Newsgroups: alt.revisionism Reply-to: firstname.lastname@example.org Subject: Irving v. Penguin & Lipstadt: Judgment XIII-04 Organization: The Nizkor Project 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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