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Subject: Irving v. Penguin & Lipstadt: Judgment XIII-04
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Keywords: David Irving libel action Deborah Lipstadt


Archive/File: people/i/irving.david/libel.suit/judgment-13.04
Last-Modified: 2000/04/11

13.83 Despite those curious features, Irving's argument deserves to be
taken seriously. I have summarised the Defendants' response to it at
paragraphs 7.109 to 7.111 above. In the end, the task for an historian
is to weigh the evidence of the absence of signs of holes in the roof of
the morgue against the opposing evidence that there were chimneys
running through the roof. In my view van Pelt is right in his opinion
that it is after so many years difficult to verify whether or not holes
at one time existed in a roof which collapsed as long ago as 1944. It is
unclear how much of the roof can be seen in the photograph on which
Irving relies. The roof is in a bad state, so that it is hard to tell if
there were holes in it. There is a possibility that the holes were
backfilled. There is the evidence of eye-witnesses who observed or at
least described pellets being poured down through the roof of the
morgue. Olere's drawing depicts clearly the chimneys running up towards
the roof the gas chamber. Their appearance in his drawing corresponds
with the description of them by Tauber and others. Photographs taken in
1942 (or 1943) and 1944, whilst difficult to interpret, are consistent
with the presence of protruding chimneys. In these circumstances, I
consider that an objective historian, taking account of all the
evidence, would conclude that the apparent absence of evidence of holes
in the roof of morgue at crematorium 2 falls far short of being a good
reason for rejecting the cumulative effect of the evidence on which the
Defendants rely.

Gas chambers for fumigation purposes or to serve as air raid shelters

13.84 I have no doubt that Irving is right that there was throughout a
need to have fumigation facilities at the camp. There is documentary
evidence of concern about the effect on the labour supply of prevailing
mortality levels. As van Pelt accepted, ovens would have been required
to cremate the large number who succumbed to disease. But in my judgment
there is ample evidence which would have convinced an objective
commentator that there were also gas chambers which were put to use to
kill humans. In the first place there is the eye-witness evidence to
which I have referred. Secondly, there is the evidence of van Pelt that
the redesign of crematorium 2 in late 1942 was intended to cater for
live human beings to walk down to an undressing room before being led
into the chamber and to do away with the corpse-slide previously used to
convey dead bodies downstairs. Thirdly, there is evidence that a camp
doctor asked in January 1943 for the provision of an undressing-room,
which would have been unnecessary if the crematorium were intended for
corpses. Finally there is the evidence of the letter dated 31 March 1943
in which Bischoff requisitions, as a matter of urgency, a gas-tight door
with a spy-hole of extra thickness. It is difficult to see why a spy-
hole would be necessary in the door of a chamber used only for
fumigating corpses or other objects. For these reasons I do not accept
that an objective historian would be persuaded that the gas chambers
served only the purposes of fumigation. The evidence points firmly in
the direction of a homicidal use of the chambers as well.

13.85 I turn to Irving's alternative argument that the redesign work
carried out in early 1943 was to convert crematorium 2 (and crematorium
3) for use as an air-raid shelter. I accept his claim that there was at
the time some concern about Allied air-raids in the region. I am
prepared to assume in Irving's favour that it was standard practice to
equip shelters with gas-tight doors opening outwards and equipped with a
peephole (although probably not with a metal grille on the inside).
Nevertheless there appear to me to be cogent pragmatic reasons for a
historian to conclude that the evidence does not support the air-raid
shelter argument.

13.86 If the redesign was to convert the buildings to air raid shelters,
there would have been no reason why the drawings and associated
documents should not say so. But there is no hint in the documents that
such was the intention. The question arises for whose benefit such
shelters would have been built. It appears to me to be unlikely that the
Nazis would be concerned to shelter the camp inmates. In any case the
shelters would have been too small to accommodate more than a fraction
of them. But the shelters would not have been suitable for SS personnel
either, since the SS barracks were about one and a half miles way. So I
cannot accept that this argument comes anywhere near displacing the
conclusion to be drawn from the convergent evidence relied on by the
Defendants for their contention as to the object of the redesign work.

"Death books"; decrypts and coke consumption

13.87 Irving advanced a number of subsidiary arguments. I can deal with
them briefly because they did not impress me. I do not consider that
they would have impressed a dispassionate historian either.

13.88 Irving relied on the fact that the camp registers or "death books"
released by the Russians record deaths at Auschwitz, but make no mention
of any deaths by gassing. The short answer to this point is that,
according to the unchallenged evidence of a large number of witnesses,
the books record only the deaths of those who were formally registered
as inmates of the camp. The Jews who were selected on arrival to die
were taken straight to the gas chambers without being registered. One
would not therefore expect to find mention of the cause of death of
those Jews in the death books.

13.89 Reports were sent regularly from the camp to Berlin in cypher.
They were intercepted and decoded at Bletchley Park. Although these
reports often gave the cause of death, they did not mention gassing. In
my judgment there are two reasons why little significance is to be
attached to this: the first is that there was a strict rule of secrecy
about the gassing and the second is that, like the death books, these
reports related to registered inmates only.

13.90 Irving argued that the quantity of coke required to burn one body
would have been 35kg. He contended that the amount of coke which is
recorded as having been delivered to Auschwitz is nothing like enough to
kill the number of Jews who the Defendants say lost their lives in the
gas chambers. But I accept that the evidence of van Pelt, which was
based on contemporaneous documents (see paragraph 7.125 above), that, if
the incinerators were operated continuously and many corpses were burnt
together so themselves providing fuel, no more than 3.5kg of coke would
have been required per corpse.

Conclusion

1. Having considered the various arguments advanced by Irving to assail
the effect of the convergent evidence relied on by the Defendants, it is
my conclusion that no objective, fair-minded historian would have
serious cause to doubt that there were gas chambers at Auschwitz and
that they were operated on a substantial scale to kill hundreds of
thousands of Jews.

Whether Irving is a "Holocaust denier"

13.92 I accept the evidence of Evans, which was not challenged by
Irving, that what characterises a "Holocaust denier", in the sense in
which that term is used by Lipstadt in Denying the Holocaust, is that he
or she holds or expresses some or all of the views which I have listed
in paragraph 8.5 above.

Irving's statements about the Holocaust

13.93 In paragraphs 8.16 to 8.36 above I have quoted passages from a
selection of Irving's statements about the Holocaust. (It is a selection
only: the Defendants adduced in evidence many more statements). I have
divided the statements into groups which broadly correspond with the
criteria included within Evans's definition of a Holocaust denier. The
principal category consists of statements made by Irving denying the
existence of gas chambers at Auschwitz or elsewhere. But there are also
statements by him denying the existence of a broader policy to
exterminate Jews. There are statements too about the number of Jews
killed at Auschwitz and in the Holocaust. Finally there are claims by
him that the gas chambers were a lie invented by British intelligence.

13.94 In addressing the question whether Irving is justifiably described
as Holocaust denier, I make allowance for the fact that, when addressing
live audiences as opposed to writing history books, Irving needed to
hold the attention of his audience by expressing himself in a vivid and
colourful style. I agree that it is necessary to take care to ensure
that Irving is not quoted out of context. I accept that merely to
question aspects of the Holocaust does not make a person a Holocaust
denier. I recognise also that Irving came relatively late to the issue
of the Holocaust: he claimed to have paid little attention to it before
1989.

13.95 Even so, it appears to me to be incontrovertible that Irving
qualifies as a Holocaust denier. Not only has he denied the existence of
gas chambers at Auschwitz and asserted that no Jew was gassed there, he
has done so on frequent occasions and sometimes in the most offensive
terms. By way of examples, I cite his story of the Jew climbing into a
mobile telephone box-cum-gas chamber; his claim that more people died in
the back of Kennedy's car at Chappaquiddick than died in the gas
chambers at Auschwitz; his dismissal of the eye-witnesses en masse as
liars or as suffering from a mental problem; his reference to an
Association of Auschwitz Survivors and Other Liars or "ASSHOLS" and the
question he asked of Mrs Altman how much money she had made from her
tattoo. I reject as being untrue the claim made by Irving in his
evidence that in his denial of the existence of any gas chambers at
Auschwitz, he was referring solely to the gas chamber constructed by the
Poles after the war for the benefit of visitors to the site or, as
Irving put it, as a "tourist attraction". In this connection I refer to
paragraph 9.13 above. Even if Irving had referred to gas chamber in the
singular, it would not have been apparent that he was speaking of the
reconstructed gas chamber at the camp.

13.96 Irving has also made broader claims which tend to minimise the
Holocaust. For example he has claimed that the Jews in the East were
shot by individual gangsters and criminals and that there was no
direction or policy in place for mass extermination to be carried out. I
do, however, accept that Irving expressed himself in more measured
language on this topic than in the case of the gas chambers. But he has
also minimised the number of those killed by means other than gas at
Auschwitz and elsewhere. Having grossly underestimated the number who
lost their lives in the camps, Irving is prone to claim that a greater
number than that were killed in Allied bombing raids on Dresden and
elsewhere. He has, moreover, repeatedly claimed that the British
Psychological War Executive ingeniously invented the lie that the Nazis
were killing Jews in gas chambers in order to use it as propaganda.

Whether Irving's denials are borne out by the evidence

13.97 It is part of the Defendants' case on justification that the
statements made by Irving which are apostrophised by the Defendants as
Holocaust denials are false in the sense that they are unsupported by
the evidence. I have summarised in paragraphs 8.16 to 8.36 the reasons
why the Defendants so contend.

13.98 I have already made findings that the evidence supports the
following propositions: that the shooting of the Jews in the East was
systematic and directed from Berlin with the knowledge and approval of
Hitler; that there were gas chambers at several of the Operation
Reinhard camps and that (as Irving during the trial admitted) hundreds
of thousands of Jews were killed in them and that there were gas
chambers at Auschwitz, where hundreds of thousands more Jews were gassed
to death. It follows that it is my conclusion that Irving's denials of
these propositions were contrary to the evidence.

13.99 There remains only the question whether the evidence supports
Irving's claim that the gas chambers were a propaganda lie invented by
British Intelligence. I have recited the rival contentions of the
parties in paragraphs 8.31 to 8.36 above. There are three questions:
firstly, did the British invent the notion that Jews were being killed
by the Nazis in gas chambers; secondly, even if the British did not
invent the story, did they disbelieve it and, thirdly, was use made of
the story for propaganda purposes. As to the first question, Irving was
unable to present any evidence that the British invented the story. It
was provided to the Foreign Office by the secretary to the World Jewish
Council, who in turn had received it from a source in Berlin. As to
whether the British disbelieved the story, the only evidence to which
Irving was able to point was the note made by Cavendish-Bentinck that
there was no evidence to support the claim. That appears to me to be far
cry from disbelieving the story. As to whether British Intelligence made
propaganda use of the story, the evidence produced by Irving extended no
further than second-hand accounts of BBC broadcasts about the gassing.
There was no indication that British intelligence played any part in
these broadcasts. In my judgment the evidence does not support the claim
made by Irving.

Whether Irving is an anti-semite and a racist

13.100 I have set out at some length at paragraph 9.5 above the
statements made by Irving which the Defendants maintain demonstrate his
anti-semitism and at paragraph 9.6 above the statements which the
Defendants allege manifest racism. I hope and believe that none of the
quotations has been taken out of context. I appreciate the point made by
Irving that these statements are a selection from the many millions of
words spoken and written by him through which the Defendants have
trawled for the purpose of this litigation.

Anti-semitism

13.101 It appears to me to be undeniable that most, if not all, of the
statements set out in paragraph 9.5 reveal clear evidence that, in the
absence of any excuse or suitable explanation for what he said or wrote,
Irving is anti-semitic. His words are directed against Jews, either
individually or collectively, in the sense that they are by turns
hostile, critical, offensive and derisory in their references to semitic
people, their characteristics and appearances. A few examples will
suffice: Irving has made claims that the Jews deserve to be disliked;
that they brought the Holocaust on themselves; that Jewish financiers
are crooked; that Jews generate anti-semitism by their greed and
mendacity; that it is bad luck for Mr Wiesel to be called 'Weasel'; that
Jews are amongst the scum of humanity; that Jews scurry and hide
furtively, unable to stand the light of day; that Simon Wiesenthal has a
hideous, leering evil face; and so on.

13.102 In the preceding paragraph I did introduce the caveat that the
evidence of Irving's anti-semitism is clear in the absence of any excuse
or sensible explanation for his words. It is possible to envisage
circumstances in which words, which on their face are anti-semitic, turn
out on analysis to be susceptible of innocent explanation. Irving did
advance a number of reasons why he claims it is unreasonable to regard
him as an anti-semite. I have summarised them at paragraphs 9.9 to 9.17
above.

13.103 The principal explanation or justification offered by Irving for
his comments about Jews is that he is seeking to explain to Jews why
anti-semitism exists and not himself adopting the anti-semitism. But I
do not think that this was the message that Irving was seeking to convey
to his audiences and it was certainly not the sense in which his remarks
were understood. Irving advances a similar justification of his
characterisation of the Jewish stereotype as an attempt to warn Jews not
to enhance by their conduct the negative public perception of them. If
this were Irving's objective, I do not believe that he would have used
such offensive language. If (as Irving claims) his remark about
Wiesenthal was a  joke, it was an anti-semitic joke.

13.104 I have more sympathy for Irving's argument that Jews are not
immune from his criticism. He said that he was simply expressing
legitimate criticisms of them. Irving gave as an example what he claimed
was his justified criticism of the Jews for suppressing his freedom of
expression. Another legitimate ground of criticism might be the manner
in which Jews in certain parts of the world appear to exploit the
Holocaust. I agree that Jews are as open to criticism as anyone else.
But it appears to me that Irving has repeatedly crossed the divide
between legitimate criticism and prejudiced vilification of the Jewish
race and people. I can well understand too that, because of his
perceived views, Irving and his family have from time to time been
subjected to extreme pressure, for example when his flat house was
besieged by rioters in 1994 (see paragraph 9.14 above). In the heat of
the moment ill-considered remarks are often made. But it is in just such
circumstances that racial prejudice manifests itself. In my view that is
what occurred in 1994.

13.105 The inference which in my judgment is clearly to be drawn from
what Irving has said and written is that he is anti-semitic.

Racism

13.106 I have concluded that the allegation that Irving is a racist is
also established for broadly analogous reasons. This is unsurprising for
anti-semitism is a form of racism. It appears to me that the sample
quotations set out in paragraph 9.6 above provide ample evidence of
racism. The ditty composed by Irving for his daughter is undeniably
racist in putting into her mouth the words "I am a Baby Aryan .I have no
plans to marry an Ape or Rastifarian". Similarly, Irving's reference to
"one of them" reading the television news strikes me as evidence of
racism of a more insidious kind. The same applies to Irving's proclaimed
queasiness on seeing black men playing cricket for England. The manner
in which Irving speaks of the AIDS epidemic wiping out blacks,
homosexuals, drug addicts and others has in my view a distinctly racist
flavour. Irving's statements about coloured immigration are also racist
in their overtones even if less overtly so.

13.107 I cannot accept that the various explanations put forward by
Irving for what he said and wrote deprive his words of their racist
quality. It is possible to employ members of ethnic minorities and yet
hold racist views. I do not accept that the statements relied on by the
Defendants can be defended as expressions of patriotic sentiments. I
reject Irving's explanations, set out at paragraphs 9.19 and 9.21 above,
of his comments about the spread of AIDS in Africa and about the feeling
of humiliation he experienced when his passport was checked at Heathrow
by a Pakistani.

13.108 I accept that Irving is not obsessed with race. He has certainly
not condoned or excused racist violence or thuggery. But he has on many
occasions spoken in terms which are plainly racist. Racism is to be
condemned even if it is confined, as in Irving's case, to expressions of
the kind which I have mentioned.

Irving's alleged association with right-wing extremists

13.109 I am conscious of the complaint made by Irving that in this part
of their case the Defendants are seeking to prove him guilty by
association. In assessing whether there is an ideological motivation
underlying what he has written about the Nazis and the Jews, I shall
therefore concentrate on what he has himself written and said on the
subject. Although Irving invited me to discount what he has said and
down in his many talks in Europe and elsewhere and to concentrate on his
historical works, it appears to me that to do so would be artificial and
even potentially misleading.

13.110 It does, however, appear to me that some legitimate light is or
may be cast on Irving's motivation by an examination of those groups and
individuals with whom he associates. It cannot of course be held against
Irving that on occasion by happenstance he has found himself at the same
meeting, or even on the same platform, as some acknowledged extremist.
It is a question of the degree of association.

13.111 Funke in his report made reference to a bewildering array of
organisations and individuals. He devoted many pages to a close analysis
of the links and relationships between political bodies and the overlap
in their policies. But Irving's association with many of those
organisations is tenuous to say the least. I am satisfied that Irving
has had no significant association with a great many of them. The same
applies to the individuals named by Funke. For instance I accept that he
has not consciously encountered Thomas Dienel or Michael Kuhnen. I am
not persuaded by the evidence that Irving was aware that Dienel was at
the meeting at Halle on 9 November 1991.

Right-wing political organisations

13.112 Irving accepted that he has from time to time addressed the
German National Democratic Party and the German Peoples' Union. I
recognise that these organisations are not banned as being
unconstitutional but I accept the evidence of Funke that they and their
members are on the extreme right of the political spectrum. There would
be many who would refuse any invitation to address meetings of such
groups. Irving must be aware of the political complexion of these
organisations. His willingness to speak at their meetings is, to put it
at its lowest, indicative of a tolerance on his part of right wing
extremism. But I accept that, when he has spoken at their meetings,
Irving has not expressed himself in extremist or anti-semitic terms.


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