References to the Holocaust in English Law Reports

<plain_text><page sequence="1">References to the Holocaust in English Law Reports* ARON OWEN Few of those who were adults in the 1940s imagined they would live to see the attempts made by some contemporary revisionist historians to falsify or even expunge from the record events which so many have known from personal experi? ence. Such historians seem to fall broadly into two types. The more extreme group is exemplified by David Irving, Robert Faurisson, Arthur Butz and Fred Leuchter, the first of whom was fined ?12,000 in January 1993 by a German court for claiming at a meeting that there were no gas chambers at Auschwitz and that the death camp there was built as a fake. They seem to have learned from Hitler the art of the big lie, later exploited and used to devastating effect by his Minister of Propaganda, Josef Goebbels. It was outlined cynically by Hider in Mein Kampf in the following terms: 'The broad mass of a nation will more easily fall victim to a big lie than to a small one.' The second category of revisionist historians has been described by Professor Donald Cameron Watt of the London School of Economics as authors of 'counter-factual', 'what-if' or 'supposing that' types of history. The recent book, Churchill, The End of Glory, by Dr John Charmley of the University of East Anglia, for instance, argues that Churchill had the opportunity to reach peace with Hider in 1941, and had he done so would have spared Britain four years of savage warfare, saved the Empire and have ensured that this country resisted subservi? ence to America. Such counter-factual history, of course, is based on the most dubious of assumptions. Had Churchill made peace in 1941, is it probable that Hider would have honoured it? The historian Lord Dacre recendy pointed out that 'Hider never made a treaty that he did not break'. In addition, would Hitler, who in 1941 was well advanced with his plans to destroy the Jews, have stopped doing so had Churchill signed a treaty with him? It was C. P. Scott, the editor of the old Manchester Guardian who said: 'Com? ment is free but facts are sacred', words that should be engraved on the heart of every historian. English courts deal with facts proved by evidence, the admissibility of which is governed by strict legal rules. A number of English Law Reports, referring to events in Nazi Europe, and covering a wide variety of legal topics, including *An earlier version of this paper was presented to the Society on 15 July 1993. 239</page><page sequence="2">Aron Owen divorce, nullity, compensation, contract, libel and criminal law, therefore provide contemporary evidence of what was actually happening: the gradual exclusion of Jews from German and later from occupied European society by legislation, social pressure and intimidation; the wholesale confiscation of property; forced emigra? tion (in cases where other countries were willing to accept Jews); public humili? ation; internment in concentration camps; and finally extermination in death camps. A number of cases, of which three will be cited, illustrate how, in the early stages, Jews were deprived of their businesses. Frankfurter -v- W. L. Exner Ltd [1947] Ch 629 The facts recorded in the Law Report are supplemented by some background information. On 10 March 1938 German forces invaded Austria, shortly after? wards incorporated within the German Reich. Almost immediately state officials known as 'Commissars' were put in charge of all Jewish businesses in Austria. A law, signed by Nazi dignitaries including Seyss-Inquart, as Reichsstatthalter of Austria, was, as the British judge said, regarded by the Executive as eliminating the Jews from business life, even though the word 'Jew' was not mentioned. The plaintiff in the present case, Wilhelm Faulkner, was a Jew who had resided in Austria since 1931, where he carried on a leather business and acted as an agent for tanned skins and leather goods for the defendants, W. L. Exner Ltd, an English company. A Herr Schober, who was appointed Commissar over the plaintiff's business, took possession of it in April 1938, ousting the plaintiff from all control. Then, in May 1938, the plaintiff, a perfectly innocent man, was arrested and imprisoned for no other reason than that he was a Jew. At that time the plaintiff, who had a credit balance of some ?2250 with the English company, was forced by Schober to write instructing them in future to deal only with Schober, which they did. The judge described the plight of the plaintiff as follows: 'Jailed, deprived of any voice in the conduct of his business, and the appropriation of its assets without compensation, followed ultimately by permission to leave the country with nothing left to him but his life, his clothing and some furniture.' One might today reflect that he was lucky to escape with his life; but this is not relevant to the judge's considerations. He held that expulsion of a man from the direction and beneficial ownership of his business without compensation, coupled with transfer of control to the State, was confiscation which English law would not recognize. Mr Faulkner duly received his ?2250 from the English company. Novello &amp; Co. Ltd -v- Hinrichsen Edition Ltd [1951] Ch 1026 In 1939 Henry Hinrichsen and his sons were partners in a well-known firm of music publishers, C. &amp; F. Peters in Leipzig, and owned the copyright in a number of musical works, including 'Rustle of Spring' by Sinding and 'Sonatina' by Clem 240</page><page sequence="3">References to the Holocaust in English Law Reports enti. The Hinrichsen family were compelled in 1939, under the German anti Jewish legislation, to transfer the business and assets of the firm to two non-Jews, without any compensation. The father and one son, Hans, left Germany in 1940 for Belgium, where Hans died that year and his father in 1942. Another son, Max, had managed to reach England, however, and became a British citizen by naturalization. During the war, the firm C. &amp; F. Peters was regarded in this country as owned by enemy nationals. The Comptroller-General of Patents, Designs and Trade Marks made orders granting the English company, Novello &amp; Co. Ltd, a licence to publish and distribute pieces of music that included Sinding's 'Rusde of Spring' and dementi's 'Sonatina'. Max Hinrichsen claimed that following the death of his father he became the owner of the English copyright in those two pieces; and when the court upheld his claim Novello had to stop publishing them. In the course of his judgement, Lord Evershed, Master of the Rolls, described Nazi anti-Jewish laws as 'shock? ing', adding that: 'To take away from the owner's hands altogether all his rights of dealing with his own property is something which no court could accept.' Oppenheimer -v- Cattermole [1976] AC 249 This, the leading case on the present topic, concerns a Mr Oppenheimer, a Jew born in Germany in 1896, who taught at a Jewish orphanage in Bavaria from 1919 until 1939, when he was detained in a concentration camp. When he succeeded in leaving Germany for Britain, he lost all his rights as well as his German nationality. The House of Lords held that English law will not recognize foreign confiscatory laws which, by discriminating on grounds of race, religion or the like, constitute so grave an infringement of human rights that they ought not to be recognized as laws at all. Quite apart from the disruption of business life and citizenship caused by Nazi legislation, was the havoc created in family life by racial law. A number of cases will be described which reflect the impact of anti-Semitism on the private lives of its victims. Re Meyer [1971] 2 WLR 401 The issue in this case was whether Mrs Meyer was the widow of her late husband, Mr Meyer, or was his divorced wife. The case shows what happened when a German Jew married a Gentile German woman, and the terror induced by the Nazis in the years 1938-9. The judge in this case was Mr Justice Bagnal, and the facts, as found by the judge, are set out in the report from pages 403 onwards. Isaac Lobel Kurt Meyer, who was a Jew, married Gertrude Hedwig B?ttcher, who was not, in a Berlin register office on 2 July 1932, and in October 1933 their only child, Laura, was born. The Law Report includes the following passage: 'In the meantime, the Nazi regime had come into power as the government of 241</page><page sequence="4">Ar on Owen Germany. There was initiated a policy of dividing Jews from, as they were called, "Aryans" and of eliminating Jewish influence from German life. The policy intensified into persecution and culminated during the war years in "the final solution" - extermination.' The judge could not have defined the euphemistic term 'final solution' more accurately or succinctly than by the single word 'exterm? ination'. He went on to deal with the general situation in Germany in the late 1930s, and said: 'It is plain upon all the evidence and as a matter of history (and not really in dispute) that by 1938 the persecution of the Jews in Germany had reached a high degree of intensity. By the Nuremberg Laws of 1935 marriages between Aryans and Jews were prohibited. Though at first existing marriages were not affected, Aryans married to Jews were subject to discrimination.' He quoted from a Nazi propaganda document of 1938 which stated that 'The women who have not yet separated the tie with their emigrated Jewish husbands are to be considered as having become Jews in the worse sense of the word and must therefore be treated as Jews.' As to the status of the child of such a marriage - in this case Laura, the Meyers' daughter - the judge referred to the definition provided in the First Ordinance under the law on the Protection of German Blood of 14 November, 1935 8.5(2). Such a child was a 'person of mixed blood' who had to suffer discrimination in various respects: a great number of occupations were closed to her partly as a result of specific legal provisions, partly through administrative and police actions and partly through the pressure of the Nazi Party and its propaganda and general supervisory machinery. The judge said that as a result of a vast anti-Jewish pogrom in November 1938, dozens of Jews were killed in a single night and tens of thousands of males sent to concentration camps within a few days. There was a general atmosphere of lawlessness in which those who fell within the Nazi definition of Jew were terror? ized. People could be sent to concentration camps simply for not doing as the Gestapo wished; similarly an 'Aryan' married to and living with a Jew was in danger of loss of liberty or even death. The report describes how Mr Meyer managed to escape by night from Germany in August 1938 and eventually reached England. His wife, who remained with their daughter in Berlin throughout the war, was forced to divorce her husband on wholly fictitious grounds, which serve to illustrate the terror experienced by women in Mrs Meyer's position. After the war she and her daughter came to England to rejoin her husband, and the judge had no difficulty in declaring her German divorce null and void. Szechter (otherwise Karsov) -v- Szechter [1971] 2 WLR 170 This case concerned a Jewish woman, Nina Maria Szechter, who petitioned for a declaration of nullity. On 2 February 1968 she had gone through a ceremony of marriage with the respondent, Szyman Szechter, in the Mokotow prison in 242</page><page sequence="5">References to the Holocaust in English Law Reports Warsaw where she had been imprisoned for 'anti-state activity', for the sole pur? pose of gaining release from prison. In the course of his judgement Sir Jocelyn Simon, President of the Probate Divorce and Admiralty Division (now Family Division), said that 'It would be affectation to pretend that any Judge could listen to the evidence given in this case unmoved by the courage and generosity of the persons principally concerned.' The early facts of this case, as found by the judge, are set out in the report as follows: 'Nina was born in Poland on June ioth 1940. She was of Jewish parent? age, although it was only in the course of interrogation by the Polish Security Police in 1968 that she came to know this. When she was very young she was dispatched by the Germans with her mother to an extermination camp. On the way there, her mother threw her out of the railway train into the snow, hoping thereby to save her life. Her mother was successful in this object, though Nina's health was permanendy impaired by the shock and exposure, her back being injured and her fingers requiring amputation. Her mother subsequently met death in an extermination camp and her father committed suicide. Nina was rescued and brought up in Warsaw by a Mrs Karsov whom she thought to be her real mother. Mrs Karsov was a Roman Catholic and brought Nina up in that faith.' Nina's extraordinary life as set out in the Law Report illustrates official Polish discrimination against Jews - her sufferings, her ordeals and triumphs, her imprisonment and eventually her rescue by the respondent, Simon Szechter, himself a distinguished Polish historian of Jewish origin who had been blinded while fighting against the Germans. The main case that has bearing on the theme of this paper will be examined at some length. On 9 May 1991, the War Crimes Act was passed, opening the way for suspected Nazi war criminals said to be living in Britain to be tried in our courts. A trial in which the facts revealed could constitute war crimes took place at the Royal Courts of Justice in London. It opened on Monday 13 April 1964, lasted eighteen days and was tried by Mr Justice Lawton and a jury. It was not in fact a war-crimes trial, but a libel action heard in a civil court in the Queen's Bench Division in the High Court. Bering -v- Uris and Others [1964] 2 WLR 1298 (The report in the above volume relates only to questions of costs. Most of the details in the following narrative are drawn from the Law Reports in The Times of April and May 1964.) The well-known American author, Leon Uris, had written a novel entided Exodus, describing the suffering and triumphs of Jews in 20th-century Europe and the Middle East. In the few pages dealing with the Auschwitz death camp, one paragraph, consisting of just a single sentence, described human guinea-pig experiments designed to lead up to a programme of mass sterilization of Jews. The paragraph reads: 'Here [i.e. Auschwitz] in Block X, 243</page><page sequence="6">Aron Owen Dr Wirth used women as guinea pigs and Dr Schuman sterilised by castration and X-ray and Clauberg removed ovaries and Dr Dehring [spelt with an H] performed 17,000 experiments in surgery without anaesthetic.' A Dr Wladylaw Alexander Dering (spelt without an H), a general practitioner under the National Health Service, practising at 145 Seven Sisters Road, London N7, was Roman Catholic, had been born in Poland, and had qualified as a doctor in Warsaw in 1928. In June 1940 he had been arrested by the Gestapo in German occupied Warsaw and taken to Auschwitz, where he remained a prisoner from August 1940 to January 1944. While there, between 1941 and 1943, he carried out operations in an operating theatre in Block 21, and in 1944 left Auschwitz for a hospital under the direction of the Nazi SS doctor, Professor Clauberg. He was arrested by the Russians in 1945, was released and returned to Poland, but left Poland in fear for his life and reached England in 1946. In January 1947 he was taken to Brixton prison and held there for some nineteenth months, pending an investigation whether he should be extradited to Poland as a war criminal; a number of countries had asked for his extradition. In the event he was released for lack of evidence. He then worked in a London hospital as a gynaecologist and obstetrician, and later obtained an appointment with the Colonial Medical Service in Britain Somaliland where he stayed for ten years prior to practise as a doctor again in London. He had been awarded the OBE. It was this Dr Dering who said he had been libelled by Uris in his novel Exodus. He sued three defendants: Leon Uris, the author; William Kimber &amp; Co. Ltd, the publishers; and Purnell &amp; Sons Ltd, the printers. At an early stage the printers made an apology to Dr Dering, agreeing not to print any further copies of the book with the offending paragraph, and paying him ?500 in damages and an agreed sum for costs. The printers therefore dropped out of the proceedings. But the author and the publishers put in a defence claiming justification (which is a complete defence to an action for libel) but with three exceptions. Firstly, they said that while Dr Dering had carried out a large number of experimental opera? tions on both men and women, they did not seek to support the precise figure of 17,000. Secondly, they did not allege that the operations were performed entirely without anaesthetic but that only a spinal anaesthetic was used (itself causing great pain) and that this was administered without any premedication or prelimin? ary injection to deaden pain, so the subject was conscious throughout the opera? tion. And, thirdly, they admitted the operations took place not in Block 10 but in Block 21 at Auschwitz. Dr Dering's case was that, unlike the other doctors mentioned in that paragraph in the book - Wirth, Schumann and Clauberg, who were all SS doctors - he was a prisoner who had to do what he was ordered to do. If he had refused he would have been shot, sent to the gas chambers or otherwise severely punished. He added that he did his best for the unfortunate victims of the Nazi experiments. The victims, all Jews, were young girls and young men whose sexual organs had 244</page><page sequence="7">References to the Holocaust in English Law Reports been subjected to powerful X-rays to discover if such organs would thereafter function or if the subject would be effectively sterilized. Dr Dering said he carried out operations to remove irradiated ovaries from the girls and the testicles from the young men in order for the Nazi doctors to examine them, but that there was a danger that if such X-rayed organs were left in the body they might become cancerous. If he had not done the operations - and he was a skilled gynaecological surgeon - some Nazi orderly would have done them without any skill, or the victim would have been sent to the gas chambers immediately. All the operations, he said, were carried out normally, no pain was inflicted, the girls were not crying and the wounds healed up. If the evidence at the trial had been limited to that of Dr Dering and a witness who gave evidence for him - another Gentile Polish prisoner, Dr Grabczinski, who had assisted Dering with some of the operations - it is quite probable that Dering would have succeeded in his libel action and would have been awarded huge damages. The only evidence initially available to contradict Dr Dering was the state? ment of a Dr Alina Brewda, a Jewish woman prisoner doctor at Auschwitz who said she had been present throughout all the operations carried out by Dr Dering on the girls, and that she was there to comfort them because they were terrified and screaming. Dr Dering responded by saying that he had known Dr Brewda from his student days in Warsaw and he had seen her at Auschwitz, but he denied that she was present at any of the operations, pointing out in addition that Dr Grabczinski supported his own version of events. But Dr Brewda's assertion was confirmed by the remarkable survival of an Auschwitz prison-hospital operations register, now in the National Museum at Oswiecim in Poland. Dr Dering had admitted keeping registers when he started operating in 1941 in Block 21 at Auschwitz, and the one surviving register, which was produced at the trial, contained entries written by Dr Dering in neat columns. They recorded the operation serial number, the date, the tattooed number of the prisoner, the prisoner's surname and first name, the diagnosis in Latin, the name of the surgeon, the name of any assistant or anaesthetist, the nature of the anaesthetic administered, and, finally, the nature of the operation performed. The number of the first operation entered in the surviving register in Dr Dering's handwriting was 14,139 on 22 February 1943; the last in his hand was 18,064 on 28 August 1943. It was from this register that the defence were able to gather enough evidence to trace witnesses, including some of the victims of Dr Dering's surgery who, miraculously in 1964, were still alive, and to give the jury a true and hideous picture of what was happening in 1943 in this little section of Auschwitz, where Nazi doctors were carrying out vile sterilization experiments, assisted by Dr Dering who would remove ovaries from healthy young girls and testicles from young men, all against their will. Eight of ten Jewish women from Salonika in 245</page><page sequence="8">Aron Owen Greece, on whom Dr Dering had performed ovariectomies on one day, 10 Nov? ember 1943, gave evidence; as did six men, all Jews, who had their testicles removed by Dr Dering at Auschwitz in 1943. It was a highly dramatic moment in the court when each witness rolled up a sleeve and showed the judge and jury the number tattooed on the left arm, the number corresponding with that in Dr Dering's register and their names. As Lord Gardner, who was counsel for the Defendants, said 'No one could ever forget what happened on the day on which that person had organs forcibly removed so that he or she would not ... be able to procreate children'. He described the scene as much worse than anything in Dante's Inferno. The girls were lined up in the annex to the operating theatre. Dr Dering would inject each with a spinal anaesthetic while she was forcibly held down, screaming and in great pain, by two orderlies. She was next forcibly carried into the theatre by the orderlies and strapped down on the operating table, which was tilted at an angle of about 300 with the girl's head downwards. Dr Dering made abdominal incisions and cut out the ovaries while the victim was conscious. A medical expert called by the defence, William Nixon, Professor of Obstetrics and Gynaecology at the University of London and Examiner for the Universities of London, Cambridge and Wales, examined each of the eight Jewish women who gave evidence. Two of the ten girls Dr Dering had operated on during 10 November 1943 had died soon after. One, called Bella, died in agony that night, as a result of the wounds inflicted on her. Professor Nixon said he had practised surgery in China, Africa and the Middle East but never, in all his surgical life, had he seen such scars as when he examined these eight women twenty-one years after their operations: such scarring, such deficiency, such pigmentation. It was crude, bad surgery. And completely unnecessary. He denied that cancer develops after external radiation of ovaries or testicles. Each of the women stated how their lives had been blighted, how they felt constantly ill, and how, although they had married, they could not have children. Dr Dering's excuse, that he had no choice but to obey the Nazi doctors' orders, was shown to be false by his own evidence. Dr Dering claimed that when he had been asked to administer lethal phenol injections into the hearts of some prisoners and had refused, he had been threatened with awful punishment. When Lord Gardner cross-examined him further it transpired that he had merely been con? fined to the camp for a fortnight. Dr Adelaide Hautval, the last witness called by the defence at the trial, was a devout Protestant born in France, who had qualified as a doctor in 1934. During the German occupation of France she was arrested, and was taken in 1942 to a prison in Bourges where there were a number of Jewish prisoners. When she protested to the Gestapo about the way Jews were treated she was told: 'Because you defend them you can share their lot', and was made to stitch a yellow star on her clothes and wear a band with the words: Amie desjuifs, 'Friend of the Jews'. 246</page><page sequence="9">References to the Holocaust in English Law Reports In January 1943 she was sent to Auschwitz-Birkenau, and tattooed with a number 31,802. SS Dr Wirths put her in Block 10 where there were about 100 Jewish women from France and Greece. Later convoys brought in more French, Belgian and Dutch Jewesses. Dr Hautval refused point blank to assist in any experimental operations, but was not punished for her refusal. She told SS Dr Wirths that they had no right to dispose of the life and destiny of others; and when he replied 'Can't you see these people are different from you?', she declared devastatingly: 'there are several other people different from me, starting with you.' The only laughter in court during this terrible case was when Lord Gardiner asked her rhetorically, 'And were you shot?' to which she replied, 'No'. The court heard how she told another woman prisoner doctor 'The Germans will not allow people who know what is happening here to get in touch with the outside world. So the only thing that is left to us is to behave, for the rest of the short time that remains to us, as human beings.' Dr Dering was clearly an anti-Semite. When one of the women on whom he was operating was crying and struggling in agony he struck her on the breast, and, as she later quoted from memory in court, said, Lass mich fertig mein arbeit, ver?ucte Judin [sic], 'Let me finish my work, you damned Jewess.' Moreover, throughout the trial Dering expressed not one word of regret for what he had done. The judge began his summing up in the following way: 'Members of the Jury, you and I have sat in this court now for 3! weeks and we have had to listen to evidence revealing one, and it is only one, facet of what future generations will probably come to describe as the greatest crime that has ever been committed. I have been a student of history all my life, and I cannot think of any crime that begins to compare with Auschwitz.' Yet he reminded the jury that they were not a war-crimes tribunal, but were trying a civil case according to the law of England. They retired just before noon on 6 May 1964, and returned with their unanimous verdict at 2.30pm, finding for the plaintiff, Dr Dering, and awarding him one ha'penny damages, by that time the smallest coin in the realm. This contemptuous award showed how they felt about Dr Dering's claim to have been libelled. The publishers had paid ?2 into court, and the judge ordered Dr Dering to pay all the costs of the defendants - the author and publisher - after the date of payment in, and he also had to pay his own prior costs. One year later, in July 1965, Dr Dering died of cancer. Strangely, Mr Uris did not enforce the award of costs which he obtained against Dering. But he soon after wrote a bestseller, entided QB 7 that was based on the libel action and was adapted for television in March 1972. The evidence of witnesses appears in the hundreds of column inches of the daily Law Reports in The Times during April and May 1964, and in the book written by Mavis Hill and Norman Williams, two law reporters who were present in court throughout the case, entided Auschwitz in England. 247</page><page sequence="10">Aron Owen Central to this and to other cases is the question of duress. Although Dering had claimed to have acted under duress, the judge in his summing up said: Tear was no excuse for murder... nor for doing really serious injury. Lord Gardiner was undoubtedly right when he said that people must make a stand at some time. There did come a point when you had to say, "I will die rather than do this.'" In the following case the House of Lords dealt with the issue of duress in criminal law. Regina -v- Howe, Bannister, Burke, Clarkson [1987] 1 AC 417 Their Lordships quoted Article 8 of the Charter of the International Military Tribunal of 1946 at Nuremberg: 'The fact that the Defendant acted pursuant to the order of his government or of a superior shall not free him from responsibility', and Lord Hailsham in his judgement, referring to violence against innocent vic? tims, said: 'We live in the age of the holocaust of the Jews, of international terrorism on the scale of massacre ...'. Denial of the Holocaust, and particularly denial of the specific sufferings of Jews under Nazi control before and during the Second World War, are demon strably shown to be false and repulsive when placed against true facts as found from tested evidence given in open court. These facts are recorded indelibly in the authoritative and august pages of English Law Reports. 248</page></plain_text>