The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/i/irving.david/libel.suit//transcripts//day032.04

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Last-Modified: 2000/07/25

   MR JUSTICE GRAY:  Yes. Leaving aside the extermination, which
        is a separate issue and I understand what Mr Irving says
        about that, you do not understand there to be any argument
        or dispute between the Defendants and Mr Irving as to the
        fact that the deportation took place, and indeed also as
        to the fact that Hitler knew about it, because it is
        Mr Irving's case that that was all that was involved.

   MR RAMPTON:  No question.  Hitler gave the order for it.  As
        your Lordship will have seen, in one of the passages in
        our long submission, we draw attention, I forget which
        book it is, to a statement by Mr Irving where he says
        Hitler was neither consulted nor knew anything about the
        deportations.  Why he should say that, I have absolutely

.          P-36

        no idea, but the fact is that Hitler gave the order.

   MR JUSTICE GRAY:  That was Hitler's preferred solution, as
        opposed to extermination, according to Mr Irving's argument.

   MR RAMPTON:  In 1941 it may or may not be so, so far as the
        German Jews are concerned.


   MR RAMPTON:  So far as the rest, anyway.

   MR JUSTICE GRAY:  I noticed something this morning which I had
        not noticed before, which is that -- have you got your
        more detailed written submissions?

   MR RAMPTON:  Yes, I have.

   MR JUSTICE GRAY:  Would you go to Tab 5 (i)?

   MR RAMPTON:  Yes.

   MR JUSTICE GRAY:  There is at page 56, paragraph 4, which seems
        to continue over the page on page 57.

   MR RAMPTON:  Yes, it does.

   MR JUSTICE GRAY:  The next paragraph is 12.  I see what I have
        done.  Yes, there is an 11 somewhere lurking way back.

   MR RAMPTON:  Paragraph 11 is on page 53.  It has a large number
        of subparagraphs.

   MR JUSTICE GRAY:  Yes.  The next broad question is this.  I am
        really asking for perhaps a bit of assistance on this.  It
        is what we have called the genesis of the gassing
        programme, or the extermination programme.

   MR RAMPTON:  Yes.

.          P-37

   MR JUSTICE GRAY:   And what you have done, and this is your
        (ii), is very helpfully to set out what you say are
        gathered together from various files the various
        documentary references which demonstrate the setting up of
        the gassing in the Reinhardt camps and so on.

                  The slight problem I have with this way of
        dealing with it is that one has to try to confine the
        judgment within some sort reasonable bounds -- it is going
        to be horrifically long anyway -- and I do not think it is
        feasible to even begin to try to incorporate all those
        references.  It would just overload it.

   MR RAMPTON:  No, we were not expecting that your Lordship
        would, of course not.  It seemed to us, though, that now
        that one -- I mean, I am only a lawyer too -- had the
        chance to look at the thing with some considerable care,
        that that table led the eye through the stages really
        quite well; but if that is not so, then all I perhaps need
        to do is to refer your Lordship back to the little summary
        that I have given in this latest statement starting on page 10.

   MR JUSTICE GRAY:  Yes, but I think the problem is what I would
        really ideally want to aim at myself in order to give
        anyone reading the judgment a sufficient but not
        overextended view of what the documents show to have
        happened is something in between the two.

   MR RAMPTON:  I think what I am being asked ----

.          P-38

   MR JUSTICE GRAY:  You will think I am by very awkward.

   MR RAMPTON:  No, of course not.  I do not know how much time I
        have, that is all.  What I think I am being asked for and
        will willingly supply -- I might even get Dr Longerich to
        write it actually -- is really a chronological summary
        with a bit more detail than I have put in here and a bit
        less than I have put into the main submission.

   MR JUSTICE GRAY:  I think that is probably right.  Really in a
        way it perhaps will highlight the most significant
        documents.  I think it is right, I mean, as you realize,
        I have been trying to sort of keep a tag on what the
        evidence has revealed as it has gone on, so I think I have
        quite a lot of them, but I suspect I am missing some of
        the important ones and I would like to ----

   MR RAMPTON:  Yes, I mean, I do not say I have covered
        everything either.

   MR JUSTICE GRAY:  Can I invite you to do that?  Not at enormous
        length, but I think it would be helpful.

   MR RAMPTON:  We will do it in the course of the rest of this week.

   MR JUSTICE GRAY:  And bearing in mind, if I may suggest it, the
        issues that arise on the genesis of the gassing as opposed
        to Auschwitz, which I will deal with separately, seem to
        me to be, firstly, on what scale the extermination took
        place, and that is not really much of an issue now, as I
        understand Mr Irving's case.

.          P-39

   MR RAMPTON:  Not an issue at all.

   MR JUSTICE GRAY:  But also Hitler's knowledge.  So that is the
        thing to concentrate on, and I appreciate to some extent
        that may not any longer be as stark an issue as it was.

   MR RAMPTON:  That is covered specifically, not only with what
        I said today in general terms, but there was an exercise
        that I did in re-examination with Professor Longerich
        which is referred back to in here, just that really the
        month of July and into August 1942, which demonstrates in
        Professor Longerich's view, which we obviously adopt, that
        it is inconceivable that while Himmler was supervising the
        mass extermination of goodness knows how many people in
        the General Government Hitler did not know about it.

   MR JUSTICE GRAY:  Yes.  One of the things I was going to ask
        Mr Irving is whether he accepts the concessions that you
        attribute to him at various stages of your submission.

   MR RAMPTON:  I have given the reference to it somewhere in here.

   MR JUSTICE GRAY:  You have, indeed, but I think it is right it
        should be put to him.

   MR RAMPTON:  I mean, what he says now, his position has changed
        throughout the case, but really the concessions, if I may
        say this now, which we have listed in various places in
        this long submission are those which were first driven out
        of him by cross-examination, no cleverness on my part, but
        by the evidence which was presented to him, and it was not

.          P-40

        selective, in cross-examination.  His first reaction,
        eventually in some case, sometimes quite quickly, was to
        say, "Yes, are you right, it did happen".

   MR JUSTICE GRAY:  Yes, but I must find out what the up-to-date
        position is because I think it is fair to say that
        sometimes Mr Irving has fluctuated.

   MR RAMPTON:  As I say, I do not attach much weight to what
        I might call back tracking.

   MR JUSTICE GRAY:  Right.  If Professor Longerich can perform
        that exercise, but also focus, if he would, on the extent
        of Hitler's knowledge and the reason for saying that he
        knew about the gassing at Chelmno and all the rest.

                  The next question is a very short one and
        I think I know what your answer is, but I will ask it all
        the same:  part of your case against Mr Irving is that he
        is a racist, leaving aside anti-Semitism, that he is a
        racist and you have a number of quotations from his speeches.

   MR RAMPTON:  Yes.

   MR JUSTICE GRAY:  How does that bear on (a) the words
        complained of, and (b) the meanings that you seek to justify?

   MR RAMPTON:  I suppose we seek to justify simply that he holds
        extremist views in the written bit.  In the statement of
        case, I cannot remember.  It says something ----

   MR JUSTICE GRAY:  There is a bit right at the back.

.          P-41

   MR RAMPTON:  --- rather more specific than that.

   MR JUSTICE GRAY:  Perhaps my question really is, there is
        nothing about racism, is there, in ----


   MR JUSTICE GRAY:  --- Professor Lipstadt's book?

   MR RAMPTON:  Perhaps I should ask her.  There is some allusion to it, she says.

   MR JUSTICE GRAY:  I am not sure there is; if there is, I would like to know what it is.

   MR RAMPTON:  But, maybe your Lordship is right, there is this
        to be said, perhaps, if a man is and out and out racist
        which we would propose that it is obvious from his own
        private jottings, never mind what he says publicly, that
        Mr Irving is, and if anti-Semitism is a form of racism,
        which it plainly is, then it is a bit like a case where
        you accuse a man of grievous bodily harm and at trial
        succeed in proving that he is a murderer.

   MR JUSTICE GRAY:  Yes.  I thought that would be your answer,
        that anti-Semitism is just one form of racism.

   MR RAMPTON:  Yes, indeed.

   MR JUSTICE GRAY:  And, therefore, it is relevant, you would
        say, by way of justification of an anti-Semitic allegation
        that there is a general streak of racism to be perceived
        in what Mr Irving has said and done.

   MR RAMPTON:  It is evidence of his general disposition to
        disparage and be hostile towards people of different

.          P-42

        colours, ethnic backgrounds and cultures.

   MR JUSTICE GRAY:  Yes.  Now perhaps, for me, at any rate, the
        most important question is to be absolutely clear about
        what you are saying in the section which is section 9,
        I think, or (ix) towards the back of your written
        submission about assessing Mr Irving as an historian.

   MR RAMPTON:  Yes.

   MR JUSTICE GRAY:  Do you mind turning it up because I just want
        to be absolutely clear about it this because I think it is
        exceedingly important.  You first refer back to your
        historiographical criticisms, and I am right in taking it,
        am I not, it is pretty obvious from what you there say by
        way of criticism of Mr Irving that a number of the
        criticisms are criticisms that he has deliberately
        falsified the record.

   MR RAMPTON:  Every single one.

   MR JUSTICE GRAY:  All right, every single one.  Now, you do not
        expressly say so, but you may tell me it is implicit, that
        when you deal with his partisanship for Hitler which is
        (ii), you do not expressly say that that is all deliberate
        distortion and manipulation and so on.


   MR JUSTICE GRAY:  But that I understand to be your case, am I right?

   MR RAMPTON:  No, what I say is that he has sought to exculpate
        Hitler; that he has done that by a massive falsification

.          P-43

        of the underlying historical record on a large number of occasions.

   MR JUSTICE GRAY:  But going beyond what you have selected or
        Professor Evans has selected as the historical criticisms?

   MR RAMPTON:  Then I say if one looks at the general evidence as
        an objective, open-minded, careful, dispassionate
        historian, that Hitler was, indeed, responsible, knew all
        about it, and authorized it, the conclusion is
        irresistible that he did.  Mr Irving has shut that window,
        as it were, and has got on with the shut window behind him
        with the falsification of history so as to exculpate Hitler.

   MR JUSTICE GRAY:  Yes, so this is again another instance of
        deliberate manipulation which kind of runs through ----

   MR RAMPTON:  It is a kind of deliberate blindness to the
        evidence.  What he does not like, he ignores.

   MR JUSTICE GRAY:  Deliberate blindness?

   MR RAMPTON:  Yes, it is deliberate blindness.  He knows about,
        he has known for years, about report No. 51, for example.

   MR JUSTICE GRAY:  So it is telescope to the wrong eye?

   MR RAMPTON:  Yes, and for years, despite report No. 51, until
        we got him into this court, until he got us into this
        court, he did not accept that Hitler sanctioned the mass
        shootings in the East.  It is that kind of phenomenon.

   MR JUSTICE GRAY:  So that the partisanship.  Then Auschwitz,

.          P-44

        well I think it is pretty clear what your case is about that.

   MR RAMPTON:  Yes.

   MR JUSTICE GRAY:  You do not specifically rely on the denials
        of the Holocaust, but, presumably, you say in relation to
        those that they are denials which Mr Irving must have
        known were false when he made them.

   MR RAMPTON:  No, again this is a bit like the sort of general
        refusal to accept Hitler's knowledge.  What I say about
        that is that his denials of the Holocaust have been made
        without any reference whatsoever to any reliable evidence.
        They started to be made on Leichter which is an obviously
        completely hopeless position for any kind of
        self-respecting historian or, indeed, anybody else for
        that matter.  Then much later on down the road he adds in
        one or two other things like the death books and the
        decrypts.  Finally, just before this trial or a year or so
        before this trial, he comes to the runes.  He has never
        been to Auschwitz.  He has never looked at any o the
        documents or the plans.  Such evidence as he knows about
        he dismisses out of hand as being mere eyewitness
        testimony.  When he comes to see an aerial photograph
        showing the holes in the roof, he says it is a forgery;
        the incineration capacity document is also a forgery, and
        so on and so forth.  This means that his denial must have
        another agenda because it cannot be the product of genuine

.          P-45

        bona fide historical research and contemplation.

   MR JUSTICE GRAY:  So his state of mind which is -- and it is
        important that I am absolutely clear what it is that is
        being suggested in relation to the various issues that
        have arisen in the case -- this is an area where you put
        it as being deliberately perverse blindness and acting in
        pursuance of what is, effectively, a neoNazi agenda, is that right?

   MR RAMPTON:  Yes, I put it in two ways and I will say it as
        shortly as I can.  I put it forward as evidence of
        somebody who cannot be regarded as a serious historian,
        because what he has done is to allow his historical
        apparatus to be distorted by something beyond -- extrinsic
        or ulterior.  Looking at the way in which he expresses
        Holocaust denial and the audiences to whom he expresses
        that denial and the things that he says on those
        occasions, one is driven to the conclusion that the hidden
        agenda, the reason for the historical incompetence, if I
        can I call it that (though there is a much stronger word
        that I could think of) is that he is at root deeply
        anti-Semitic and a neo-Nazi, as your Lordship just said.

   MR JUSTICE GRAY:  Well, that raises the last question that
        I wanted to canvass with you, and it is anti-Semitism and,
        indeed, the racism and the extremism and all the rest of
        it.  I find it a little, and I find it throughout the
        case, bit difficult to see how, if at all, those

.          P-46

        allegations against Mr Irving dovetail with the general
        allegation that he falsifies to an extent deliberately the
        historical record because it seems to me, and I just want
        to know how you put it, that if somebody is anti-Semitic,
        and leave aside racism, but anti-Semitic and extremist, he
        is perfectly capable of being, as it were, honestly
        anti-Semitic and honestly extremist in the sense that he
        is holding those views and expressing those views because
        they are, indeed, his views.

   MR RAMPTON:  Yes.

   MR JUSTICE GRAY:  Now, it seems to me that probably, if you
        come down to it, that the anti-Semitism is a completely
        separate allegation which really has precious little
        bearing on your broader and perhaps more important case
        that Mr Irving has manipulated the data and falsified the
        record, or do you say that they are corrected in some way
        and, if so, how?

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