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Subject: Irving v. Penguin & Lipstadt: Judgment XIII-01
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Keywords: David Irving libel action Deborah Lipstadt

Archive/File: people/i/irving.david/libel.suit/judgment-13.01
Last-Modified: 2000/04/11

XIII. FINDINGS ON JUSTIFICATION

Scheme of this section of the judgment

13.1 The charges levelled at Irving's historiography appear to me to lie
at the heart of what Lipstadt wrote about him in Denying the Holocaust.
I propose therefore to consider first whether the Defendants have made
good their claim that, in what he has written and said about the Third
Reich, Irving has falsified and misrepresented the historical evidence.

13.2 There are several aspects to this. The falsification and
misrepresentation alleged by the Defendants relate to (a) the specific
individual criticisms of Irving's historiography which are addressed in
section V above; (b) his portrayal of Hitler, which is dealt with at
section VI; (c) his claims in relation to Auschwitz covered in section
VII and, finally, (d) the bombing of Dresden which is dealt with in
section XI.

13.3 The question which I shall have to decide is whether the Defendants
have discharged the burden of establishing the substantial truth of
their claim that Irving has falsified the historical record. In this
connection I should repeat the caveat expressed at the beginning of this
judgment: the issue with which I am concerned is Irving's treatment of
the available evidence. It is no part of my function to attempt to make
findings as to what actually happened during the Nazi regime. The
distinction may be a fine one but it is important to bear it in mind.

13.4 If the charge of misrepresentation and falsification of the
historical evidence is substantially made out, there remains the
question whether it was deliberate. Irving rightly stresses that the
Defendants have accused him of deliberately perverting the evidence. For
their part the Defendants recognise that it is incumbent on them to
establish, according to the appropriate standard of proof, that the
misrepresentation and falsification were motivated by Irving's
ideological beliefs or prejudices. In this context, I shall consider the
submission made by Irving that he has been guilty, at worst, of making
errors in his handling of the historical record. As I will explain in
assess Irving's motivation, I will also take into account the evidence
of the public statements by Irving in which he allegedly denied the
Holocaust; the evidence upon the basis of which the Defendants accuse
him of anti-semitism and racism and the evidence of his alleged
association with right-wing extremists.

13.5 That leaves the questions which arise out of Irving's visits to the
Moscow archive in 1992 to inspect the Goebbels's diaries, namely whether
he broke an agreement with the Russians by removing glass plates from
the archive and whether he put the plates at risk of damage.

13.6 Finally, depending on my decisions on the issues to which I have
already referred, it may be necessary to consider the relevance, if any,
to my finding on the defence of justification of the imputations in
Denying the Holocaust which the Defendants have either failed or not
sought to justify. I shall also determine, if the need arises, whether
the Defendants are entitled to pray in aid the provision of section 5 of
the Defamation Act.

The allegation that Irving has falsified and misrepresented the
historical evidence

Irving the historian

13.7 My assessment is that, as a military historian, Irving has much to
commend him. For his works of military history Irving has undertaken
thorough and painstaking research into the archives. He has discovered
and disclosed to historians and others many documents which, but for his
efforts, might have remained unnoticed for years. It was plain from the
way in which he conducted his case and dealt with a sustained and
penetrating cross-examination that his knowledge of World War 2 is
unparalleled. His mastery of the detail of the historical documents is
remarkable. He is beyond question able and intelligent. He was
invariably quick to spot the significance of documents which he had not
previously seen. Moreover he writes his military history in a clear and
vivid style. I accept the favourable assessment by Professor Watt and
Sir John Keegan of the calibre of Irving's military history (mentioned
in paragraph 3.4 above) and reject as too sweeping the negative
assessment of Evans (quoted in paragraph 3.5).

13.8 But the questions to which this action has given rise do not relate
to the quality of Irving's military history but rather to the manner in
which he has written about the attitude adopted by Hitler towards the
Jews and in particular his responsibility for the fate which befell them
under the Nazi regime.

The specific historiographical criticisms of Irving

13.9 As appears from section V above, the Defendants have selected
nineteen instances where they contend that Irving has in one way or
another distorted the evidence. Having considered the arguments, which I
have summarised at some length, I have come to the conclusion that the
criticisms advanced by the Defendants are almost invariably well-
founded. For whatever reason (and I shall consider later the question of
Irving's motivation), I am satisfied that in most of the instances cited
by the Defendants Irving has significantly misrepresented what the
evidence, objectively examined, reveals.

13.10 Whilst it is by no means a conclusive consideration, it is right
that I should bear in mind that the criticisms which the Defendants make
of Irving's historiography are supported by the evidence of historians
of the greatest distinction. They are set out (along with many other
similar criticisms that the Defendants have not pressed in the
submissions made in these proceedings) in the meticulous written report
of Evans, who is himself an historian of high standing. In the course of
his prolonged cross-examination, Evans justified each and every one of
the criticisms on which the Defendants have chosen to rely. In several
instances his criticisms were supported by the Defendants' other
experts, van Pelt, Browning and Longerich. I am satisfied that each of
them is outstanding in his field. I take note of the fact that the
expert witnesses who were summoned by Irving to give evidence on his
behalf did not in their evidence dispute the validity of the points made
by Evans; nor did they seek to support or justify Irving's portrayal of
Hitler.

13.11 Whilst I take account of the standing of the witnesses who have
spoken to the criticisms of Irving as an historian, I must arrive at my
own assessment of the evidence relating to the nineteen instances relied
on by the Defendants. In doing so, I have well in mind that many of the
documents which I will need to analyse were chosen by Irving himself
because they demonstrate, according to him, that Hitler was a friend of
the Jews. Having set out the arguments at length in section V above, I
am able to express my conclusions more succinctly than would otherwise
have been the case. Whilst I will not attempt to address every argument
that has been mounted, I will indicate in each case the reasons why I
have concluded that Irving has misrepresented the evidence.

Hitler's trial in 1924 (paragraphs 5.17-28 above)

13.12 I am satisfied that in Goering and to a lesser extent in Hitler's
War, Irving misrepresents Hitler's role in the putsch. The evidence does
not support the claim that Hitler was seeking to maintain order. Irving
embroiders the incident when the ex-Army lieutenant is disciplined in
such a way as to present Hitler as having behaved responsibly. But the
evidence of Hitler's role in the putsch suggests otherwise. Irving ought
to have appreciated that Hofmann's allegiance to Hitler rendered his
testimony untrustworthy.

Crime statistics for Berlin in 1932 (paragraphs 5.29-36 above)

13.13 In my judgment it is a valid criticism of Irving that he chose to
cite, without qualification, the claim made by Daluege, a committed
Nazi, that in 1930 a strikingly large proportion of the offences of
fraud were committed by Jews. Daluege's enthusiastic membership of the
Nazi party together with his activities on the Eastern front during the
war should have led Irving to doubt any pronouncement of his affecting
the Jews. Whilst I am sympathetic to Irving's handicap in being unable
now to obtain access to documents in the German archives, I am not
persuaded that there exist documents which justify Irving in quoting
without any reservation the claim made by Daluege.

The events of Kristallnacht (paragraphs 5.37-72 above)

13.14 It was, I believe, common ground between the parties that
Kristallnacht marked a vital stage in the evolution of the Nazis'
attitude towards and treatment of the Jews. It was the first occasion on
which there was mass destruction of Jewish property and wholesale
violence directed at Jews across the whole of Germany. As an historian
of the Nazi regime, it was therefore important for Irving to analyse
with care the evidence how that violence came about and what role was
played by Hitler.

13.15 Readers of the account in Goebbels of the events of 9 and 10
November 1938 were given by Irving to understand that Hitler bore no
responsibility for the starting of the pogrom and that, once he learned
of it, he reacted angrily and thereafter intervened to call a halt to
the violence. I accept the evidence of Evans and Longerich that this
picture seriously misrepresents the available contemporaneous evidence.

13.16 Irving's endeavour to cast sole blame for the pogrom onto Goebbels
is at odds with the documentary evidence. Goebbels's diary entry for 9
November, the telegram sent by Muller at 23.55 that night and the
message despatched by Bohmcker all suggest that Hitler knew and approved
of the anti-Jewish demonstrations. Given the significance of the events
of Kristallnacht, an objective historian would in my view dismiss the
notion that Hitler was kept in ignorance until a relatively late stage.
Yet Irving pays little attention to the evidence which implicates
Hitler. He gives a misleading and partial account of Goebbels's diary
entry. I cannot accept Irving's explanation for his omission to refer to
Muller's telegram and Bohmcker's message, namely that they add little,
for both lend support to the thesis that Hitler knew and approved of the
violence. Irving also omits to refer to the statement contained in the
report of the internal party enquiry into the events of Kristallnacht
that Goebbels had claimed in his speech at the Old Town Hall that Hitler
had been told of the burning of Jewish shops and synagogues and had
decided that such spontaneous actions should continue.

13.17 Irving's account of Hitler's reaction upon hearing (for the first
time, according to Irving) of the violence is heavily dependent on what
Irving was told by Hitler's adjutants many years after the event. Whilst
Irving is to be commended for his diligence in tracing and interviewing
these witnesses, there is in my judgment force in the Defendants'
contention that Irving is unduly uncritical in his use of their evidence
especially when it runs counter to the evidence of contemporaneous
documents. I do not suggest that Irving should have discounted
altogether the evidence he obtained from Bruckner, Schaub, von Below,
Hederich and Futkammer. But in my view he ought to have approached their
accounts with considerable scepticism and rejected them where they
conflict with the evidence of the contemporaneous documents both before
and after 1am on 10 November. That documentary evidence is, as Irving
should have appreciated, inconsistent with the notion that Hitler was
angry when he first heard of the destruction of Jewish property which
was in progress. To write, as Irving did, that Hitler was "totally
unaware of what Goebbels had done" is in my view to pervert the
evidence.

13.18 In my judgment the account given by Irving of the interventions by
Nazi leaders during the night of 9/10 November distorts the evidence.
Irving's interpretation at p276 of Goebbels and in his evidence in these
proceedings of the telex sent by Heydrich at 1.20am on 10 November is
misconceived. The terms of the telex demonstrate, in my view, that
Heydrich was not seeking to protect Jewish property but rather was
authorising the continuation of the destruction save in certain narrowly
defined circumstances. Similarly I accept the evidence of Evans that the
telex sent by Hess at 2.56am on 10 November (which, it is agreed,
emanated from Hitler) was not a general instruction to "halt the
madness" but rather to stop acts of arson against Jewish shops and the
like, so permitting other acts of destruction to continue and Jewish
homes and synagogues to be set on fire. Furthermore Irving should at the
very least have doubted the claim by Wiedemann that Goebbels spent much
of the night making telephone calls to stop the most violent excesses.
The claim that during that night Hitler did everything he could to
prevent violence against the Jews and their property is in my judgment
based upon misrepresentation, misconstruction and omission of the
documentary evidence.

The aftermath of Kristallnacht (paragraphs 5.73-89 above)

13.19 Notwithstanding Irving's argument, I am unable to detect any
evidence that Goebbels felt apprehensive when he went to see Hitler on
the morning of 10 November. It is in my judgment inconsistent with the
evidence of what Hitler had ordered in the course of the previous night.
Goebbels' diary entry about his meeting with Hitler at the Osteria is
clear evidence of Hitler's approval of the pogrom. Irving very properly
quotes the entry but immediately follows the quotation with the
categorical assertion that Goebbels was making a false claim in his
diary about Hitler's approval. I do not accept that the available
evidence justifies Irving's dismissal of this diary entry by Goebbels.

13.20 I accept the evidence given by Evans that Irving's account of the
investigation into the events of Kristallnacht and such disciplinary
action was taken thereafter fails lamentably to reveal to his readers
how much of a whitewash it was. I have summarised in paragraphs 5.79 and
5.80 above the evidence of the cursory investigation and the derisorily
inadequate disciplinary action taken. Irving, in Goebbels, ignores these
deficiencies.

The expulsion of Jews from Berlin in 1941 (paragraphs 5.90-110 above)

13.21 The Defendants advance two criticisms of Irving's treatment of
Himmler's note of his conversation with Heydrich on 30 November 1941. In
my view both criticisms are justified. The first is that Irving was
wrong in his claim that the instruction Keine liquidierung (no
liquidation) was intended to apply to Jews generally. Irving
acknowledged that the inclusion in Himmler's note of the words "aus
Berlin" is clear evidence that the instruction relates solely to Jews
being deported from Berlin and not to Jews from elsewhere. After some
prevarication during the trial, Irving also accepted that he was
mistaken when he read Judentransport (in the singular) as referring to
Jewish transports (in the plural). The second criticism (which is more
important for the purpose of this case) is that Irving is in error when
he claims that the instruction not to liquidate the Jews on that
transport emanated from Hitler. There is no evidence that Hitler
"summoned" Himmler to his headquarters and "obliged" him to telephone to
Heydrich an order that Jews were not to be liquidated.

13.22 Whilst I accept that an historian is entitled to speculate, he
must spell out clearly to the reader when he is speculating rather than
reciting established facts. In Hitler's War (1977 edition) Irving
presents Himmler's note as "incontrovertible evidence" that Hitler
issued a general order prohibiting the liquidation of Jews. The evidence
from Wisliceny and Greiser, which is not mentioned by Irving, supports
the view that Hitler was complicit in the deportation and killing of
Jews in 1941. I do not accept Irving's argument that the evidence of the
summoning of Jeckeln to Berlin and the reference in Himmler's diary for
4 December 1941 to "guidelines" amount to evidence from which it is
reasonable to infer that there was a general prohibition in force at
this time against the killing of all European Jews.

13.23 In regard to Himmler's log for 1 December 1941, his manuscript is
difficult to decipher. Irving claimed that that was the reason why he
misread "haben" as "Juden". Be that as it may, Irving accepted that he
misrepresented this document. I do not accept that the error is
immaterial: if it ordained that Jews were to remain where they were, out
of harm's way, it would have given protection to a very large number of
Jews whose lives were in jeopardy if they were moved elsewhere. But, as
Irving accepts, that was not what Himmler was ordering.

The shooting of the Jews in Riga (paragraphs 5.111-122)

13.24 An objective historian is obliged to be even-handed in his
approach to historical evidence: he cannot pick and choose without
adequate reason. I consider that there is justification for the
Defendants' complaint that Irving was not even-handed in his treatment
in Hitler's War of the account given by General Bruns of the shooting of
thousands of Jews in Riga. Irving appears readily to accept that part of
Bruns's account which refers to Altemeyer bringing him an order which
prohibited mass shootings from taking place in the future. On the other
hand Irving takes no account of the fact that, according to Bruns, it
was only shootings "on that scale" which were not to take place in
future. (A total of 5,000 Jews were shot in Riga on 30 November 1941).
Nor does Irving mention that the order apparently stated that the
shootings were to be carried out "more discreetly". In other words the
shooting was to continue. Moreover Irving ignores Bruns's earlier
reference to Altemeyer telling him of an order that the Berlin Jews were
to be shot in accordance with Hitler's orders. My conclusion is that in
these respects Irving has perverted the sense of Bruns's account. I was
unpersuaded by the explanation offered by Irving for his treatment of
this evidence.

13.25 There is a related criticism made by the Defendants in relation to
the Riga shooting, namely that Irving suppressed the evidence of the
widow of Schultz-Dubois about Hitler's reaction to a protest about the
shooting. I am not satisfied that this criticism is made out. In the
first place I am not persuaded by the evidence that at the material time
Irving was aware of the account of Frau Schultz-Dubois: he testified
that he had not read the relevant passage in Professor Fleming's book.
In the second place, I take the view that the nature of the evidence was
such that Irving was entitled to discount it: it was at least third-hand
and emanated from Admiral Canaris who was anti-Nazi and no friend of
Hitler.

Hitler's views on the Jewish question (paragraphs 5.123-150 above)

13.26 Irving's submissions on this topic appear to me to have a distinct
air of unreality about them. It is common ground between the parties
that, until the latter part of 1941, the solution to the Jewish question
which Hitler preferred was their mass deportation. On the Defendants'
case, however, from the end of 1941 onwards the policy of which Hitler
knew and approved was the extermination of Jews in huge numbers. Irving
on the other hand argued that Hitler continued to be the Jews' friend at
least until October 1943. The unreality of Irving's stance, as I see it,
derives from his persistence in that claim, despite his acceptance in
the course of this trial that the evidence shows that Hitler knew about
and approved of the wholesale shooting of Jews in the East and, later,
was complicit in the gassing of hundreds of thousands of Jews in the
Reinhard and other death camps.

13.27 The evidence is incontrovertible (and Irving does not seek to
dispute it) that Hitler was rabidly anti-semitic from the earliest days.
He spoke, in his famous speech of 30 January 1939 and on other
occasions, in the most sinister and menacing terms of the fate which
awaited the Jews: they were a bacillus which had to be destroyed. The
Defendants do not suggest that in the 1930s Hitler should be understood
to have been speaking in genocidal terms. But, according to the
Defendants, the position changed from late 1941 onwards. I was
unconvinced by the strenuous efforts made by Irving to refute the
sinister interpretation placed by the Defendants on Hitler's
pronouncements on the Jewish question from late 1941 onwards.

13.28 I do not propose to make individual findings about the Defendants'
criticisms of Irving's treatment of those statements by Hitler. I have
summarised them and the parties' respective contentions about them in
paragraphs 5.125-136 above. Much of the argument revolved around
questions of translation. I did not derive much assistance from the
debate as to how words such as ausrotten, vernichten, abschaffen,
umsiedeln and abtransportieren are to be translated. I believe that
Irving accepted the argument of the Defendants' experts that the Nazis
often resorted to euphemism and camouflage when discussing the radical
solutions to the Jewish question. For that and other reasons it was
agreed on all sides that all depends on the context.

13.29 In my view consideration of the context requires an objective
historian to take into account such matters as Hitler's history of anti-
semitism; the importance in the Nazi ideology of achieving racial
purity; the attacks on Jews and their property before the outbreak of
war; the policy of deporting Jews and the systematic programme, approved
by Hitler, of shooting Jews in the East. So considered, I am satisfied
that most, if not all, of the pronouncements by Hitler which are relied
on by the Defendants do bear the sinister connotation which they put on
them. To take but one example, when Frank said on 16 December 1941 that
he had been told in Berlin "liquidate [the Jews] yourselves", I am
satisfied that the evidence strongly supports the conclusion that he was
reporting what Hitler had said to the Gauleiter on 12 December and that
Hitler had indeed given instructions for the liquidation of the Jews.
That after all is what the evidence suggests happened on an ever-
increasing scale in the following months. Irving's claim that Frank was
telling his audience what he had told the authorities in Berlin (and not
the other way round) appears to me to be wholly untenable.


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