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Subject: Irving v. Penguin & Lipstadt: Judgment XIII-06
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Keywords: David Irving libel action Deborah Lipstadt


Archive/File: people/i/irving.david/libel.suit/judgment-13.06
Last-Modified: 2000/04/11

13.141 I have found that most of the Defendants' historiographical
criticisms of Irving set out in section V of this judgement are
justified. In the vast majority of those instances the effect of what
Irving has written has been to portray Hitler in a favourable light and
to divert blame from him onto others. I have held that this is
unjustified by the evidence. Examples include Irving's portrayal of
Hitler's conduct and attitude towards the events of Kristallnacht and
the importance attached by Irving to Hitler's attitude towards the
Jewish question as he claims is evidenced by the Schlegelberger note. I
have seen no instance where Irving has misinterpreted the evidence or
misstated the facts in a manner which is detrimental to Hitler. Irving
appears to take every opportunity to exculpate Hitler. The same is true
of the broader criticism made by the Defendants' of Irving's
unwarrantedly favourable depiction of Hitler in regard to his attitude
towards the Jews, which criticism I have found in section VI above to be
justified. Irving sought in his writings to distance Hitler from the
programme of shooting Jews in the East and from the later genocide in
the death camps in a manner which the evidence did not warrant. Irving
has argued, unjustifiably as I have found, that the evidence indicates
that Hitler was unaware of any programme for the extermination of Jews
at Auschwitz. In his account of the bombing of Dresden Irving (as I have
found in section X1 above) persistently exaggerates the number of
casualties, so enabling him to make comparisons between the number of
civilians killed in Allied bombing raids with the number of Jews killed
in the camps.

13.142 In my opinion there is force in the opinion expressed by Evans
that all Irving's historiographical "errors" converge, in the sense that
they all tend to exonerate Hitler and to reflect Irving's partisanship
for the Nazi leader. If indeed they were genuine errors or mistakes, one
would not expect to find this consistency. I accept the Defendants'
contention that this convergence is a cogent reason for supposing that
the evidence has been deliberately slanted by Irving.

The nature of some of Irving's errors

13.143 As I have already indicated it is material to take account of the
nature or quality of what Irving claims to have been mistakes or
misapprehensions on his part. Certain of Irving's misrepresentations of
the historical evidence might appear to be simple mistakes on his part,
for instance the misreading of haben as Juden in Himmler's telephone log
for 1 December 1941. But there are other occasions where Irving's
treatment of the historical evidence is so perverse and egregious that
it is difficult to accept that it is inadvertence on his part. Examples
include Irving's rejection of the evidence for the existence of gas
chambers at Auschwitz; his claim that Hitler lost interest in anti-
semitism on coming to power; his account of Hitler's meeting with Horthy
in April 1943; his wholesale dismissal of the testimony of Marie
Vaillant-Couturier and his continued reliance on the forged Tagesbefehl
No. 47 which purportedly gave the number of casualties in Dresden. I
have referred in the course of this judgment to other instances where
Irving's account flies in the face of the available evidence.

13.144 Mistakes and misconceptions such as these appear to me by their
nature unlikely to have been innocent. They are more consistent with a
willingness on Irving's part knowingly to misrepresent or manipulate or
put a "spin" on the evidence so as to make it conform with his own
preconceptions. In my judgment the nature of these misstatements and
misjudgments by Irving is a further pointer towards the conclusion that
he has deliberately skewed the evidence to bring it into line with his
political beliefs.

Irving's explanations for his errors

13.145 In the course of his cross-examination Irving was asked on
numerous occasions to provide explanations for what he had written or
said. Thus he was asked why he had omitted to make reference to
apparently significant events; why he had relied on sources whose
reliability there was good reason to doubt; what was the source of
evidence for particular assertions. It seems to me that one way of
testing whether Irving's errors were the product of innocent mistakes on
his part is to look at his explanations.

13.146 In his answers Irving offered various explanations for his
omission of apparently significant evidence. He gave as the reason why
he did not refer to the evidence of Hofmann when dealing with the trial
of Hitler in 1924 that it was too long to be included. But the records
of Hofmann's testimony ran to no more than five pages. He sought to
excuse his omission to include in his account of the shooting of Berlin
Jews in Riga the claim made by Bruns that there had been a Hitler order
by saying that it "would bore the pants off an audience". Asked to
explain why he omitted to refer in the 1991 edition of Hitler's War to
the sinister fate awaiting the 600,000 French Jews who were not well-to-
do and so not to kept healthy and alive, Irving answered that the 1991
edition was an abridged version and the omission had to be made for
editorial reasons. His explanation for not informing his readers of the
reasons for supposing that the Schlegelberger note may have been
concerned with the problem of the mischlinge was that he was writing a
book which had to be kept within the confines of a single volume. Irving
gave a similar explanation for his suppression (as the Defendants claim
that it was) of material parts of Goebbels's diary entry of 27 March
1942. Irving excused his inability to answers certain questions about
Auschwitz (for example about cremations there and his reason for not
having visited Auschwitz) by saying that he is not an expert on
Auschwitz. Irving balmed his editor for the retention of his
mistranslation of haben zu bleiben as "Jews are to stay" after he had
been informed of his error. When he was asked to identify the eye-
witness who told him about the telephone box-cum-gas chamber story,
Irving replied that he could not recall but that he read about it or
seen it some ten years ago. Earlier in this judgment I have cited other
examples of Irving's explanations for his lapses.

13.147 I recognise that it is not always easy for Irving to cast his
mind back over the years so as to explain why and how his mistakes were
made. In my view, however, in many instances, including those set out in
the preceding paragraph, the explanations which he offered were
unconvincing. The absence of credible explanations lends further support
to the Defendants' argument that Irving's misrepresentation of the
historical record was not inadvertent.

Irving's readiness to challenge the authenticity of inconvenient
documents and the credibility of apparently credible witnesses

13.148 I accept that it is necessary for historians, not least
historians of the Nazi era, to be on their guard against documents which
are forged or otherwise unauthentic. But it appeared to me that in the
course of these proceedings Irving challenged the authenticity of
certain documents, not because there was any substantial reason for
doubting their genuineness but because they did not fit in with his
thesis.

13.149 The prime example of this is Irving's dismissal of Muller's
letter of 28 June 1943 dealing with the incineration capacity of the
ovens at Auschwitz (to which I have referred at paragraph 7.106 and
7.120).As already stated at paragraph 13.76 I agree with the assessment
of van Pelt that there is little reason to doubt the authenticity of
this document. Yet Irving argued strenuously that it should be dismissed
as a forgery. In my judgment he did so because it does not conform to
his ideological agenda. Similarly Irving devoted much time to
challenging the authenticity of Muller's instruction to furnish Hitler
with reports of the shooting. I believe that he did so because this was
for him an inconvenient document and not because there were real doubts
about it genuineness. (Irving ultimately accepted its bona fides). There
were other occasions when Irving sought to cast doubt on the
authenticity of documents relied on by the Defendants (for example the
Anne Frank diaries and the report of the gassing of 97,000 Jews at
Chelmno referred to at paragraph 6.71 above). In neither case did
Irving's doubts appear to me to have any real substance. His attitude to
these documents was in stark contrast to his treatment of other
documents which were more obviously open to question. One example is
Irving's unquestioning acceptance of the Schlegelberger memorandum
despite the uncertainty of its provenance. Another is his reliance on
Tagesbefehl No. 47 in the teeth of mounting evidence that it was a
forgery. In my judgment there is force in the Defendants' contention
that Irving on occasion applies double standards to the documentary
evidence, accepting documents which fit in with his thesis and rejecting
those which do not.

13.150 As I have already observed in the course of dealing with the
historiographical criticism of Irving, there is a comparable lack of
even-handedness when it comes to Irving's treatment of eye-witnesses. He
takes a highly sceptical approach towards the evidence of the survivors
and camp officials at Auschwitz and elsewhere who confirm the genocidal
operation of gas chambers at the camp (Tauber, Olere, Wisliceny, Hoss
and Miller). But in relation to other witnesses (such as Hitler's
adjutants, Christa Schroder and Voigt), where there is greater reason
for caution about their testimony, Irving appears to adopt it
uncritically. I accept that Irving had interviewed personally many of
the witnesses in the latter category and so could form his own
assessment. Even so, the contrast in approach is remarkable.

13.151 The double standards which Irving adopts to some of the documents
and to some of the witnesses appears to me to be further evidence that
Irving is seeking to manipulate the evidence rather than approaching it
as a dispassionate, if sometimes mistaken, historian.

Irving's concessions

13.152 It was a striking feature of the case that in the course of it
Irving made, or appeared to make, concessions about major issues. In
doing so he resiled from the stance adopted by him in relation to those
issues before trial. Such concessions were made by Irving in relation to
the shooting of Jews in the East; the use of gas vans at Chelmno and in
Yugoslavia; the gassing of Jews at the Action Reinhard camps; the
existence and genocidal use of gas chambers at Auschwitz and the
Leuchter report.

13.153 Thus the Defendants contend that, having previously asserted that
the shooting of Jews in the East was generally unauthorised and carried
out by small bands of criminals with Hitler's partial knowledge but
without any order from him, Irving accepted at trial that perhaps as
many as 1.5 million Jews were killed on the authority of Heydrich and on
a systematic basis. He conceded also that Hitler not only knew of the
shooting of the Jews in the East but also sanctioned their murder. He
agreed that Hitler had taken the initiative in ridding the Altreich of
Jews. Irving's concessions on these issues were in stark contrast to his
case as it stood before trial.

13. 154 At a later stage in the trial, however, Irving retracted, as
least in part, the concessions he had made. He partially withdrew his
acceptance of Hitler's responsibility for the shooting. In a written
submission Irving argued that the treatment of deported Jews suggested a
lack of system and co-ordination and that there was no clear and
unambiguous evidence of Hitler's awareness of the mass murder in the
East of European Jews. Irving claimed that he had adopted the position
before trial that the killing of the Jews in the East had been largely
systematic and much of it had been carried out under orders. He claimed
that there was no significant shift of position on his part. But it
appears to me that Irving did shift his ground in a significant way in
the course of the trial, especially in regard to Hitler's authorisation
of the killing.

13.155 In regard to the use of gas vans, Irving was prepared before
trial to accept no more than that there had been an "alleged
liquidation" of 152,000 Jews at Chelmno and that gas vans had been used
on an experimental basis and on very limited scale. At trial he accepted
that there had been a systematic use of gas vans at the camp; that in
one relatively short period 97,000 Jews had been murdered there and that
he had been wrong to say that the use of the vans was experimental. He
also accepted that the Nazis used gas vans to kill Jews in Yugoslavia
instead of shooting them. Irving's explanation for these changes in his
case was that he was making admissions in order to deal with the issues
expeditiously.

13.156 In relation to the Reinhard camps, having claimed before the
trial that there were no gas chambers at Treblinka, Sobibor or Belzec,
Irving accepted at trial that he could not challenge the accepted
figures for the numbers of Jews killed at those camps which were 700-
950,000,200,000 and 550,000 respectively. He again later explained his
concessions as having been made "formally" in order to speed the trial
along, adding later that he had seen no documentary evidence to support
the figures for those killed. I have already given my reaction to that
response.

13.157 I have earlier summarised the manner in which Irving altered his
position in relation to the number of Jews killed there by gas but also
to the existence of homicidal gas chambers at Auschwitz. On both these
issues there was in my view a radical shift of ground. Irving says that
he has always accepted that many Jews were killed at Auschwitz. So he
has, but not by gassing.

13.158 I have also described Irving's concessions in relation to the
Leuchter report: see paragraph 7.89. Irving had previously expressed the
view that the conclusions of the report were irrefutable. At trial, as
has been seen, he agreed without any great protest that the vast
majority of Leuchter's findings were wrong and the report was
fundamentally flawed.

13.159 What is the significance of these alterations in Irving's in
realtion to the issue with which I am at present concerned with, namely
Irving's motivation? It seems to me that the Defendants are justified in
their contention that Irving's readiness to resile from positions he had
adopted in what he has written and said about important aspects of the
Holocaust demonstrates his willingness to make assertions about the Nazi
era which, as he must appreciate, are irreconcilable with the available
evidence. I also consider that there is force in the Defendants'
contention that Irving's retraction of some of his concessions, made
when he was confronted with the evidence relied on by the Defendants,
manifests a determination to adhere to his preferred version of history,
even if the evidence does not support it.

Extraneous circumstances: Irving's denials of the Holocaust, his racism,
anti-semitism and association with right-wing extremists

13.160 I pointed out in paragraph 13.139 above that there may be
circumstances extraneous to Irving's practice of his profession as an
historian from which it may be the legitimate to draw inferences as to
whether his misrepresentation of the historical evidence has been
deliberate. If the evidence supports the view that Irving is a
dispassionate objective student and chronicler of the Nazi era, that
would militate powerfully against the conclusion that he is working to
agenda of his own. Conversely, if the extraneous evidence indicates that
Irving holds views which are pro-Nazi and anti-semitic and that he is an
active protagonist and supporter of extreme right-wing policies, that
would support the inference that he perverts the historical evidence so
as to make it conform with his ideological beliefs.

13.161 I have already set out in section VIII above my conclusion that
Irving displays all the characteristics of a Holocaust denier. He
repeatedly makes assertions about the Holocaust which are offensive to
Jews in their terms and unsupported by or contrary to the historical
record. I have also given at section IX above the reasons for my
findings that Irving is an anti-semite and a racist. As I have found in
section X above, Irving associates regularly with extremist and neo-Nazi
organisations and individuals. The conclusion which I draw from the
evidence is that Irving is sympathetic towards and on occasion promotes
the views held by those individuals and organisations.

13.162 It is not difficult to discern a pattern to the activities and
attitudes to which I have alluded in the preceding paragraph. Over the
past fifteen years or so, Irving appears to have become more active
politically than was previously the case. He speaks regularly at
political or quasi-political meetings in Germany, the United States,
Canada and the New World. The content of his speeches and interviews
often displays a distinctly pro-Nazi and anti-Jewish bias. He makes
surprising and often unfounded assertions about the Nazi regime which
tend to exonerate the Nazis for the appalling atrocities which they
inflicted on the Jews. He is content to mix with neo-fascists and
appears to share many of their racist and anti-semitic prejudices. The
picture of Irving which emerges from the evidence of his extra-
curricular activities reveals him to be a right-wing pro-Nazi
polemicist. In my view the Defendants have established that Irving has a
political agenda. It is one which, it is legitimate to infer, disposes
him, where he deems it necessary, to manipulate the historical record in
order to make it conform with his political beliefs.

Finding as to Irving's motivation

13.163 Having reviewed what appear to me to be the relevant
considerations, I return to the issue which I defined in paragraph
13.138 above. I find myself unable to accept Irving's contention that
his falsification of the historical record is the product of innocent
error or misinterpretation or incompetence on his part. When account is
taken of all the considerations set out in paragraphs 13.140 to 13.161
above, it appears to me that the correct and inevitable inference must
be that for the most part the falsification of the historical record was
deliberate and that Irving was motivated by a desire to present events
in a manner consistent with his own ideological beliefs even if that
involved distortion and manipulation of historical evidence.

Finding in relation to the defence of justification

The test

13.164 I have already set out at paragraphs 4.7 to 4.9 above the test
which is to be applied when deciding the fate of the plea of
justification, namely whether the Defendants have established to the
appropriate standard that the imputations published about Irving are, in
the meanings which I have found them to bear, substantially justified.
As I have pointed out, the Defendants are entitled, if and to the extent
that may be necessary, to take advantage of the provisions of section 5
of the Defamation Act 1952.

The anti-Zionist conference, the Moscow archive and section 5 of the
Defamation Act 1952

13.165 My overall finding in relation to the plea of justification is
that the Defendants have proved the substantial truth of the
imputations, most of which relate to Irving's conduct as an historian,
with which I have dealt in paragraphs 13.7 to 13.127 above. My finding
is that the defamatory meanings set out in paragraph 2.15 above at (i),
(ii), (iii) and the first part of (iv) are substantially justified.

13.166 But there are certain defamatory imputations which I have found
to be defamatory of Irving but which have not been proved to be true.
The Defendants made no attempt to prove the truth of Lipstadt's claim
that Irving was scheduled to speak at an anti-Zionist conference in
Sweden in 1992, which was also to be attended by various representatives
of terrorist organisations such as Hezbollah and Hammas. Nor did they
seek to justify Lipstadt's claim that Irving has a self-portrait by
Hitler hanging over his desk. Furthermore the Defendants have, as I have
held, failed in their attempt to justify the defamatory imputations made
against Irving in relation to the Goebbels diaries in the Moscow
archive. The question which I have to ask myself is whether the
consequence of the Defendants' failure to prove the truth of these
matters is that the defence of justification fails in its entirety.

13.167 The answer to that question requires me to decide whether (I am
paraphrasing section 5 of the Defamation Act 1952) the failure on the
part of the Defendants to prove the truth of those charges materially
injures the reputation of Irving, in view of the fact that the other
defamatory charges made against him have been proved to be justified.
The charges which I have found to be substantially true include the
charges that Irving has for his own ideological reasons persistently and
deliberately misrepresented and manipulated historical evidence; that
for the same reasons he has portrayed Hitler in an unwarrantedly
favourable light, principally in relation to his attitude towards and
responsibility for the treatment of the Jews; that he is an active
Holocaust denier; that he is anti-semitic and racist and that he
associates with right wing extremists who promote neo-Nazism. In my
judgment the charges against Irving which have been proved to be true
are of sufficient gravity for it be clear that the failure to prove the
truth of the matters set out in paragraph 13.165 above does not have any
material effect on Irving's reputation.

13.168 In the result therefore the defence of justification succeeds.

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