THE HOLOCAUST AND THE LAW: A MODEL OF ‘GOOD HISTORY’? LYNNE HUMPHREY ROYAL HOLLOWAY, UNIVERSITY OF LONDON PhD 1 Acknowledgments I would like to formally thank Professor Dan Stone for his unwavering support, as well as patience, throughout the duration of the thesis. I would also like to thank the administration staff of both the former German department (Ann Hobbs) and the current History department for helping to facilitate the many stages of its progression. I would especially like to thank Marie-Christine Ockenden for her compassion and understanding when needing to interrupt my studies. I am grateful to the Friendly Hands Charitable Foundation. The grant awarded by this charity was essential for the research of the Ernst Zündel trials in Toronto, Canada. I am also grateful to Renu Barrett, at the ‘William Ready Division of Archives and Research Collections’ (McMasters University), Janice Rosen, at the ‘Canadian Jewish Congress Charities Commission National Archives’ (Montreal), and A.J Strauss, at the Ontario Court of Appeal, for organising access to the relevant trial transcripts, and other primary source material, on my behalf, but also for being a source of friendly contact during my visits. On a more personal note, I would not have completed the thesis without the consistent encouragement, input and practical support of close family and friends. Although inadequate as recognition of this support, a huge thank you is due to my brothers, Stephen and Nigel, and the friendships of Meeta, Cheryl, Su, Maureen, Joanne, Shamshad, Alison, Paul, Ann, Fergus and Nuala. Inspiration was also sustained by the coastline of North Shields, the country lanes of Thurgarton and the cities of Berlin, Manchester and Toronto. The thesis posed many challenges, but my only regret is that my parents, Elizabeth and Thomas Stephenson Humphrey, are not alive to see its completion. 2 Declaration of Authorship I, Lynne Humphrey, hereby declare that this thesis, and the work presented in it, is entirely my own. Where I have consulted the work of others, this is always clearly stated. 3 Abstract This thesis examines the ability of Anglo-American law to function as a method of historiography in Holocaust-related trials. It is informed by 'empiricist-analytical' (Evans) and 'narrative-linguistic' (White) genres of 'good history' and a 'consensus of critique' (Bilsky, Wilson) that explicitly identifies the history-law relationship as a flawed methodology. Applying theory to practice the thesis focuses its research on the collaborative reconstruction of specific historiographies integral to the Holocaust across the Adolf Eichmann (1961), Ernst Zündel (1985, 1988) and David Irving (2000) trials. More specifically, in response to competing demands of 'good history', the thesis identifies how historians and jurists translated the relevant traces of the past into 'credible and intelligible' accounts of (empiricist) or 'convincing representations' as (narrativist) the Holocaust regardless of the extra-historical form of legal case and context. The historiographies foregrounded are the evolution of extermination policy, the mass shootings of the Einsatzgruppen 1941 - 1942, homicidal gas chambers at Auschwitz- Birkenau, and the total number of Jewish victims. Through comparative analysis the thesis finds that the accounts/representations subsequently authorised may have been 'cooked' (Wilson) in accordance with case- specific remits but they were empirically accountable and 'truth-full' in content (McCullagh, Munslow). With few exceptions, they were also compatible across all four courtrooms and consistent with the findings of established Holocaust scholarship both past and present. In complying with the generic demands of both empiricist and narrativist theories the thesis confirms that the history-law relationship can be a model of 'good history'. However, although the stability of accounts/representations indicates the constraint of the past traces, and therefore a 'matching' function with the past (empiricist), the research confirms the primacy of its 'making' function (narrativist) as the past. The thesis concludes that the methodology and outputs of the history-law relationship are most appropriately explained through the lens of the 'narrative-linguistic' genre. 4 Contents Introduction and Methodology .......................................................................................... 6 Legal Contexts ............................................................................................................ 10 Primary Source Material ............................................................................................. 22 Chapter Plan ................................................................................................................ 27 Chapter One. Empiricist and Narrativist Historiography: Contested Genres of 'Good History' ............................................................................................................................ 32 Chapter Two: History and Anglo-American Law: A Unique but Flawed Relationship? ......................................................................................................................................... 58 Chapter Three: Holocaust-Related Trials: A Comparative Base of Disciplinary Collaboration ................................................................................................................... 91 Chapter Four: The Evolution of Extermination Policy ................................................. 140 Chapter Five: The Einsatzgruppen Mass Shootings 1941 – 1942 ................................ 164 Chapter Six: Homicidal Gas Chambers at Auschwitz-Birkenau .................................. 188 Chapter Seven: The Total Number of Jewish Victims ................................................. 222 Conclusions ................................................................................................................... 241 Bibliography .................................................................................................................. 258 Primary Sources ........................................................................................................ 258 Secondary Sources .................................................................................................... 259 5 Introduction and Methodology This thesis is a study of history and Anglo-American law as collaborative genres about 'the past'.1 Informed by contemporary critiques of both the realist foundations of historical scholarship, and the capacity of the law to do justice to its craft, it investigates if and how disciplinary collaboration in the courtroom constitutes a model of 'good history'.2 Interest in the concept of 'good history' originates in the author’s initial unease with the implications of a particular set of theories critical of the prevailing Rankean-based ('empiricist-analytical') genre of history-making.3 Incorporated within the broader cultural, political and social configuration of the 'postmodern', these theories revisit familiar antagonisms long identified between empiricist and relativist perspectives of knowledge production. But, informed by the cultural and linguistic 'turns', the challenge to history has been identified as much wider and more thoroughgoing than its predecessors, making the 'point again in new and urgent ways’ and strengthening 'the hand of the sceptics'.4 Established critiques of the truthful foundations of Rankean scholarship have subsequently been reaffirmed by voices that emphasise the fictive, 'netted' and present-centric nature of its specific form of 'historying'.5 Most critically, in contrast to the persistent 'presence' of the past defining and privileging this scholarship, these voices insist that 'the past' is not only ontologically distinct, and therefore inaccessible, but inevitably preconceived and prefigured ‘as a story of a particular kind’, as well as 'linguistically-turned' into familiar plot-lines that ‘float free’ of its remaining 1 The concept of genre' is understood as the conventions and rules of thinking and practice relating to each discipline, Robert Eaglestone, The Holocaust and the Postmodern (Oxford: Oxford University Press, 2004), p6. Reference to 'history' relates to the academic discipline and its scholarship. 2 For the purposes of the thesis ‘good history’ refers to its academic form and relates to claims made during both the ‘postmodern challenge’ and the trial instigated by David Irving in 2000 that there can be ‘bad’ histories if not following the conventions and rules of academic scholarship, in other words, the conventions and rules of the ‘empiricist-analytical’ genre. 3 Alun Munslow, 'On “Presence” and conversing with the past: do historians communicate with the past?', Rethinking History, 18:4 (2014), p570. 'Empiricist-analytical' in accordance with the generic conventions and rules of the Rankean form as evidence based and deductive, Alun Munslow, 'Facts to fight over' in The Guardian, 6 February 2001. 4 Robert Eaglestone, Postmodernism and Holocaust Denial (Cambridge: Icon Books, 2001), p35; John Tosh, The Pursuit of History: Aims, Methods and New Directions in the Study of Modern History (6th edn.) (Abingdon: Routledge, 2015), p165. For an overview of 'postmodern' thinking see Jean-François Lyotard, The Postmodern Condition: A Report on Knowledge (Manchester: Manchester University Press, 1984); Roy Boyne and Ali Rattansi (eds.), Postmodernism and Society (London: Palgrave Macmillan,