Real History in the British Court of Appeal

Posted Tuesday, June 26, 2001

Tuesday, June 26, 2001 (London)

Day 4 of the Lipstadt appeal

JUDGES enter at 10:30 a.m., and by 12:45 p.m. it is all over, as they retire to reach a judgment over the next few days or weeks -- at any rate before the end of term in late July, says my counsel Adrian Davies. Richard Rampton, Lipstadt's QC, dealt with Auschwitz, the holes controversy, and the Schlegelberger document, but did not make many telling points in our view.

Rampton makes heavy going of the "holes" controversy. He says that Prof. Van Pelt has been to Auschwitz many times, and that Crematorium II and Morgue 1 are in such a state of ruin that nothing can be found. The presence of the holes, he says, is attested to by the "eye witnesses" Tauber, Höss, Aumeier, Kula, and Broad. There are also drawings by Olère of the wire mesh columns going up to the holes in the roof and drawings by one Fakin. So "there are a lot of documents and eye witness evidence," even though the holes cannot now be seen. He then very wrongly adds that had we put in the Germar Rudolf affidavit in evidence, they would have submitted an immense Van Pelt report in rebuttal, to which is appended the evidence of two experts who have "found the holes."

I hiss to Adrian Davies that he must object to this illegal procedure, but Adrian does not move; afterwards he says the Court will pay no heed to any documents not formally put in evidence to them. May be. Pelt's two experts turn out of course to be the notorious Dr Keren and Dr Green (both with computer mathematics degrees, hardly the kind of experts this case needs).

Coming to the Schlegelberger Document, Rampton wheezes that this cannot be read in isolation. He fills in rather desperately the entire historical background to the document, beginning virtually with Adam & Eve and proceeding via the Goebbels diary entry to his breakfast this morning. He even brings in the "Reinhard camps," stating "they were as Mr Irving conceded at the trial mass extermination camps, using carbon monoxide instead of cyanide pellets." It is not debatable, he says, that Hitler did not know and authorize what Himmler was doing at that time. He even argues all over again that the document is dated July 17, 1941 (a misreading by Prof. Evans of the St.S. in front of Staatssekretär Freisler's name as "17.7.!" Of the document, Rampton says there is no direct evidence that Schlegelberger wrote it, it is undated, has no heading or signature, and is devoid of any internal evidence.

It is truly remarkable, the double standards that they apply to a key document like this, compared with the Holocaust evidence they rely so heavily on! Rampton then quotes rather desperately from two speeches I made in August 1988 (Toronto) and 1983 (Los Angeles) in which I referred to the document. "No reputable historian," he thunders, "would characterise it that way." Mr Irving was, he said, clutching at every straw to exonerate Hitler. Finally, Rampton argues that the document is not referring to Jews as a whole but only to the Mischlinge (the half- and quarter-Jews, whom it does not explicitly mention).

After all this, the presiding Judge, Lord Justice Pill -- who bears a startling resemblance to Lord Denning, though greater wisdom -- interrupts Rampton to point to a key passage in Mr Justice Gray's judgment. He purrs: "You have attempted (!) a comprehensive demolition, but Gray says 'I do not regard Irving's arguments as being without merit.'"

But then, it is pointed out, Gray (right) went on to say that Mr. Irving considers in Hitler's War that this document was "incontrovertible evidence." (When Adrian Davies speaks, later in the morning, he knocks that for six: he points out that his client Mr Irving has conducted a digital word search of the entire trial transcripts, and that phrase is not used once by Mr. Irving or anybody else about the Schlegelberger document. Wow!)

Rampton reads out a passage in which I have called it "highly significant."

Pill admonishes him, "In ordinary English, 'highly significant' is not the same as 'incontrovertible evidence.'" With Rampton growing more frantic, while I light whole festivals of candles in my heart, Rampton scours the documents and comes up with my calling the document in other statements, speeches etc., "a most compelling document," and "proof of Hitler's innocence." He summarizes: I have imbued it with a significance which it does not have, and I have ignored the historical context.

"I'll be quite frank," he huffs. "We never regarded the Schlegelberger document issues as being significant by comparison with Mr Irving's other falsifications. The Schlegelberger issues was not the most telling." Thus, with his tail between his legs, he abandons that particular battlefield and we have clearly won. But he still whinges, "to pick one brick out of a wall, relatively insignificant, makes no impression on the wall as a whole. Because he is profoundly antisemitic, Mr Irving is at pains to exonerate Hitler from what the Nazis did to the Jews. Indeed, from 1988 onwards Mr Irving denies that anything much did happen to the Jews."

This is of course monstrous, but the judges will see through that distortion of the evidence by Rampton. They have my books in front of them.

They make rather better progress with the March 27, 1942 Goebbels entry, which I have quoted much more fully in GOEBBELS. MASTERMIND OF THE THIRD REICH than in HITLER'S WAR. "I don't have to say it is incontrovertible evidence that Adolf Hitler knew," says Rampton, using that same phrase. "My case is that Mr Irving did not do what a reputable historian should have done, that is to allow readers to make up their own mind. It is a historiographical falsification of the first water, to suppress the middle passage" -- i.e. as I have in Hitler's War.

Lord Justice Buxton interrupts after a while to make good points on the law, and to ask why Gray was looking at the circumstantial evidence on the entry, and to pose the question: "Could any honest historian have written that?" From Buxton's demeanour, it is apparent that he and Evans are of the same camp. He will be the, uh, odd one out in the woodpile when they come to consider their verdict, as Pill and Mantell are evidently not ill-disposed towards me and my writings.

Rampton obliges: "Mr Irving specializes in the history of World War II. If any historian closes his eyes to that evidence in support of his attempt to mislead the reader ... he compounds his offence as an historian. It would have been legitimate for Irving to say, 'none of these events happened,' so 'I was under no obligation to heed them.' But he did not. He did not look at the historical context."

AT 11:25 a.m. Adrian Davies follows him, and makes effective points again on the "holes", pointing out that while Rampton has spoke with "great drama about the convergence of evidence on the gas chambers at Auschwitz," "if all the evidence is weak then the convergence thereof does not matter." On Day 10 at page 37, Mr Justice Gray last year asked Van Pelt was other evidence there is than the holes.

The photographic evidence, it turns out, is hard to interpret. "If there was a subject which called for a properly qualified expert," declares Davies, it is the interpretation of aerial photos. But Van Pelt is a jack of all trades, allows himself to expound to the court on cremation technology, toxicology, the appearance of victims after an epidemics, and much else. From Day 10 at page 14, says Davies, it is evident that Pelt cannot even date the photos he is relying on with any accuracy or certainty. The date he applies is pure speculation on his part, and to his own satisfaction. The shadows of the "chimneys" cannot be shadows, as they are being cast in different directions.

At 13.73 of his judgment, Gray properly summarizes the weakness of all this evidence. The drawings, he says, "yield little clear evidence." They can be explained by fumigation chambers. "Mr Justice Gray reviews all the evidence," observes Davies, "and comes to the conclusion that none of it comes to very much. Your Lordships cannot but find that Irving was entertaining honest doubts on the evidence." "Taken together, it shows extraordinarily little evidence." As for the eye witnesses, we have Höss believing that 2.5 million were murdered, Tauber even says 4 million, but the real figure is one million or less dying at Auschwitz.

Pill asks if I accept those figures, and there are moments of uncertainty while we check the transcripts.

At 12:08 Davies moves on to the Schlegelberger document; Gray has said my arguments on this were "not without merit," while the defendants too "are well founded." Buxton growls across the courtroom, that it was the defendants' case that Mr Irving treated Schlegelberger beyond the acceptable, and that that was what he called an "dishonest historical mistake." Lord Justice Pill says that Mr. Irving has clearly given "enormous weight to the document," but he finds that this "is not perverse." Quite. In Hitler's War I call it merely "highly significant." A few minutes later Pill LJ remarks that in his view Mr Justice Gray has criticized Mr Irving for it "in terms which are not supported by the evidence."

Adrian Davies then moves on to the Goebbels diary, remarking "we argued for two hours last Friday" about this. Lord Justice Mantell bestirs himself, and roars at him: "Was it only two hours, Mr. Davies?" to general laughter. Pill LJ remarks, after further argument, rather delphically, the fact that there is disagreement among the judges does not mean that they are at cross purposes.

Goebbels diaries microfiches, researched by Mr Irving in their original boxes in the Moscow archives (above); a typical microfiche (below)

WE are at the end of our appeal. Adrian Davies deals briefly and effectively with the "Section 5" items (items in Lipstadt's book which Mr Justice Gray agreed were libellous and not justified, but not libellous enough to overturn his other adverse findings). He urges that Lipstadt should be made to pay heavy damages for the allegation that I agreed to share a platform with Hamas, Hizbollah terrorist leaders, that I stole the glass plates of the Goebbels diaries from the Moscow archives, and especially the allegation that I applauded "internment" by Hitler and the Nazis (in quotation marks; the innuendo being " liquidation") of the Jews, as well merited by them. Nothing I have written justifies such a slur.

Buxton now asks very properly, "Was it pleaded in that way?" -- i.e. by me. I murmur to attorney Peter Fraser, " He has spotted that." But Adrian Davies argues that (and Gatley agrees) there is no need in law to plead a true innuendo, only a false innuendo. Rampton, an acknowledged expert on defamation law, is on his feet at once disagreeing, but we must leave it there. Buxton grumbles that this is the first that the court has heard of this allegation, namely the innuendo pleaded; Pill gently reminds him that Adrian Davies included it in his skeleton argument last year, many months ago. "Mr Irving drew the pleadings himself," Davies adds. "It is utterly apparent to anyone who reads these words what the innuendo is."

At 12:35 p.m. it is over. The judges go into a huddle on the bench, and then announce that they will hand down their judgment in due course.

Afterwards we all walk through the sweltering streets to what Adrian Davies says is "a nearby Italian restaurant," which turns out to be up north of Holborn! . . . A useful working lunch as we plan the further steps to take against . . . and . . .. In the latter case . . . suggests a private prosecution for perjury. He is even more of a rottweiler than I am, when injustice is being done.