In reply to a question on how to respond to Holocaust denial, I answered

At the Nuremberg trials the holocaust was one of the indictments. None of the defendants pretended that the holocaust had not happened, because this was not credible, and they didn't want to concede that the holocaust was wrong.

However, I wonder if I might have mistaken their reasons for not pursuing holocaust denial as a legal argument.

I read the Charter of the International Military Tribunal, the foundational text for the Nuremberg trial. In Article 21, it says

The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.

So, does this mean that the defendants were not allowed to question that millions of people were killed in the holocaust? Was this one of the 'facts of common knowledge'?

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    Could the downvoter explain please? Why isn't this a good question? – Ne Mo Dec 22 '16 at 18:22
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    Not one of the close voters, but what is "allowed" supposed to mean? Of course defendants even in a mock trial are normally "allowed" to claim whatever they want to, which includes accusing the plaintiff of misrepresenting the facts. – Peter Dec 23 '16 at 10:47
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    I mean did they (the judges) accept 'there was a holocaust' as a point of fact which could be contested? Or would they refuse to debate that at all? If someone was accused of (say) robbing a bank, it would be a valid legal defence to say that no bank robbery actually occurred. This may be a good or bad strategic option, and trying to claim the holocaust didn't happen would have been a bad option... but was it an option at all? – Ne Mo Dec 23 '16 at 14:28
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    Regarding your second-to-last question; apart from the nearly 6 million Jews, approximately 5.7 million Soviet civilians, 3 million Soviet prisoners of war, 1.8 million ethnic Poles, Ukrainians and Belarussians, 400,000 Yugoslavians, 270,000 disabled people, 220,00 Romani, 200,000 freemasons, 25,000 Slovenes, 15,000 homosexuals, 7,000 Spanish republicans, 5,000 Jehova's witnesses and many others were killed in the Holocaust. My point being that roughly 17 million people were killed in the Holocaust. – Servaes Dec 25 '16 at 2:31
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    @Servaes 17 ?! Last time I looked it up the estimate was in the range of ~ 10 million total. Where do you have this number ? Remember that people may have several identities: Polish & Jewish is not exclusive. – Thorsten S. Dec 28 '16 at 18:32

Theoretically, yes they were. The first law against Holocaust denial in Germany was passed in 1960, some time after the Nuremberg trials had taken place. As tall an order as it may have been for people to pretend that they hadn't known about something that even many civilians watching the trials knew about, to pretend that it hadn't happened at all would have been absurd.

Even after 1960, it wasn't a piece of legislation that prevented perpetrators from telling this lie. In the famous trials of those who worked in the Operation Reinhard death camps, for example, the amount of evidence that concerned what the camps were for was insuperable. What remained was for them to claim that they were not there at that time, that they actively shirked their responsibilities or that they acted out of fear for their own lives.

These claims were also thrown out of court, but the nature of the West German judicial system was such that the "real perpetrators" were people like Hitler and Goebbels, and Himmler, etc. The most these people could expect to receive was a few years for aiding and abetting. (Josef Oberhauser, for example, was found guilty for the murder of over 100,000 people and received 4.5 years in prison).

The reason for this is that a substantial portion of the German judiciary (and constabulary as well, for that matter) were suspect, and needed to be immune from prosecution. Somebody, after all, had to run the country. It might be one thing to suppose that a defendant could have told such a whopping lie to a journalist, but to tell judges, prosecutors and witnesses something that flies in the face of their own lived experience would have been unheard of. No easier, in other words, than to say that there had never been a war in the first place.

For more information see Michael Bryant, Eyewitness to Genocide: The Operation Reinhard Death Camp Trials, 1955-1966

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    Nice to see there's another Mi Yodeyan here. :) – ezra Nov 8 at 18:32

Edit: Yes, they could have denied it if they'd wanted to - there was no law against it at the time - but none of them did in their defences to the charges. Using a defence that can readily be demolished by the prosecution when you're on trial for your life is not sensible.

Edit: There was plenty of German documentation available, plus testimony from participants. For example, Rudolf Höss testified:

I commanded Auschwitz until 1 December 1943, and estimate that at least 2,500,000 victims were executed and exterminated there by gassing and burning, and at least another half million succumbed to starvation and disease, making a total of about 3,000,000 dead. This figure represents about 70% or 80% of all persons sent to Auschwitz as prisoners, the remainder having been selected and used for slave labor in the concentration camp industries. Included among the executed and burnt were approximately 20,000 Russian prisoners of war (previously screened out of Prisoner of War cages by the Gestapo) who were delivered at Auschwitz in Wehrmacht transports operated by regular Wehrmacht officers and men. The remainder of the total number of victims included about 100,000 German Jews, and great numbers of citizens (mostly Jewish) from Holland, France, Belgium, Poland, Hungary, Czechoslovakia, Greece, or other countries. We executed about 400,000 Hungarian Jews alone at Auschwitz in the summer of 1944

Edit: Now, he may have been wrong about exact numbers, but this was the information available at the time. I believe some of the persons tried at Nuremberg tried to deny they had knowledge of the Holocaust, but the documentation undermined several of their cases.

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    Yes, but were they allowed to? – Ne Mo Dec 22 '16 at 20:15
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    Well, if it was one of the "facts of common knowledge" there would presumably not have been testimony about it. I've read a few books about the trial, and don't recall this being an issue. For a definitive answer, you probably need to read the transcripts of the trial. Note also that holocaust denial in anything like today's form doesn't seem to have begun until the early 1960s. – John Dallman Dec 22 '16 at 20:57
  • I am not seeing any official death toll figures anywhere near 3 million for Auschwitz (most of them seem to hover somewhere around 1 million). I guess this means that experts now consider his testimony false or highly unreliable? Maybe, it would be good to show that at the time he was believed, and his statement were used as proof of this common knowledge. Or use another quote that has not been proven a lie. – Jonathon Dec 22 '16 at 23:25
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    @JonathonWisnoski During the trials and some time later it was falsely assumed that Auschwitz was the only extermination camp and they also knew that it must be something around 3 million. For this reason the old plaque in Auschwitz mentioned 4 million victims (not only Jews) which was replaced 1990 by the more accurate account of 1.5 million victims. Only after the discovery of the other extermination camps who were successfully destroyed (Treblinka nearly as worse as Auschwitz, Chelmo, Majdanek, Sobibor and Belzec) it was clear where the other victims were killed. – Thorsten S. Dec 22 '16 at 23:36
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    @JonathonWisnoski According to Broszat, Martin: Kommandant in Auschwitz, p.251 Höß corrected later in his autobiography the number of 2,5 millions: The number of 2.5 million admitted jews in Auschwitz was given by me in former interrogations.This number was from Eichmann who gave it to me shortly before the surrounding of Berlin when he was requested the RFSS[...].I think that the number of 2.5 million is too high, I did not know the full number and I had no basis to quote them. – Thorsten S. Dec 23 '16 at 3:44

Yes, they were able to deny the Holocaust.

First every party was asked before the trial if they consider themselves guilty or innocent and everyone declared himself innocent.

Julius Streicher, who were responsible for the Stürmer, a propaganda pamphlet, said first that he did not knew that Jews were killed and when the prosecutor was able to prove that he read passages where the killings were clearly stated, he said that he did not believe the passages. He also interrupted the trial several times with diatribes.

The reason why the other accused did not try to deny the Holocaust was that for one time they were aware that there was much evidence left. Another reason was that they were aware that the Nuremberg trials were not very lawful by inventing new laws, applying them "ex post facto", excluding the jury from the laws and redefining evidence as "what I like to believe".

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    Can you expand on your last point. As it stands written, it doesn't make any sense at all. – user12566 Dec 25 '16 at 3:27
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    @C.M.Weimer The Nuremberg trials came for some withering criticism, like the extreme type of hypocrisy it displayed (The Soviets were shielded from prosecution; In fact they were the prosecutors, in spite of having been equally if not more culpable in certain areas. The Katyn massacre doesn't ring a bell for anyone?) and other problems which you are welcome to read about. – Iwillnotexist Idonotexist Dec 25 '16 at 8:17
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    @IwillnotexistIdonotexist The problem isn't my understanding of history, it's my understanding of the grammar, syntax, and brevity of language of ThorstenS.'s final sentence. – user12566 Dec 25 '16 at 16:28
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    @C.M.Weimer I expand it to two sentences: If you are before a kangaroo court, you are thinking twice what exactly you are saying and if you say anything at all. The Nuremberg trials were a kangaroo court because they invented new laws (London charter: conspiration, crimes against peace, crimes against humanity). The new laws were applied "ex post facto" (retroactively), the London charter was created after end of war. The jury was excluded from the application of their new laws (Katyn, Briand-Kellog, Finland attack). See Article 21 above for "what I like to believe". How should I write it ? – Thorsten S. Dec 28 '16 at 17:52
  • @ThorstenS. That's much, much clearer, thanks! A short explanation of Article 21 would be ideal for SE, but the writing makes sense now. – user12566 Dec 28 '16 at 19:14

There is a small conflation in the original question, the other important fact to remember is that a great deal of evidence was provided by the US Army in the form of affadavits and film footage. Some of this can be found on YouTube. The originals are held by the National Archives. At the time of the Nuremburg trials a fully informed count of how many people were killed in the camps and mass murder events was impossible to ascertain. The number of work camps where people were worked to death numbered in the hundreds. These were not the major killing centers like Bergen-Belsen and Auschwitz, they were scattered all over occupied Europe; Poland, Norway, Holland, Belgium, Germany, and France all had work camps. When someone became to sick from starvation to work, they were either shipped to a camp or shot and buried on site. As far as the conflation in the original question. When you ask the question 'were they allowed to deny the Holocaust as part of their legal strategy' there are three components in that question:

  1. Were the defendants allowed to deny the overall Nazi government plan to kill all Jewish people in Europe?
  2. Were the defendants allowed to deny the criminal activity of mass murder which concentrated on murdering people of the Jewish faith?
  3. Were the defendants allowed to deny that it was actually a crime to carry out the mass murders because they were following the laws of their country, and their actions were legal in that context.

Of these, only the last argument was seriously attempted in court, and it was not allowed. It's called the "I was only following orders" defense, and it was thrown out. As mentioned in the previous response, attempting to deny the mass murders that were part of the Holocaust was easily shown to be perjury. As far as the Nuremburg Tribunal being tenuous; Every European society recognized the principle that it was wrong to take a life without some kind of legal finding based on the individuals' actions. So the mass murder of people without legal finding other than classifying them as non-citizens or subhuman was held to be a crime against all nations.

In answer to the question "Were the defendants at the Nuremberg Trials allowed to deny the Holocaust" there is the obvious answer: Yes, the individual plaintiffs could claim anything they wished; but as this was a military tribunal, the conventional protections offered by most modern civilian governments were largely absent. In terms of the rules by which the courts operated, claiming something so profoundly easy to refute by well documented fact was deemed a waste of resources by most judges, and similarly avoided by the defendants and their attorneys for that reason.

However, there is a third reason that has not been touched on to any major degree in the previous arguments, namely that the "Holocaust" (or "Final Solution", or whatever name you prefer) was being broadly encouraged by Hitler and his close confidants in the press and the media of the times.

In particular, there are a number of speeches (whose text still survive) made by Hitler before tens of thousands of German citizens that extolled the virtue of the "Final Solution" (although admittedly the references were sometimes oblique), and these speeches were filmed, copied, and distributed widely throughout the territories in which German citizens might find themselves. These were required viewing; to deliberately evade the various propaganda programs that touted these topics and avoid picking up the free flyers summarizing their contents was to invite close scrutiny by the SS of a kind most people preferred to avoid. Anyone conversant with the German language can view many of the most typical examples on the Web today and see this for themselves. [And yes, translations are available].

For an informed German citizen of the period to pretend subsequently that he (or she) was unaware of the general tenor of the state's widely advertised and endorsed extermination program would thus be contrary to the tenets of being a "Good German"; it would be comparable to claiming that we in the U.S. are/were today unaware of the 9/11 events at the Twin Towers.

Since such an action would be blatantly implausible and contrary to what was publicly enforced by the Nazi Party it was rarely tried -- to have done so would invite being laughed out of court, and repudiated later by one's peers.

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    Without going further how informed the German population really was (itself an interesting topic): If I follow your argumentation, it may be safely assumed that an average informed British/US citizen must know that the claim that Iraq is possessing WMDs and collaborates with al-Qaeda responsible for the 9/11 attacks was a lie ? It was circulated and debated widely (e.g. Fahrenheit 9/11), it is also accepted by Wikipedia. So if a citizen claims that he does not know it, is not interested in it and is not convinced of it, it is blatantly implausible and we can call him a liar ? – Thorsten S. Dec 24 '16 at 5:39
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    @ThorstenS. No. The WMD claim and counterclaim were not as widely circulated, and were not verifiable by citizens. On the contrary, 9/11 made news everywhere, and to deny 2957 people died and the Twin Towers were demolished, in the face of physical evidence of, and hundreds of millions of eyewitnesses to, the sudden absence of said lives and buildings from New York and its skyline, is pointless. Not even the most diehard 9/11 truthers think 9/11 didn't happen - they'll argue over its authorship. That, more than anything, illustrates how seminal 9/11 was (and why it's an apt analogy here). – Iwillnotexist Idonotexist Dec 24 '16 at 18:04
  • Back from X-mas. Many, of not most of Holocaust "deniers" show exactly the same pattern you describe: They admit that Jews were killed, but try to lower the number and/or change the cause to hunger/starvation/disease. And your claims are not valid: While Hitler talked as early as 20s of the annihilation, the Nazis were afraid that the Germans would resist mass killings (some indeed did). Therefore they slowly tightened the thumbscrews: 1933 weapon confiscation, 1935 race laws, 1938 first mass violence. 1939 then the Reichstag Speech, the begin of WWII and the setup of Jewish Ghettos..... – Thorsten S. Dec 28 '16 at 16:53
  • ....Beginning with the war a major part of men in Germany went to the front with controlled/censored letters, the women were working in factories. The extermination plan was only beginning 1941 (!) and not in Germany, but in the occupied parts of Poland. If you claim wide circulation, may I remind you that despite the Volksempfänger radios were still expensive and a prized possession in villages. So IMHO most Germans had a good idea that sth very bad was happening, but they were lacking the details, they had only gossip. So claiming what an "informed German" had to know->disagreement. – Thorsten S. Dec 28 '16 at 17:18

To add to the answer by David Lovering, see “Ach die schöne Zeiten” (ISBN: 978-3-10-039304-3), containing letters sent from the staff at the camps to their families. They were proud of themselves and boasted about the amount of humans they'd “gotten rid of”. As servaes points out; they killed 17+ million homosexuals, foreigners, communists, conservatives, jews and gypsies, most of whom had widely been considered a pest.

History has repeatedly repeated itself since, and I shall refrain from mentioning contemporary politicians describing certain ethnicities or groups of people as “a swarm” or “a pest”. In this video Stephen Fry use the Rwandan genocide instead of an example from the western world, but the topic was still considered too harsh for broadcast in his Planet Word-series (2011).

Summary: To deny the events was not even considered at the time. To hammer home Lovering's point: It equates to a person from New Jersey denying, on the 12th of September 2011, the attacks on the World Trade Center in New York that happened the day before.

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    I wrote “on the 12th of September 2001” because it's the day after the attack. The person in this example needs to be close in time to the event for my point to stand. Holocaust denial began some time after the fact. I don't have enough points to comment on the review. – Rasmus Dec 25 '16 at 17:08
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    Edits, being made by humans, are not guaranteed free of errors. You may edit it back to "12th"; I had understood your point even before. Perhaps formulate it as "denying, the 12th of September 2011, the attacks that happened the day before". – Iwillnotexist Idonotexist Dec 25 '16 at 17:16
  • Ah. I didn't know I was “qualified” to edit my answer. I took your suggestion and added the WTC. My point was simply that it's difficult to re-write history at the time of / just after the event. – Rasmus Dec 25 '16 at 19:50

Judicial Notice means that the court acknowledged certain matters sufficiently proven to be factual, therefore by taking "judicial notice" of the Holocaust the court determined that there was more than ample proof that the Holocaust did, in fact, occur and was therefore not subject to a need for further proof. In other words, it considered that there was ample evidence, documentation and proofs available that the fact of its concurrence was common knowledge with no further need to take evidence to prove its factualness. Take for example, that a certain date in a certain year was a "Tuesday", or that Christmas always occurs on Dec 25th.

The accused could deny their involvement in the Holocaust but not the fact that it occurred.

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    Judicial notice doesn't really mean they couldn't deny it had occurred. It only means that the prosecutors didn't need to prove it had happened. In theory, a defendant who had evidence to the contrary could have introduced that evidence. It's a little like if you've gotten a speeding ticket. The policeman can typically just say: "the speed limit there is 50", and the court won't require real proof of it. If you can show evidence that the speed limit is higher, you're free to do so--but where he could just make an unsupported statement, you'll probably have to provide real evidence. – Jerry Coffin Dec 26 '16 at 7:26

Only one defendant at Nuremberg, Ernst Kaltenbrunner, 2nd in command of the SS, was charged with having an operational role in the killing of Jews. He testified as follows:

http://avalon.law.yale.edu/imt/04-11-46.asp

R. KAUFFMANN: What attitude did you adopt when you heard about it?

KALTENBRUNNER: I had no knowledge of Hitler's order to Heydrich regarding the final solution of the Jewish problem at the time I took up my office. In the summer of 1943 I gathered from the foreign press and through the enemy radio...

THE PRESIDENT: This is not an answer to your question. You asked…

http://www.nizkor.org/ftp.cgi/imt/nca/supp-b/ftp.cgi?imt/nca/supp-b//nca-sb-02-kaltenbrunner.04

COL. BROOKHART: Witness after witness, by testimony and affidavit, has said that the gas chamber killings were done on general or specific orders of Kaltenbrunner.

KALTENBRUNNER: Show me one of those men or any of those orders. It is utterly impossible.

COL. BROOKHART: Practically all of the orders came through Kaltenbrunner.

KALTENBRUNNER: Entirely impossible.

You can see part of Kaltenbrunner’s testimony here, where he is accused of ordering the exection of the prisoners at Mauthausen, of course there was no order and the prisoners were not executed - Day 105 - Kaltenbrunner

https://youtu.be/gcApkZx3Ojk

Contrary to introduction to the vid , the head of the SS, Heinrich Himmler, was also captured at the end of the war. He was interviewed, Norbert Masur My Meeting With Heinrich Himmler, and said

https://archive.org/stream/NorbertMasurMyMeetingWithHeinrichHimmler/Norbert%20Masur%20My%20Meeting%20with%20Heinrich%20Himmler#page/n5/mode/2up

In order to stop the epidemic, we were forced to cremate the bodies of the many people that died of the disease. That was the reason we had to build the crematoria, and now, because of this everybody wants to tighten the noose around our neck.

He died under ‘mysterious circumstances’ before he could be put on trial.

Some of the information contained in this post requires additional references. Please edit to add citations to reliable sources that support the assertions made here. Unsourced material may be disputed or deleted.

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    I'm not sure this answers the question. – Mark C. Wallace Jul 1 at 21:44
  • Kaltenbrunner was allowed to deny his role in the Holocaust. And no one else was charged with direct participation in the Holocaust. Thus, no defendant 'confessed' to the Holocaust. – Allan Davis Jul 1 at 22:04
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    Cursory research leads me to the opposite conclusion of your first assertion. Multiple defendants were charged with crimes against humanity as detailed in other answers. The quote you provide from Kaltenbrunner demonstrates the opposite of your assertion . Kaltenbrunner does not deny the Holocaust, he denies that he had knowledge or participated. – Mark C. Wallace Jul 1 at 23:08
  • I edited the answer to say that Kaltenbrunner was the only defendant with an operational role in the killing of Jews. He was 2nd in command of the SS from Jan. 43 on and the SS administered the camps. He testified that he learned of the Holocaust from the foreign press and enemy radio. You can see part of his testimony in the video linked, where he is charged with sending an order to kill the prisoners at Mauthausen, and in fact there was no order and the prisoners were not killed. – Allan Davis Jul 2 at 0:20
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    @AllanDavis To be clear - do you want to imply that the Holocaust or at least significant parts of it did not happen? – Annatar Jul 2 at 6:53

protected by T.E.D. Nov 8 at 15:05

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