Newsgroups: alt.revisionism Reply-to: firstname.lastname@example.org Subject: Irving v. Penguin & Lipstadt: Judgment XIII-01 Organization: The Nizkor Project 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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