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In the High Court of Justice

DJC Irving

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Penguin Books Ltd and Deborah Lipstadt

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In 1993 American scholar Deborah Lipstadt published Denying the Holocaust, product of a research contract funded by an Israeli agency.

British writer David Irving claims that it libels him.


Defendants' Submissions
in accordance with the directions of Sedley LJ, Sept. 6, 2000

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Defendants' Submissions (continued)


Hitler's meetings with Admiral Horthy: G90-97 [5]

33. The Grounds make no mention of the judge's adverse conclusion as to Irving's treatment of Hitler's meeting with Antonescu (J13.43-44). It is therefore assumed that Irving accepts it.

34. As to the meetings with Horthy (there were two):

(1) the judge did not overlook the point canvassed at G91: see J5.213;

(2) the point made at G92 and G93 (and G66), besides being trivial, is a bad one. A retrospective approach is logical, normal for historians, and wholly unobjectionable: see the opinion of Longerich, recorded at J6.92. For its application to this issue, see J5.201.

(3) G95 reveals no basis for doubting the correctness of the judge's findings which are quoted in G94. The fact is, as Irving must have known, that on 16 and 17 April 1943, the Warsaw uprising was still 2 or 3 days away (J5.205). Moreover, although it was common ground that on 17 April Hitler mentioned the Allied bombing, this paragraph suppresses the fact, as did Irving in Hitler's War, that Hitler is recorded as having said that he regarded the bombing as 'irritating, but wholly trivial' (ibid).

(4) G97 proposes that Irving's transposition of Hitler's palliative remarks on 16 April (see G96) to 17 April was 'accidental'. There is no warrant for this in the evidence given at trial, and it is anyway not credible, given Irving's knowledge of German and his acceptance of the accuracy of the record of the meeting on 17 April 1943 made by Schmidt (J5.211). The paragraph also suggests that the transposition 'makes no difference'. This is absurd; as the evidence showed, when the relatively gentle approach adopted by Hitler and Ribbentrop on 16 April failed, they resorted the next day to a much harder line (J5.203, J5.204, J5.206). Therefore, Irving's transposition of Hitler's relatively gentle remarks of 16 April to the meeting on 17 April, persisted in even when the error had been drawn to his attention (J5.212), must have been deliberately designed, as the judge found, to water down the brutal effect of what Hitler and Ribbentrop had actually said on 17 April. This conclusion is fortified by Irving's deliberate suppression in the 1991 edition of Hitler's War of Hitler's repellent analogy at the 17 April meeting between the need to kill animal pests and the need to kill Jews (J5.204, J5.207, J13.44).

Once again, the Grounds fail to address the true substance of these falsifications, their obvious gravity, and their place in the pattern of Irving's attempts to exculpate Hitler.


Himmler minute of 22 September 1942: G98-99 [6]

35. G98 and G99 in fact refer to this document, not to the note of 10 December 1942 under which they appear (which is dealt with below). It is true (G99) that Irving included the whole of the minute in Hitler's War 1991, but it is quite untrue that he left his readers to 'make up their own minds', because he introduced the minute (which he mistakenly dated 17 September) with the words 'Himmler meanwhile continued to pull the wool over Hitler's eyes'. There was, as the judge found (J13.40), no historical warrant for this obvious invention (rather the contrary). The Grounds make no attempt to deal with this point, nor with the broader consideration that this is yet another falsification by Irving whose tendency is to exculpate Hitler.


Himmler's note for a meeting with Hitler on 10 December 1942: G100 [7]

36. The first sentence of G100 is wrong. In Hitler's War (1991), Irving suppressed the crucial contrast between the likely fate of the 10,000 well-to-do Jews and that of the 600,000 who were to be deported (J5.196, J13.41). The second sentence of G100 is irrelevant.


The liquidation of the Jews of Rome: G101 [8]

37. Although the words in parenthesis at the end of the passage quoted in G101 were included in the 1977 edition of Hitler's War, this paragraph of the Grounds ignores the facts that:

(1) the words 'regardless of Hitler's order' were unwarranted, since, as the judge found (J13.45), the evidence , objectively analysed, did not support the assertion that Hitler intended that the lives of the Roman Jews should be preserved (rather the contrary); and

(2) the ultimate fate of the Roman Jews was suppressed entirely in the 1991 edition of Hitler's War (p590).


Himmler's speeches of 6 October 1943 and 5 and 24 May 1944: G102-103 [9]

38. G103 ignores:

(1) the words used by Himmler on 5 and 24 May 1944 (J5.223 and J5.224), to the effect that he had carried out the destruction of the Jews under orders (which, in Himmler's case, could only have come from Hitler);

(2) the judge's decisive rejection of Irving's fanciful explanations for Himmler's use of those words; and

(3) the fact that in the 1991 edition of Hitler's War Irving completely suppressed the speech of 5 May 1944 (which makes reference to 'this soldierly order').


Ribbentrop's evidence in his Nuremberg prison cell: G104-7 [10]

39. G107 misses the point: whether or not the words used by Ribbentrop, which are set out in G106, were 'speculation' or, on the contrary, the expression of a well-founded belief, no dispassionate, fair-minded historian would simply suppress them as Irving did. As the judge found (J13.48), such selective quotation was a breach of Irving's duty as an historian, the more so, since as Irving accepted (J5.239) it was deliberate. In addition, it was, as ever, designed to exculpate Hitler.


What documents had Hitler actually read? G108-110 (and 47(1))

40. The relevant parts of the judgment are J6.32-38 (relevant parts of Defendants' case); J6.46-59 (Irving's response); J13.56-58 (judge's findings). G108 and G109 give selective quotations from J13.57, which needs to be read in its entirety, together with the other paragraphs noted here.

41. As those paragraphs in the judgment show, the first sentence of G109 and the whole of G110 are simply wrong:

(1) there was ample evidence that Hitler was kept fully informed, at his own request, of the murderous activities of the Einsatzgruppen.

(2) Irving accepted in cross-examination not only that it was 'highly likely' that report No 51 was shown to Hitler (J6.58), but also that the massacre of Jews in the Ostland was carried out on the authority of Hitler and that 'there had been a systematic programme for the shooting of Jews and others of which Hitler was aware and which he approved' (J6.46).

42. It is true that Irving later sought to retreat from those concessions (J6.47-J6.59), but the judge was perfectly entitled, in the light of all the evidence, to reject Irving's restated position and to hold that Irving's concessions 'were rightly made' (J13.57). (The assertion in G47(1) that Irving has 'never denied that the Nazis and their allies committed systematic mass murder of Jews' in the East is untrue: see, for example, J8.19, J13.58, and 13.96.)

43. It follows that these paragraphs provide no basis for attacking the judge's finding (J13.58) that Irving was guilty (once again) of misrepresenting the historical evidence. And it is to be noted that the misrepresentation was once again designed to exculpate Hitler.


Reichskristallnacht: G168-178 [11]

44. As a reading of those paragraphs of the judgment shows, the criticisms of the judgment made in these paragraphs of the grounds are trivial and/or irrelevant, making no attempt to address the many trenchant findings against Irving which the judge made on both parts of this topic (see J13.15-J13.20), all of which powerfully demonstrate Irving's persistent tendency to falsity history in order to exculpate Hitler.

45. G171 refers to a document which was not disclosed by Irving until after the evidence at trial had concluded and, more important, which never formed any part of the source material for Irving's published statements about Hitler's part in the events of Reichskristallnacht which were so heavily criticised by Evans and the judge.

46. G178 is wrong: the judge was provided by the Defendants with documentary evidence that the broadcast was made during the afternoon of 10 November 1938, with the formal order to stop being issued at 4pm. The only 'evidence' which Irving gave in rebuttal of this was to state that he had been informed by a friend of his, Ingrid Weckert (as to whom, see J10.20, J13.115), that the broadcast had begun in the morning.


Hitler's Trial in 1924: G179-181 [12]

47. Again, these paragraphs fail to address the substance of the judge's (relatively mild) criticisms of Irving, whose chief significance is that they confirm that Irving has used every opportunity to bend the evidence in Hitler's favour.


The Berlin crime statistics for 1932: G182-183 [13]

48. G182 is irrelevant: Irving did not produce the material referred to at trial and the judge anyway made no finding about Interpol. G183 is inconsequential. The fact is that Irving relied unhesitatingly on an obviously unreliable source (J13.13), whose figures, exaggerated for propaganda purposes, Irving did not bother to check against the official statistics and then himself further exaggerated (J5.34). Irving said that he had also used Kiaulehn and Wieglin, but since he did not or could not produce them in court, and given his proven habit of misrepresenting and falsifying his sources, the judge was quite entitled to be sceptical about whether they justified Irving's reliance on Daluege.


The bombing of Dresden: G184-188 [14]

49. The relevance of this issue is explained in J4.4, which Irving does not apparently challenge. It was therefore in no sense a 'side issue', but one which provided a valuable opportunity of assessing Irving's integrity as an historian on a topic unconnected with his Hitler-related 'chain of documents'. In the result, the judge's conclusions on this topic (see J13.118-126) properly led him to the further conclusion (at J13.141) that Irving's deliberate and persistent exaggeration of the Dresden casualty figures has enabled him to make (wholly false) comparisons between the numbers killed in Allied bombing raids and the numbers of Jews killed in the camps.

50. The judge's findings on this topic, based on a painstaking review of the evidence, are untouched by these paragraphs of the Grounds, which do not address the substance of the judge's findings, nor the totality of the evidence on which they were based (which included the matters referred to in G187)

51. It is wrong (G184) that this issue was introduced by the Defendants in November 1999: it formed part of the Defence served in February 1997; it was dealt with by Irving in his Reply, served in March 1997; and it was one of the topics dealt with in Evans' report, served in July 1999. It is also wrong (G188) that the Defendants' criticisms and the judge's findings related only to Irving's use of material available to him in 1960-1963: see J11.19-11.28 and J13.119-13.124.


Auschwitz - General: G111-G167

52. There were two respects, and two respects only, in which this issue was relevant at trial:

(1) It was the Defendants' case 'that there is a substantial body of evidence, from a variety of different sources, which should demonstrate to any fair-minded objective commentator that gas chambers were constructed at Auschwitz and that they were used to exterminate Jews on a massive scale' (J7.6; see also J7.15).

(2) It was also the Defendants' case that Irving was a Holocaust denier and, in particular, that he had repeatedly denied the existence of gas chambers at Auschwitz without having any good grounds for doing so (J7.7; see also J8.15-17).

53. The essence of the Defendants' case was that there was 'a 'convergence' of evidence which is to the ordinary, dispassionate mind, overwhelming that hundreds of thousands of Jews were systematically gassed to death at Auschwitz': J13.72, which also shows that the judge fully appreciated the significance of this convergence (see J7.75, J7.76).

54. In the result, having considered all the evidence, including the explanations and counter- arguments of Irving, the judge came to the 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' (J13.91). This decisive feature of the judge's finding on Auschwitz is ignored in these paragraphs of the Grounds.

55. Sixteen of Irving's denials of the existence of gas chambers at Auschwitz are set out in J8.17. On the basis of that evidence, the judge was enabled to conclude (J13.95):

'Not only has he [Irving] 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'

56. Moreover, the foundation of Irving's denials about Auschwitz, and for a long time their only foundation, was the so-called Leuchter Report, which he first read in April 1988 (J7.77 - J7.90). The Defendants, principally through van Pelt, sought to show that the Leuchter Report should be dismissed in its entirety as being flawed and unreliable (J7.113-117). In the event, in cross-examination, Irving accepted the validity of most of the Defendants' criticisms of the Leuchter Report (J7.114, J13.79). Thus the judge's damning conclusions at J13.80 as to the significance of Irving's reliance on the Leuchter Report was inevitable..

57. In the result, therefore, the Defendants succeeded on the only two areas of the case in which Auschwitz was relevant. The Grounds reveal no basis on which the judge's findings on these two issues could be disturbed.


Auschwitz and the other extermination camps: G114

58. This paragraph is selective and misleading: the reason why less time at trial was spent on the other camps (Chelmno, Semlin, Belzec, Sobibor and Treblinka) than on Auschwitz was that Irving was driven in cross-examination to concede, on the evidence, both the purpose of the camps (systematic extermination) and (so far as it mattered) the scale ('considerable') on which that purpose was carried out: J6.72, J6.106, J6.109, J6.110, J6.111, J13.63. It therefore became unnecessary to investigate the operation of these camps in any great detail. Accordingly, the judge's finding of which complaint is here made was entirely justified.


Auschwitz - the orthodox historical consensus: G115-123

59. The relevance of these paragraphs is not understood . The orthodox historical consensus is that the Nazis deliberately killed about 1.1million Jews at Auschwitz, mostly by gassing: J8.22


Auschwitz - the eyewitnesses (general): G124-128

60. The points made here are trivial and, in places (G126-127, G128), unsupported by any evidence given at trial (mere assertions put by Irving in cross-examination, unless accepted by the witness, are not evidence) . Moreover, these paragraphs misrepresent the significance which the judge attached to the eyewitness evidence: see J13.72, J13.91, referred to at 53 and 54 above, and in particular, J13.77, where the judge made it clear that the value of the eyewitness accounts is the extent to which they corroborate each other and are consistent with the documentary evidence, there being 'no evidence of cross-pollination having occurred' (see also J7.75).

  • The eyewitnesses - Marie Claude Vaillant-Couturier: G129-133 [15]

61. The only paragraphs in this section which call for comment are G132 and G133. Attached are copies, with the material passages highlighted, of (1) the relevant page of Judge Biddle's note of Mme Vaillant-Couturier's evidence and (2) Irving's own note of this page, made at Syracuse University, New York, on 11 August 1988, two days before his remarks in Toronto noted at J5.241. In the light of these documents, both of which were in evidence at trial, the judge's findings at J13.49 were inevitable and the comments made in these paragraphs of the Grounds valueless (and, in the case of G133, unsupported by any evidence given at trial).

  • The eyewitnesses: Kurt Aumeier

62. The criticisms of Irving contained in J13.50 are not mentioned anywhere in the Grounds. The Defendants assume therefore that Irving accepts them.


Auschwitz - the Bischoff document: G135-138

63. As to G135 and G136, the judge was right and G136 is wrong: see, for example, J6.51-6.52 (the Müller document). G137 and G138, besides being inconsequential, are misleading: the judge took full account of Irving's objections to the document and van Pelt's reasons for believing it to be authentic, and concluded, as he was entitled to do, that van Pelt was right and Irving wrong (J7.106, J7.129, J13.76). In reaching his conclusion on the authenticity of the document, the judge rightly said (J13.76):

'it does not seem to me that, despite its unusual features, a dispassionate historian would dismiss it out of hand, as Irving did, as a forgery' (emphasis added).


The Cavendish-Bentinck Memorandum: G139

64. It is not understood what criticism of the judgment G139 is intended to make. The judge was well aware of the document (J8.35), but decided, in the light of all the evidence (recited at J8.30-35), that Irving's repeated assertions, set out at J8.29, that the gas chambers were a propaganda lie invented by the British was not supported by the evidence (J13.99).


Camp commandant Höss's daily cypher reports to Berlin: G140-G145

65. See J7.103, J7.130, J8.21 (whole) and J13.87-89, which show that a principal reason for the judge's rejection of Irving's argument in this area (ignored in these paragraphs of the Grounds) was that the Jews who were gassed on arrival at Auschwitz (the vast majority) were never registered by the camp authorities and so, being unidentified and uncounted, could not be expected to appear in any cypher messages (even if the strict rule of secrecy as to the gassings had not anyway prevented it). By contrast, deaths by illness, shooting and hanging would be the lot of inmates, who were registered. Therefore, the reasons why the deaths by gassing were neither recorded nor, in consequence, communicated by cypher were indeed, as the judge said, 'obvious'.

66. G145 is a non sequitur, based on a misrepresentation of the judge's findings (see the paragraphs in the judgment noted in 65 above).


Gray J's observations: G147-149

67. These paragraphs are inconsequential, because the judge's observations have been shorn of their context: see paras 52-54 and 60 above (the judge's attribution of the incineration document to Müller instead of Bischoff was a slip of the pen, corrected in court on 11 April 2000).


Morgue 1 at Crematorium II: G150-156

68. G128 and G154 attribute to van Pelt a concession he did not make: see J7.92, J7.120, J13.83. Van Pelt's evidence was that the fragmentary remains of the roof do not allow firm conclusions to be drawn.

69. If Irving had thought the holes in the roof, or their absence, important, he would surely have gone to the trouble of obtaining evidence about this question. But he did not do so. He himself has never been to Auschwitz, he called no witnesses who had, and the anonymous snapshots he produced in court were wholly inconclusive. Thus, as the judge found, Irving's thesis as to the holes in the roof, unsupported by any affirmative evidence, could not stand in the face of the overwhelming cumulative effect of the evidence adduced by the Defendants (see J13.83, not J13.84, and J13.91). It follows that there is nothing in the least 'astonishing' about the judge's finding which is quoted in G155.

70 In any event, these Grounds entirely ignore the fact that although Irving had been denying the existence of the gas chambers at Auschwitz since 1988, largely on the basis of the Leuchter Report, he did not raise the question of the holes in the roof until late 1998 (J7.120, J13.81-82).


The cyanide stains: G157-162

71. G157 has already been dealt with at 19 above. Moreover, Irving made no attempt at trial to challenge van Pelt's reliance on the chemical analyses of others (see below). G158-162 are selective and misleading. They omit to state:

(1) that the concentration of hydrogencyanide required to kill humans is approximately 22 times lower than that required to kill lice: J13.79

(2) that in 1945, the forensic laboratory in Cracow carried out an analysis of, firstly, zinc covers removed from the buildings at Birkenau identified as gas chambers and, secondly, 25.5kg of human hair recovered from the camp. Both were found to contain traces of cyanide: J7.22.

(3) that in 1990, using sophisticated analytical techniques, Professor Markiewicz, Director of the Forensic Institute at Cracow, analysed samples taken from the various buildings identified as gas chambers and found traces of cyanide compounds, in varying amounts, in all of them: J7.73-74 and

(4) that Roth's analysis of Leuchter's samples also showed traces of cyanide compounds in the samples taken by Leuchter from the buildings identified as gas chambers - although, as was to be expected (see (1) above), in significantly smaller amounts than those taken from the delousing facilities: J7.82.

Those findings, ignored in the Grounds, provide powerful corroborative evidence of the use of the relevant buildings as homicidal gas chambers.


Coke consumption in the crematoria: G163-167

72. These paragraphs suffer from a single fatal flaw: they omit to state the reason why van Pelt felt able to conclude, and the judge to accept, that the quantity of coke per corpse required at Auschwitz was no more than 3.5kg. The incinerators were operated continuously, and several corpses were burnt together at the same time in multiple ovens, so that the incinerators were to a large extent self-fuelling (J7.125, J13.90). Save for his challenge to the authenticity of the Bischoff letter (as to which see 63 above), Irving did not seriously dispute van Pelt's reasoning or the evidential basis for it.

73. It follows that the argument based on a comparison between Dresden and Auschwitz which is advanced in G166 and G167 is false: Auschwitz had enormous, multiple-corpse, continuous-incineration crematoria; Dresden did not.


Extremist associations: G189-190 (with G35-G41)

74. The meaning which the Defendants had to justify in order to succeed on this issue is set out at J2.15(iv), which, despite G36-G40, is a defamatory meaning: any ordinary, right-thinking member of society would think worse of a man who had allied himself with 'extremist and anti-semitic groups and individuals' (the more so if, as he must be assumed to have done, such a person had read the whole of the relevant context, expressed here by meanings (i) to (iii): see Charleston v News Group Newspapers Ltd [1995] 2 AC 65, 70 per Lord Bridge of Harwich.)

75. G35 is not understood. The Defendants had from the outset sought to justify Irving's extremist views and associations (J2.12(ii)) and in November 1999 served a revised statement of case to which Irving raised no objection (J4.3) and which made perfectly clear what they were setting out to prove on this part of the case. In the result, the Defendants succeeded in proving the truth of the first part of the meaning set out at J2.15(iv), but not the second (which they made no attempt to do): J13.112-115. In any event, the evidence of Irving's right-wing extremist associations and activities was directly relevant to proof of his motives for falsifying history: J13.160-163.

76. The first sentence of G189 is a travesty of the evidence. Irving never suggested that his close, long-term associations with, and frequent appearances and speeches at meetings and rallies organised by, extremist neo-Nazi, anti-semitic and racist groups and individuals had anything to do with historical research: nor, on the evidence, would such a claim have been credible if it had been made: J10.4-31; J13.109-115.

77. G190 may be strictly correct ('emblems' or 'insignia' might have been more accurate), but it is inconsequential. What matters is that the rally in Halle, which Irving addressed from an open-air scaffold, was, on the evidence of the video-recording, quite obviously a neo-Nazi event, to which Irving had been invited by his neo-Nazi friend Ursula Worch (see J10.12, J10.30, J13.113, where, ignoring the references to 'uniforms', note the references to Nazi salutes and slogans, such as 'Sieg Heil', which Irving does not dispute).


Racism and anti-semitism: G191

78. It is agreed that these matters went only to motive: J9.1, J9.2, J13.160-163. In the light of the judge's devastating overall findings on justification, the Defendants do not respond to the tendentious comments in G191, save to observe that Irving's anti-semitism and racism were proved beyond doubt: J9.1-21, J13.100-108, J13.160-163.


The order made on 5 May 2000

79. On 5 May 2000, Gray J ordered Irving to pay £150,000 by 16 June 2000, on account of the First Defendant's costs. The judge had regard, in making that order, to the fact that Irving intended to apply for permission to appeal (he granted the First Defendant permission to apply for a further payment on account of costs in the event that permission to appeal was refused). Although the judge refused to order a stay, Irving has paid nothing. There is no good reason for Irving's failure to pay: Gray J noted in his judgment of 5 May 2000 (page 12) the absence of any evidence as to Irving's means (including the availability of funds from third parties). Although the application for permission to appeal asserts financial hardship, Irving has provided no evidence in support. There is no good reason why the Court of Appeal should grant a stay of the order.



Richard Rampton QC (for both Defendants)
Heather Rogers (for the First Defendant)
Anthony Julius (for the Second Defendant)
22nd September 2000
(Second version: 3rd October 2000)

Endnotes: continued

5 See J5.199-201 (introduction); J5.202-207 (Defendants' case); J5.208-214 (Irving's response); J13.42-44 (findings).

6 See J5.187 (introduction); J5.188-190 (Defendants' case); J5.191-193 (Irving's response); J13.39-40 (findings).

7 See J5.194 (introduction); J5.195-6 (Defendants' case); J5.197-8 (Irving's response); J13.41 (findings).

8 See J5.215-7 (introduction); J5.218-220 (Defendants' case); J 5.221 (Irving's response); J13.45 (findings).

9 See J5.222-224 (introduction); J5.225-228 (Defendants' case); J 5.229-230 (Irving's response); J13.46 (findings).

10 See J5.235 (introduction); J5.236-238 (Defendants' case); J5.239 (Irving's response); J13.48 (findings).

11 See:

(1) Reichskristallnacht J5.37-39 (introduction); J5.40-64 (Defendants' case); J5.65-72 (Irving's response); J13.14-18 (findings).

(2) The aftermath of Reichskristallnacht: J5.73 (introduction); J5.74-83 (Defendants' case); J5.84-89 (Irving's response); J13.19-20 (findings).

12 See J5.17-19 (introduction); J5.20-25 (Defendants' case); J5.26-28 (Irving's response); J13.12 (findings).

13 See J5.29-30(introduction); J5.31-34 (Defendants' case); J5.35-36 (Irving's response); J13.13 (findings).

14See J11.1-11.55 (the parties' respective cases) and J13.116-127 (judge's findings).

15 See J5.240 (introduction); J5.241-242 (Defendants' case); J5.243-244 (Irving's response) and J13.49 (findings). 

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