The Nizkor Project: Remembering the Holocaust (Shoah)

Shofar FTP Archive File: people/i/irving.david/libel.suit/transcripts/day032.06


Archive/File: people/i/irving.david/libel.suit/transcripts/day032.06
Last-Modified: 2000/07/25

                  And "that the true or legal innuendo of the word
         'Hizbollah' is that used to refer to and describe a known
        international terrorist organization ... in the Lebanon,
        also known as Hizbollah whose guerrillas kill Israel
        citizens and soldiers ... provoking retaliation, and which
        organization has been determined by President Clinton ...
        as being among the enemies of peace and, whose officials
        and armed activists are now being hunted down by the ...
        Israeli army".

                  As for the Hamas, much the same, I set out in
        paragraph 12 of my statement of claim that "the true or
        legal unnuendo of the words 'Hammas' is that of an Islamic
        fundamentalist terrorist organization similar in nature to
        the Hizbollah".

                  I submitted to your Lordship at the beginning of
        this trial a representative selection of news reports from
        reputable, reliable outlets, including the BBC, on the
        murderous nature of the organizations involved, concerned.

                  In my pleadings I also argued that by these

.          P-59

        allegations I had "been brought into hatred, ridicule,
        contempt, risk of personal injury and/or assassination".
        I know, my Lord, the law of defamation has no concern for
        people's personal safety, but it certainly has concern for
        their reputation; and the allegation that I was consorting
        with the violent extremist body who goes around with
        machine guns and bombs and bullets is substantially more
        serious, in my view, than the allegation that I consort
        with people who use their fountain pens to disseminate
        crack pot ideas.

                  In my pleadings -- the nature of the libel, and
        the damage that it caused, hardly needed arguing in detail
        here.  Put in into domestic context, if the Defendants, if
        the Defendants, had equally untruthfully stated, for
        example, in a Channel 4 television documentary (and there
        is a reason why I say that) that I had consorted with
        Ulster loyalist death squads who were part of a conspiracy
        to murder Roman Catholic nationalists, itself a grave
        accusation which would also put me at risk of
        assassination, and if the Defendants made no attempt to
        justify that libel, then I respectfully submit that your
        Lordship would have no hesitation giving judgment in my
        favour.  I submit there is no difference fundamentally
        between these examples.

                  Now, I was going to say that the Defendants have
        relied on section 5 of the Defamation Act, but

.          P-60

        I understand from what Mr Rampton said yesterday that they
        are not relying on that section 5 at all, my Lord.

   MR JUSTICE GRAY:  No, I do not think that is quite right.  I
        think what he said was that they say they do not need
        section 5, that is their primary position, but that if
        they do need it, then, indeed, they rely on it.  So do not
        assume that it has disappeared out of the picture because it has not.

   MR IRVING:  In that case, I will leave it as I originally
        wrote.  I am aware that your Lordship is also capable, of
        course, of putting something in section 5 if you consider
        it to come under section 5.

   MR JUSTICE GRAY:  I probably would be, but that I believe to
        Mr Rampton's position.

   MR IRVING:  This is not the place to make a submission, but my
        position is that there is no common sting between those
        allegations.  They are totally different kinds of extremism.

   MR JUSTICE GRAY:  Elaborate on that later.

   MR IRVING:  In other words, they accuse a respectable
        Englishman of consorting with terrorists and murderers,
        and then plead the relative insignificance of the
        accusation when it turns out to be a reckless lie.  And
        there are other incendiary lies which they have stuffed
        into that particular sand-bucket, section 5 of the
        Defamation Act, in the hope that they will sputter out:

.          P-61

        the Defendants repeated the story in that book - first
        published in Izvestia - that I placed a portrait of Adolf
        Hitler over my desk.  For that lie -- I have had hundreds
        of journalists visiting me over the 30 years and never
        once has that picture occurred to any of them for there is
        no such picture.  For that lie too they have offered no
        justification.  I read incidentally recently in Literary
        Review that Lloyd George had signed photographs of both
        Hitler and Mussolini on display, and that was a British
        Prime Minister.  The only signed paragraph in my
        apartment, as many journalists have observed, is one of
        Sir Winston Churchill.

                  So I submit that your Lordship should not accept
        the Defendants' contention, if they wish to stand by it,
        that these allegations should be disregarded on the basis
        of section 5.  Even if they could sufficiently justify
        their claim that I deliberately bent history in favour of
        Hitler, and I do not believe they can, I submit that they
        have not, it would still "materially injure the
        plaintiff's reputation", which is the word of the Act,
        section 5, to say that I had a portrait of Hitler above my
        desk.  The claims which they do seek to justify suggest
        that I am culpably careless and (perhaps unconsciously)
        sympathetic to Hitler; bad enough, bad enough, but having
        a portrait of that man -- I am sorry, having a portrait of
        that man above my desk implies a full-hearted 100 per cent

.          P-62

        conscious commitment to that man, which is very
        different.

                  I have provided your Lordship on an earlier
        occasion in one bundle a number of passages quoted from
        AJP Taylor's works, a very famous English historian and
        writer.  Taylor himself accepted that they inevitably
        improved Hitler's image -- the words that Taylor had
        written -- maybe he did not originate the actual mass
        murders himself, wrote Taylor; maybe he did slip into war
        with Britain rather than planning it; maybe the Anschluss
        with Austria was more a stroke of good fortune, which he
        grasped, rather than long planned as a take-over; maybe
        the Nazis did not burn down the Reichstag building in
        1933.  These views of Taylor have been criticised as being
        wrong, even as being too sympathetic to Hitler.  But
        everybody would accept that to suggest that Taylor had a
        portrait of Hitler "over his desk" would suggest something
        far worse.  So it should be for me too.

                  Again, for the purpose of section 5, the
        allegation that I bend history in favour of Hitler because
        I am said to admire him, and that I consort with other
        people holding such views, is a very different kettle of
        fish from stating, as the Defendants do, that I consort
        with people who are widely regarded as violent and
        murderous terrorists.

                  I continue now from the bottom of the page:

.          P-63

                  My Lord, the Court will be aware from the very
        outset I argued that this hearing should not, effectively,
        leave the four walls of my study, where I wrote my books;
        and that what actually happened 50 or 60 years ago was of
        less moment to the issues as pleaded.  The matter at
        issue, as pleaded by the Defendants, is not what happened,
        but what I knew of it, and what I made of it, at the time
        I put pen to paper.  We had some argument on that matter,
        my Lord.  To take crude example: neglecting to use the
        Eichmann memoirs, releases to us only a few days ago, had
        they contained startling revelations - which they did not
         - could not have been held against me because they were
        not available to me in the 1960s, 1970s or 1980s.  But
        your Lordship took a different view and I respectfully
        submit that it was wrong.

   MR JUSTICE GRAY:  May I interrupt you again?  I do not think
        that is right.  I think everybody agrees that the Eichmann
        memoirs, because they have surfaced so late, really have
        no bearing on this trial at all.

   MR IRVING:  I gave that as a particularly crude example of why
        what mattered was what happened in the walls of my study
        as I wrote, what was on my desk, so to speak, and not what
        actually happened.

   MR JUSTICE GRAY:  I see.

   MR IRVING:  Your Lordship took a different view, and
        I respectfully submit that it was wrong.  The Defendants

.          P-64

        have invested a sizeable fortune in reresearching the
        Holocaust, and possibly for that reason we have all been
        dragged through that vast and inhuman tragedy yet again,
        because of the money spent on it now, and again quite
        needlessly, in my submission.  It would have sufficed for
        their purposes if they could have proved, on the basis of
        the total disclose of my files which I made to them and
        their experts, that I had indeed "distorted, misstated,
        misquoted and falsified", their words.  Fearing or
        finding, however, that they were unable to prove wilful
        fraud, in effect, in my submission, they have fallen back
        on the alternative plea in the tort of negligence: that
         "Mr Irving ought to have known".  I respectfully submit
        that this unsettle change of defence should not have been
        allowed to them, it should not have been available to
        them, as it was not pleaded at the outset.  It has to be
        specifically pleaded, in my submission, my Lord, at the time.

                  If my submission on the law is, however, wrong,
        then your Lordship must ask what effort would have been
        reasonable on the part of an individual historian, acting
        without institutional support like that of Yad Vashem, and
        with the doors of the archives increasingly being slammed
        against him because of the activities of the bodies to
        which I shall shortly refer.  What it would have been
        reasonable to expect me to do to find out what happened?

.          P-65

        These Defendants have reportedly spent some $6 million,
        and 20 man-years or more, in researching this case:  this
        blinding and expensive spotlight has been focused on the
        narrowest of issues, yet it has still generated more noise
        than illumination.  I heard the expert witnesses who were
        paraded before us use phrases like the "consensus of
        expert opinion" as their source so often - in fact, I did
        a check, the word "consensus" occurs 40 times in the daily
        transcripts of this trial - that I began to wonder what
        the archives were for.  I suggest that these experts were
        more expert in reporting each other's opinions and those
        of people who agree with them than in what the archives
        actually contain and what they do not contain which is
        equally important.

                  The phrase "Holocaust denier", which the Second
        Defendant boasts of having invented, is an Orwellian
        stigma.  It is not a very helpful phrase.  It does not
        diminish or extend thought or knowledge on this tragic
        subject.  Its universal adoption within the space of a few
        years by media, academia government and even academics
        seems to indicate something of the international endeavour
        of which I shall shortly make brief mention.  It is, in my
        submission, a key to the whole case.  Perhaps this court
        should raise its gaze briefly from the red and blue files
        and bundles that are around the court room of documents
        for a brief moment, and re-read George Orwell's appendix

.          P-66

        to "1984", which seems very relevant to this case.

                  From the witness box, with its revelations of
        the "consensus of opinion", and "moral certainty", and the
        mass male voice choir of the "social sciences" that we
        heard about from Professor Funke, on which the Defendant's
        German expert, Professor Hajo Funke, relies for his
        certainty, his certainty, as to what is right-wing
        extremism, we seem hear more than a vague echo of
        Orwellian Newspeak -- a language that moulds minds, and
        destroys reputations and livelihoods.

                  Orwell was wrong in one point:  he thought it
        would take the forces of the State to impose Newspeak:
        Professor Lipstadt and her reckless publishers Penguin
        Books Limited -- I shall justify that adjective -- have
        sought to impose it through the machinery of the literary
        and media establishments.  Only the Royal Courts of
        Justice here in London, independent and proud, can protect
        the rights of the individual from now on.   And those
        rights include the right, as Lord Justice Sedley recently
        put it in another Court in this building, of any person to
        hold to, and to preach, unpopular views, perhaps even
        views that many might find repellent.

                  My Lord, I have not hesitated myself to stand
        here in the witness box and to answer questions.
        Mr Rampton rose to the occasion, and he, or indeed I, may
        yet regret it.  Your Lordship will recall that, when

.          P-67

        I brought a somewhat reluctant and even curmudgeonly
        Professor Donald Watt, who is not the Professor
        I mentioned earlier incidentally, doyen of the diplomatic
        historians, into the witness box, he used these words:

                  "I must say, I hope that I am never subjected
        to the kind of examination that Mr Irving's books have
        been subjected to by the defence witnesses.  I have a very
        strong feeling that there are other senior historical
        figures, including some to whom I owed a great deal of my
        own career, whose work would not stand up, or not all of
        whose work would stand up, to this kind of examination".

                  I am not throwing myself on the charity of this
        court, my Lord, but I am asking that the court should be
        reasonable in the standards that it sets.  That
        effectively is a line that Professor Watt has supported me
        in.  It is fair to say, of course, that I had to subpoena
        Donald Watt.

   MR JUSTICE GRAY:  Yes, I am aware.

   MR IRVING:  When I invited him to mention some names, of
        course, he declined.  What he was saying was that whatever
        mistakes or whatever unconventional interpretations of
        mine, the Defendants have revealed with their
        multi-million dollar research, and I am going to admit
        some mistakes that I have made, not many, this does not
        invalidate me as an historian, or my historical methods
        and conclusions.

.          P-68

                  Your Lordship will find that Professor Watt
        continued by suggesting that simply by facing the
        challenge of the views that I had put forward, "and basing
        them on historical research rather than idealogical
        conviction," this had resulted in other historians
        devoting an "enormous burst of research" to the Nazi
        massacres of the Jews, an area which can now in
        consequence support journals and conferences.  He said,
        "This, I think, is a direct result of the challenge which
        Mr Irving's work posed and the consistency and the effort
        which he has put into maintaining it in public".  In other
        words, I forced the others to do their homework finally at
        last.  In other words, Watt stated that, far from being a
        Holocaust denier, my work has directly increased
        historical research into, and the understanding of, the
        Holocaust.

                  The German Professor Eberhard Jaeckel made the
        same controversial -- and he is no friend of mine, of
        course -- point in his essay in the book published by the
        Us Holocaust Memorial Museum a year or two ago, namely
        that before my book Hitler's War was published in 1977,
        the first edition, there had been virtually no meaningful
        research into the tragedy at all.  Professor Hans Mommsen,
        Professor Raul Hilberg, Professor Gordon C Craig, these
        and many others have more or less supported my claim to be
        regarded as a serious historian.  I of course say things

.          P-69

        like that with the utmost personal distaste.  I do not
        believe in blowing my own trumpet.  The outcome of my
        research, my books, and my speaking is therefore that
        people in general are more, and not less, aware of the
        horrors of the Holocaust, and they are certainly better informed.

                  One of the most damaging accusations which Mr
        Rampton has repeated again this morning, is that I, the
        plaintiff, driven by my obsession with Hitler, distort,
        manipulate and falsify history in order to put Hitler in a
        more favourable light, thereby demonstrating a lack of the
        detachment, rationality and judgment necessary for an historian.

                  I submit that, in assessing whether I am an
        historian who "distorts, manipulates and falsifies" your
        Lordship should give most weight to my avowedly historical
        written works.  Your Lordship will be thoroughly aware of
        why I am saying this.  I suggested my speeches, very
        occasional lapses of taste in them, lapses of taste
        Mr Rampton has identified and mentioned repeatedly,
        I think three altogether, are relevant purely as
        background material.  Of those written historical works,
        I submit that your Lordship give most weight to my
        flagship work Hitler's War.  I ask that your Lordship read
        (again, if your Lordship has already done so) the
        introduction to the 1991 edition.  This was published well

.          P-70

        after the year when the Defendants (wrongly) assert that
        I "flipped over" to become what they call a Holocaust denier.

                  I have always differed from my colleagues in my
        profession in insisting on using original documents,
        including where possible the authors' drafts of books or
        memoirs rather than the heavily edited West German
        editions, later rewritings, or posthumous adaptations.  I
        also make use of many more unpublished original documents
        than my historian colleagues, in my belief.  In the 1960s
        and 1970s, I must add, of course, that was much more
        difficult than it is today.


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