.'30

14. In a letter sent some three weeks later to seven of the state and party offices which had been represented at the 6 March 1942 meeting, Schlegelberger set out exactly which proposals he objected to. Again, this letter is written under the heading 'Re: Final Solution of the Jewish Question'. At the beginning of his letter Schlegelberger reiterated Heydrich's demand at the Wannsee conference for a clear definition: 'The final solution of the Jewish question demands a clear and permanently determining prior delimitation of the group of people to which the measures envisaged are to be applied.'

15. Schlegelberger then moved on to discuss in detail the different proposals for the treatment of 'half-Jews' and 'mixed marriages'. Regarding the former, Schlegelberger supported Stuckart's proposal that Those 'half-Jews' with children who were not classified as 'half-Jews', Schlegelberger suggested, could possibly even be exempted both from sterilisation and 'expulsion'.

16. Regarding 'mixed marriages', Schlegelberger raised no objections to the proposals that procedures for divorce applications by non-Jewish Germans married to German Jews or 'half-Jews' be simplified. However, Schlegelberger strongly opposed the proposals for forcible divorces which had been made at the conference on 6 March 1942:

17. No doubt, Schlegelberger also opposed the proposals for forcible divorces made at the conference on 6 March 1942, as they would have left the entire decision-making process in divorce issues regarding Jews to Heydrich's officials. Courts and judges were to be given no option but to grant divorce petitions approved by the Reich Security Head Office. for most of the Nazi years, the Ministry of Justice was consistently concerned to maintain at least the formal appearance of judicial independence, and here was a proposal which threatened to undermine it. In practical terms it would also have removed a significant area of decision-making from the Ministry's purview.

18. It was these issues, the treatment of the 'half-Jews' and 'mixed marriages', which Schlegelberger wanted to raise with Lammers. Schlegelberger was clearly not concernced about the fate of 'full Jews'. As we have already seen, their fate had already been agreed upon in principle by the different state and party officials at the Wannsee conference. On 18 March 1942, Lammers, writing from Hitler's   headquarters, replied to Schlegelberger's request for a meeting. Under the heading: 'Re: Complete Solution of the Jewish Question', Lammers agreed to meet Schlegelberger. A date for the meeting would be fixed upon Lammers's return to Berlin, which he expected to be at the end of March 1942.31

19.If it is accepted that it dates from Srping of 1942 then it tis possible that the document in question ('Schlegelberger memorandum') is Schlegelberger's record of this meeting with Lammers, which according to the historian Eberhard Jäckel took place on 10 April 1942.32 Lammers at the meeting apparently informed Schlegelberger that Hitler had repeatedly told him in the past, that the issue of 'half-Jews' and 'mixed marriages' would be solved after the war. This is the only reasonable interpretation of the phrase 'solution of the Jewish question' (Lösung der Judenfrage) used in the note if the note is dated to the Spring of 1942. As has been clearly demonstrated, Schlegelberger did not seek a meeting with Lammers to discuss the 'evacuation' of Jews to the East in general. This had already been decided upon. He only wanted to raise the issue of 'half-Jews' and 'mixed marriages'. It has also been shown that the debates about this very specific   issue in March and April 1942 were conducted under the general heading 'Final Solution of the Jewish Question' (Endlösung der Judenfrage) or complete colution of the Jewish question (Gesamtlosung der Judenfrage).

20. This interpretation of the document is supported by other sources as well. In preparation for the Nuremberg trials, Allied prosecutors interrogated several officials who had been involved in the discussions regarding 'half-Jews' and 'mixed marriages' in spring 1942. Some officials, like Franz Rademacher from the Foreign Office, simply claimed that they did not remember a thing about the conference on 6 March 1942, even though Rademacher had himself passed on a summary of the meeting to his superiors.33 Edinger Ancker, who had represented the Party Chancellery at the meeting on 6 March 1942, suffered from a similar loss of memory.34 However, two officials from the Reich Chancellery (headed by Lammers), Hans Ficker and Gottfried Boley, did give testimonies about the discussions in spring 1942. These testimonies were certainly self-serving (for instance, Ficker claimed ignorance about the extermination of the Jews) and have to be treated with some scepticism. As Ficker admitted, he had talked about the meeting on 6 March 1942 'more than a dozen times' with Boley in an internment camp.35 Nevertheless, these interrogations broadly confirm the context of the document in question ('Schlegelberger memorandum').

21. Asked about the exchange of letters between Lammers and Schlegelberger in March 1942, Ficker recalled that in early 1942 the Reich Chancellery had   received an invitation from the Reich Security Head Office for a discussion regarding the 'Final Solution of the Jewish Question' (Endlösung der Judenfrage). It is clear that this was the conference on 6 March 1942, which was to discuss the treatment of 'half-Jews' and 'mixed marriages'. Ficker at that time was Kabinettsrat in the Reich Chancellery, which he had joined at the beginning of the Second World War. Previously, he had been a senior official (Ministerialrat) in the Ministry of Justice. According to his testimony, Ficker totally rejected the proposals to be discussed at the 6 March 1942 meeting and refused to represent the Reich Chancellery. Instead, a junior official in the Reich Chancellery, Boley, was sent to the conference. Boley was indeed present at the conference on 6 March 1942.36 State Secretary Kritzinger, as Ficker testified on 20 December 1946, strictly instructed Boley Further testimony by Ficker makes it clear that all that was discussed between Lammers and Hitler, and subsequently Lammers and Schlegelberger, was the issue of 'half-Jews' and 'mixed marriages'.

22. Once Boley reported back to the Reich Chancellery with the results of the conference on 6 March 1942, Ficker stated on 19 February 1947, 'Lammers went straightaway to Hitler and said, this proposal has been put forward, that won't do, we must postpone this matter. And thereupon he came with an instruction from Hitler to postpone the whole matter to the end of the war.'38 Ficker supplied more detail about the context in his testimony on 11 June 1947. After the conference on 6 March 1942, Boley returned to the Reich Chancellery and

22. [sic] Boley also testified about the aftermath of the conference on 6 March 1942:

22. [sic] What these testimonies show, despite their various internal inconsistencies and the various self-serving statements put out by these witnesses, is that if one accepts the view that it dates from the Spring of 1942, then it is very likely that the document in question ('Schlegelberger memorandum') is Schlegelberger's record of a meeting with Lammers, which took place in the wake of the conference on 6 March 1942, and dealt with Schlegelberger's opposition to certain proposals regarding 'half-Jews' and 'mixed marriages'. However Ficker's claim that Hitler made a direct decision of the issue is implausible in the light of the document's failure to record such a decision.

23. [sic] How can we explain Hitler's uncertainty and ambivalence regarding 'half-Jews' and 'mixed marriages'? There can be no doubt that Hitler was very hostile   towards 'half-Jews'. Already in Mein Kampf, he had made tasteless remarks about 'cross-breeding' and 'bastards', and in spring and summer 1942 his attitude towards the Mischlinge clearly became more radical. In June and July 1942 he repeatedly complained that various agencies used excessively 'mild criteria' in assessing 'half-Jews'. On 10 May 1942, he told General Jodl that

24. [sic] At the same time, Hitler was apparently not prepared simply to brush aside the criticisms uttered by the Ministry of the Interior and the Ministry of Justice and follow the demands by the party radicals to include most 'half-Jews' and Jews in 'mixed marriages' in the extermination ('expulsion') programme. There are numerous possible reasons for this. Hitler repeatedly chose not to interfere with internal conflicts between different agencies of the Nazi dictatorship, in an attempt to avoid association 'with possible unpopular policy options'.42 This may   have been an instance of such a refusal. He also probably wanted to avoid causing unrest among the non-Jewish relatives or partners of the Jews involved. Unlike those Germans classified as 'full Jews', the 'half-Jews' and Jews in 'mixed marriages' were not yet totally cut off from the rest of the German population, as they still often had one parent classified as German, or were married to a German partner. That these 'Aryan' Germans would not necessarily allow deportations to go ahead without resistance was powerfully confirmed in the famous Rosenstrasse incident in February 1943, when a large crowd of 'Aryan' German women successfully staged a public demonstration to force the release of some two thousand of their arrested Jewish husbands and even the return of a handful who had already been sent to Auschwitz.43

25. [sic] In fact, Hitler failed to issue an authoritative order that discussion of the issue should be postponed. After all, Lammers in his discussions with Schlegelberger did not claim to have actually spoken to Hitler about the different proposals made regarding 'half-Jews' and Jews in 'mixed marriages'. All Lammers stated was that Hitler in the past had repeatedly said that a decision in the matter should be postponed until after the war. As Hitler did apparently not make any clear decision in Spring 1942, the discussions continued throughout Summer and Autumn 1942. On 16 July 1942, Alfred Meyer, an official in Rosenberg's Reich Ministry for the Occupied Eastern Territories, sent a letter regarding the status of 'half-Jews' to various state and party agencies, which had been involved in the discussions that same spring. At a conference in the Ministry for the Occupied Eastern Territories, several state and party officials had already proposed on 29   January 1942 that in Czechoslovakia, Romania, Croatia, the General Government and in the occupied Eastern territories all 'half-Jews' and non-Jewish wives married to Jews were to be classified as Jews.44 In the letter of 16 July 1942, the Ministry for the Occupied Eastern Territories informed the other officials that it proposed that a 'decision of the Führer' be requested regarding the different proposals made for the treatment of 'half-Jews' at the conference on 6 March 1942. In this context, Himmler wrote ten days later to the Head of the SS Main Office, Gottlob Berger. While Jews were all to be exterminated, no binding decision should be made about the definitions (and thus the status of the 'half-Jews'):

27. [sic] However, this did not put an end to the issue. On 27 October 1942, yet another conference took place in the Reich Security Head Office, under the heading 'Final Solution of the Jewish Question' (Endlösung der Judenfrage). Like the meeting on 6 March 1942, it was entirely devoted to the issue of 'half-Jews' and 'mixed marriages', and included no less than eight of the participants of this earlier conference, including Boley and Massfelder. Regarding 'half-Jews', the participants were informed that  

28. [sic] Yet, this programme was never implemented and the issues were never resolved. As a consequence, most Mischlinge, as well as many Jews in mixed marriages, survived the war.