Newsgroups: alt.revisionism Reply-to: firstname.lastname@example.org Subject: Irving v. Penguin & Lipstadt: Judgment XIII-05 Organization: The Nizkor Project Keywords: David Irving libel action Deborah Lipstadt Archive/File: people/i/irving.david/libel.suit/judgment-13.05 Last-Modified: 2000/04/11 13.113 Some time was spent during the evidence viewing a video of a meeting in Halle on 9 November 1991, which was attended by Irving at the invitation of Ursula Worch (see paragraph 10.12 above). Irving complains that the film has been edited and re-edited so as to present him in a prejudicial light. I do not accept that the effect of the editing materially distorts the nature of the meeting. Irving can be seen watching assorted groups, many of them in uniform, march towards the meeting place. Irving is shown on the platform when he was introduced to the crowd. He then addressed the meeting. There is nothing objectionable in what he is recorded as having said. He can be seen shaking his head in disapproval when Nazi slogans such as "Sieg Heil" are chanted. He spoke in the early afternoon and claimed in his evidence that he left soon afterwards. His diary, however, records him as having left at 5pm. I believe that he remained at the meeting for longer than he was prepared to admit. The significance of the video of the Halle meeting, in my judgment, is that it evidences Irving's willingness to participate in a meeting at which a motley collection of militant neo-Nazis were also present. 13.114 The evidence supports the claim that Irving has associated with several extreme right-wing organisations in the US. He has a close and longstanding relationship with the Institute of Historical Review (see paragraph 10.23 above). It is an avowedly revisionist organisation whose membership undoubtedly includes many from the extreme right wing. Irving agreed that the membership of the IHR includes "cracked anti-semites". The evidence indicates that Irving is also associated with the National Alliance. I accept the Defendants' case as set out in paragraph 10.24 above. In my view Irving cannot fail to have become aware that the National Alliance is a neo-Nazi and anti-semitic organisation. The regularity of Irving's contacts with the National Alliance and its officers confirms Irving's sympathetic attitude towards an organisation whose tenets would be abhorrent to most people. Right-wing individuals 13.115 I am satisfied that Irving has associated to a significant extent with the following individuals: Frey, Deckert, Althans, Philip, the Worches, Christophersen, Staglich, Rami, Varela, Zundel, Remer, Weckert and Faurisson. They are described in paragraphs 10.8 to 10.25 above. They are all right-wing extremists. I have no doubt that most, if not all of them, are neo-Nazis who deny the Holocaust and who are racist and anti-semitic. I also have no doubt that Irving was aware of their political views. His association with such individuals indicates in my judgement that Irving shares many of their political beliefs. Irving's accounts of the bombing of Dresden 13.116 The immediate question is whether the Defendants have justified their criticisms of Irving's account, principally in The Destruction of Dresden, of the circumstances and consequences of the Allied bombing raid on Dresden on the nights of 13 and 14 February 1945. The principal allegation is that Irving relied on forged evidence. But the Defendants also accuse him of misrepresentation, falsification, suppression of the evidence and twisting the facts for his own purposes (see paragraph 11.5 above). Irving's reliance on the forged Tagesbefehl No. 47 13.117 The forged evidence on which Irving is said to have relied is Tagesbefehl (Order of the day) No 47 ("TB47"). The majority of the Defendants' criticisms relate to or are connected with the way in which Irving dealt with this document. 13.118 I have set out in detail in paragraphs 11.9 to 11.40 above the history of the forged TB47 and the parties' respective arguments about Irving's reliance on it. In my judgment there are serious criticisms to be made of Irving's use of this document. In the first place Irving knew all along that there were powerful reasons for doubting the genuineness of the purported TB47. It had been denounced by Seydewitz as fraudulent. Indeed Irving himself was aware that Goebbels had been seeking to take propagandist advantage of the raid by making exaggerated claims as to the number of deaths. Irving in1963 described the so-called TB47 as "spurious" (although I accept that at that date he had not seen a copy). When he did receive a copy, he was warned by Lange, the Dresden archivist, that it was a patent forgery. I accept the evidence of Evans, which I have summarised at paragraph 11.18 above, that there were features within the document itself which cast doubt on its bona fides. Irving therefore had every reason to be suspicious about the claim that the death toll might ultimately be 250,000. 13.119 Yet when in 1964 Irving received a copy of TB47 from Funfack via Hahn, he appears to have been eager to accept the document as a true copy and the figures claimed in it as accurate. I am not persuaded that there is any valid explanation for Irving's change of heart about the genuineness of the document. Indeed in a memorandum written shortly after he obtained his copy of TB47 Irving expressed distinct reservations about its authenticity and the accuracy of the figures contained in it. In these circumstances it was in my view incumbent of Irving, as a responsible historian, to treat the document with extreme caution. He should have verified the provenance of the document with Funfack and with anyone else in a position to assist. In the meantime he should not have made use of so suspect a document. 13.120 There is no evidence that Irving sought Funfack's comments about the document. He did nothing to dispel the doubts he had previously entertained about it. In these circumstances it was in my judgment reprehensible for Irving to write to the Provost of Coventry Cathedral enclosing a copy of the supposed TB47 and expressing himself to be in no doubt as to its authenticity. It was equally reprehensible of Irving to write in similar terms to his German publisher. 13.121 Irving's conduct thereafter is even less defensible. As I have described in paragraph 11.14 above, he was told by Funfack that he was in no position to vouch for TB47. I accept that Irving was also told by Funfack of the estimates of 180,000 and 140,00 put on the number of casualties by Mehnert and Fetscher respectively. But that information (which was never verified) did little to remove the suspicion surrounding TB47. I do not accept Irving's explanation that he disbelieved what Funfack told him because he was living in a regime which was still Communist and was fearful of the consequences of being linked to the Nazi regime. Nor can I accept that the recollection of Frau Grosse of the estimate her husband had put on the number of casualties should have weighed significantly with Irving in assessing the reliablity of the figures in TB47. 13.122 Irving made reference to the fake TB47 as a genuine document in the Italian edition of Dresden in terms which suggested that it was a genuine document. Doubts about the authenticity of the document were subsequently increased yet further by Miller's letters to Irving to which I have referred at paragraph 11.19. Irving's disregard of that apparently credible evidence was, in my view, a further grave lapse on his part. His explanation that he considered that Miller was "fantasising" when he gave a figure of 30,000 deaths strikes me as absurd. There was nothing in what Miller wrote to suggest to an objective commentator that Miller was other than a credible and reliable witness. (In the event the figure in the genuine TB47 turned out to be 25,000 which was close to Miller's figure). The subsequent publication of TB47 in an appendix to the 1966 Corgi edition of Dresden without the expression of any reservations about its genuineness or the figures contained in it was in my view another grave lapse on Irving's part. 13.123 The Final Report and Situation Report No 1404, to which I have referred in paragraphs 11.23 and 11.24 above, would have been regarded by any dispassionate historian as conclusive proof that the purported copy of TB47 was a fake and that there was good reason to suppose that the death toll was in the region of 25,000. This was the figure accepted by Reichert in his book on the bombing, which is regarded by Evans as authoritative. I accept that Irving is entitled to credit for having taken the unusual step of writing to the Times about the new casualty figure. But that does not in my judgment excuse the doubts he continued to cast upon the accuracy of the new figure, still less does it excuse the grossly inflated claims as to the number of casualties which Irving continued to make in a subsequent edition of Dresden and in the speeches detailed in paragraphs 11.6 and 11.7 above. 13.124 When asked what was the supporting evidence for these inflated claims, Irving relied on the estimates for the number of casualties made by Mehnert and Fetscher and on the recollection of Frau Grosse, which I have mentioned. He also testified that his claims had been based on estimates as high as 250,000 which he had received from a great many individuals. Irving neither identified the individuals nor disclosed the letters. He prayed in aid also the fact that there were in Dresden at the time an unquantified number of refugees fleeing before the advancing Russian army. Finally he relied on the estimate of Hans Voigt, summarised in paragraph 11.52 above, that 135,000 had been killed. But, as stated in paragraph 13.126 below, none of this material casts significant doubt on the accumulation of evidence that the true death toll was within the bracket of 25-30,000. Whether Irving has attached credence to unreliable evidence and/or failed to take account of reliable evidence 13.125 The unreliable evidence upon which, according to the Defendants, Irving was unjustified in relying is set out in the preceding paragraph. Historical evidence cannot of course be compartmentalised into reliable and unreliable evidence. It is part of the skill of an historian to evaluate the degree of individual items of evidence, seeking to adopt a consistent approach throughout. 13.126 It appears to me that the evidence which I have summarised in paragraph 13.124 affords a very slender basis for the claims which Irving has made for the numbers killed in the raids. The evidence of Mehnert, Fetscher and Frau Grosse was secondhand and unverified. In the absence of any indication on what they were based, I do not consider the Irving should have given any credence to estimates in letters from unidentified individuals. His speculation about the number of refugees does little to cast doubt on the reliability of the figures quoted in the official reports. Voigt's evidence was uncorroborated and unlikely to be correct in the light of the number of deaths recorded on the official cards. In my view, Irving should not have quoted numbers based on this evidence. Irving should have taken far greater account of the doubts about the genuineness of TB47; of the cogent and credible evidence of Miller and above all of the figures contained in the Final Report and in Situation Report No 1404. Having done so, Irving should have discounted altogether the unsatisfactory evidence collected in paragraph 13.124 above. In my judgment the estimates of 100,000 and more deaths which Irving continued to put about in the 1990s lacked any evidential basis and were such as no responsible historian would have made. Whether Irving has bent of falsified or misrepresented evidence 13.127 I am not persuaded that the criticism of Irving for the way in which he presented the statistical evidence of Dr Sperling is justified. I accept the explanation given by Irving why he chose to rely on his higher figure, namely that the estimate which he gave unofficially in a letter was the most reliable one. In the light of Irving's assertion that he had seen evidence which established that Mehnert had informed Kleiner that his estimate of the number of deaths was 40,000, I am not prepared to accept the Defendants contention that this was an invention on Irving's part. The other criticisms of Irving under this head have already been addressed in the earlier paragraphs of this section of the judgment. Irving's conduct in relation to the Goebbels diaries in the Moscow archive 13.128 I do not consider that the issues as to Irving's conduct in relation to the Goebbels diaries in the Moscow archive have any bearing whatsoever on the central issue of Irving's conduct as an historian. But Irving complains of Lipstadt's account of his conduct and the Defendants seek to justify those criticisms. I shall therefore deal with this discrete issue now. 13.129 The two questions raised by this part of the plea of justification are, firstly, whether Irving broke (or, to use Lipstadt's word, violated) an agreement with the Moscow archive in regard to his use of the glass plates on which the Goebbels diaries were inscribed and, secondly, whether by the manner in which he handled the plates Irving placed them at risk of damage. The alleged breach of agreement 13.130 There were two occasions on which Irving removed plates from the archive: the first was on 10 June 1992, when he wanted to make copies of the plates; the second was on the following day when he removed two more plates in order to take them to London for testing. The two occasions need to be considered separately. 13.131 In relation to the first occasion, as I have summarised in paragraphs 12.9 and 12.17 above, there was a conversation between Millar and Tarasov, who telephoned Bondarev to tell him to grant Irving access to the diaries. Irving stressed (and Millar confirmed) that there was no agreement as such with the Russians. I accept that there was nothing more than a single conversation between Millar and Tarasov. But it is possible to infer an agreement from that conversation and from the parties' subsequent conduct. In my view it is right to do so. 13.132 Was there an implied term of that inferred agreement that Irving should not remove the plates from the archive? This question falls to be answered by reference to the circumstances as they existed in Moscow at the time. According to Irving, the archive was in a state of chaos. The Russians were willing to sell archive material if the price was right. There were no copying facilities in the archive. Irving testified that it was neither here nor there to the archivist if he removed the plates. I bear in mind that Irving acknowledged that he removed the plates "illicitly". But he denied breaching any agreement and I took him to mean that the removal was illicit in the sense that in normal circumstances an historian would not remove material from an archive. In these somewhat unusual circumstances I am not persuaded that Irving broke an agreement when he removed the plates overnight to have them copied. 13.133 The second occasion when plates were removed was rather different in the sense that Irving sought and obtained permission to remove the plates from the archive. The breach of agreement, according to the Defendants, arises out of the fact that, having removed the plates from the archive, Irving then took them to England to have them tested prior to their return to the archive. Was this a breach of the arrangement? Irving did not tell the Russians of his intentions. But there is no evidence that the Russians showed interest or concern what would happen to the plates whilst they were out of the archive. I have no doubt that it was throughout Irving's intention to return the plates. I am not satisfied that a breach of an implied term of the arrangement has been established by the Defendants. The alleged risk of damage to the plates 13.134 It is clear to me that, according to what Lipstadt wrote in Denying the Holocaust and the Summary of the Defendants' case, her allegation was that the risk of damage arose on the occasion of the second removal of plates from the archive. According to Lipstadt, it was the transport of the plates to England and the testing which took place here, followed by the return journey to Moscow, which gave rise to the risk of damage. It was this which caused "serious concern in archival circles" about significant damage to the plates. I do not consider that the evidence bears out the allegation that any real risk of significant damage did arise. According to the unchallenged evidence of Irving, the plates were at all times securely packaged. When they were in possession of others, I see no reason to suppose that they were at risk. Showing one plate at a meeting in Munich does not appear to me to give rise to a risk of damage. When Irving left the plates in Munich, whilst he made an excursion to Rome, they were left in the hotel safe. In England the tests were carried out in reputable laboratories belonging to Kodak and Pilkington. I am satisfied that the physical interference was minimal and caused no risk to the integrity of the plates. The emulsion of the plates was not tested. Irving may well be right in his comment that the plates were safer whilst in his custody than they were in the archive. Accordingly I do not accept that the allegation of risk of damage to the is made out in relation to their removal from the archive to be taken to England for testing. 13.135 But the Defendants advanced an argument that, on the occasion of the first removal on 10 June, the plates were put at risk when they were left during the afternoon hidden behind a wall on some waste ground a short distance from the archive. I am satisfied that the plates were carefully wrapped in cardboard and plastic thereby eliminating the risk of physical damage. So the only risk which might be said to arise was if someone came across the plates by chance and removed them. Bearing in mind how far this is removed from the risk of which Lipstadt wrote and the unlikelihood of a passer-by showing interest in a package consisting of a couple of pieces of glass, I am not prepared to find that the allegation of risk to the plates is proved. Assessment of Irving as an historian The issue as to Irving's motivation 13.136 After that brief digression to Moscow, I return to the central issue of Irving's historiography. As I have already held, the passages in Denying the Holocaust of which Irving complains include as an important part of their defamatory sting the meaning that he has deliberately falsified and distorted the historical evidence because he is an apologist for and a partisan of Hitler and on that account is intent on exonerating him. 13.137 Irving considers, rightly, that this is a grave imputation because it reflects on his integrity as an historian. It is an imputation which the Defendants have sought to justify. Because of the seriousness of the charge, the standard of proof required is, in accordance with the approach which I have outlined in paragraph 4.10 above, commensurately higher. It goes without saying that it is an issue which requires anxious consideration. 13.138 It is necessary to define clearly what is the issue which must be decided. In the earlier parts of this section of the judgement, I have made findings adverse to Irving in relation to his historiography and in relation to his account of Hitler's attitude towards the Jews including in particular Hitler's complicity in the policy of exterminating them. I have further made findings, also adverse to Irving, in relation to his claims about Auschwitz and in relation to his account of the bombing of Dresden. Irving sought to defend what he has written and said as being a fair and accurate account of the historical evidence available to him. In the respects already set out in detail in this judgement, I have in the main found against him. But the Defendants must, as they accept, go further if they are to succeed in their plea of justification: they must establish that the misrepresentation by Irving of the historical record was deliberate in the sense that Irving was motivated by a desire borne of his own ideological beliefs to present Hitler in a favourable light. Irving's case is that, if (which he denied but which I have found) he has misrepresented the evidence, such misrepresentation was innocent in the sense that it arose through simple mistake or misapprehension. He denied the charge of deliberate falsification or perversion of the evidence.The issue which I must decide is whether the Defendants have proved that denial to be false. The relevant considerations 13.139 Issues as to a person's motivation have to be decided by reference not only to the direct evidence of the person concerned (in this case Irving) but also by reference to the surrounding circumstances from which inferences as to his motivation may be drawn. In the present case such circumstances include the nature and extent of the misrepresentations of the evidence together with Irving's explanation or excuse for them. But in my judgment it is relevant to take into account also such matters as Irving's conduct and attitudes outwith the immediate context of his work as a professional historian, including the evidence of his political or ideological beliefs as derived from his speeches, his diaries and his associates. I also consider that it is material to have regard to the manner in which he has conducted these proceedings. These are all matters from which inferences may legitimately be drawn as to Irving's motivation. The convergence of the historiographical misrepresentations 13.140 Historians are human: they make mistakes, misread and misconstrue documents and overlook material evidence. I have found that, in numerous respects, Irving has misstated historical evidence; adopted positions which run counter to the weight of the evidence; given credence to unreliable evidence and disregarded or dismissed credible evidence. It appears to me that an analysis of those instances may shed light on the question whether Irving's misrepresentation of the historical evidence was deliberate.
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