Hitler's meeting with Admiral Horthy

90. 13.44 "Such an historian would ponder whether the language of the minutes can be said to be consistent with a desire on the part of the Nazis to secure the deportation of the Jews and nothing more."

91. Gray J overlooks the striking fact that there is no mention of killing the Jews in the internal Magyar records taken by the Hungarian ministers at this conference, accessible in Hungarian archives to-day. This was a point that Irving made most powerfully.

92. 113.44 "He would also have in mind the subsequent history of the Romanian and Hungarian Jews."

93. As a matter of historical methodology, it would be wrong to construe the minutes of an April 1943 meeting with the benefit of hindsight about what allegedly happened to Hungarian Jews in May/June 1944 under totally different circumstances, namely the German invasion of Hungary and the deposition of Horthy, who was himself imprisoned in a concentration camp.

94. 13.44: "Irving was constrained to accept that the pretext which he put forward for the meeting with Horthy (the Warsaw ghetto uprising which happened afterwards) was false, as was his explanation for the harsh attitude evinced by Hitler at the meeting (recent Allied bombing raids)."

95. The Warsaw ghetto was a seething cauldron for weeks before the uprising. Hitler himself referred to the bombing of civilians in his talk with Horthy, which Irving put to Gray J by translating the relevant passage after Evans had denied it. The transcript of the conference shows that Hitler told Admiral Horthy on 16 April 1943:-

"If one did not drive out the Jews now, then they would again just as then destroy the economy, the currency, and morale... Anyway, why should the Jews be handled with kid gloves?... They were responsible particularly for the bombing of the civilian population and the countless victims among women and children."

96. Later Horthy answered. "He had done, he said, everything one decently could against the Jews, but one couldn't very well murder them or bump them off somehow." The Führer replied that:-

"There was no need for that either. Hungary could accommodate the Jews in concentration camps just like Slovakia.... If there was talk of murdering the Jews, then he (the Führer) must point out that only one person murdered, namely the Jew who started wars, and who by his influence gave the wars their anti-civilian, anti-women and anti-children character. With regard for the Jews, there was always the possibility of having them work down the mines. But at all costs they must be cut off from any kind of influence on their host country." (Prof. Andreas Hillgruber, Staatsmänner und Diplomaten bei Hitler, vol. ii, pp. 239 to 245)

97. 13.44: "I was not persuaded that Irving had any satisfactory explanation for his transposition from 16 to 17 April [1943] of Hitler's comforting remark, made on 16 April, that there was no need for the murder or elimination of the Hungarian Jews." Given the actual content of the remark, the accidental misdating of the reference by one day makes no difference.

Himmler's note for a meeting with Hitler on 10 December 1942

98. Re: 13.40 "I therefore accept the contention of the Defendants that Irving's treatment of this minute is unjustifiably favourable to Hitler."

99. Irving included the whole note in his book, so readers could make up their own minds.

100. Re: 13.41: the same holds for this passage. The Defendants' experts made no attempt to include Irving's alternative and often more likely interpretation of the document in their own works, but they are not perverse.

The Liquidation of the Jews of Rome

101. As to the allegation at 5.220 that Irving suppressed the fact that the Jews of Rome were murdered, he wrote at page 575 of the first edition of Hitler's War:-

"Himmler also considered the eight thousand Jews a potential threat to public order; Ribbentrop brought to Hitler an urgent telegram from his consul in Rome reporting that the SS had orders from Berlin that 'the eight thousand Jews resident in Rome are to be liquidated.' Again Hitler took a marginally 'moderate' line. On the ninth Ribbentrop informed Rome that the Führer had directed that the eight thousand Jews were to be transported to Mauthausen concentration camp in Austria instead, where they were to be held as 'hostages.' It was, Ribbentrop defined, purely a matter for the SS. (The SS liquidated them anyway, regardless of Hitler's order.)"

Himmler's speeches of 6 October 1943 and 5 and 24 May 1944

102. At 13.46 Gray J finds that:-

"Two of the speeches provide powerful evidence that Hitler ordered that the extermination of the Jews should take place. Yet in the 1977 edition of Hitler's War Irving suggests that the existence of a Hitler order was an invention on the part of Himmler. It does not appear to me that the evidence supports that suggestion. I consider that Irving's deduction that the transcript of the speech of 5 May was either altered after Himmler delivered the speech or sanitised before it was shown to Hitler is fanciful. The absence of any mention of that speech in the 1991 edition of Hitler's War was in my judgment another culpable omission."

103. Irving dealt with these speeches at length in Hitler's War and (though he is said to be a Holocaust denier) drew the obvious conclusions from the fact that Himmler said that he had not felt it right to order the killing of the Jews without ordering the killing of their womenfolk and children too: he made no mention of Hitler as giving that order.

Ribbentrop's Evidence in his Nuremberg Prison Cell

104. At 13.48 Gray J finds that Irving "fails to quote his [Ribbentrop's] immediately following comment that he at least knew about it [the Holocaust]".

105. The contentious passage is an endnote to Hitler's War:-

"Writing on Hitler in his Nuremberg prison cell, Ribbentrop also exonerated him wholly. 'How things came to the destruction of the Jews, I just don't know. As to whether Himmler began it, or Hitler put up with it, I don't know. But that he ordered it I refuse to believe, because such an act would be wholly incompatible with the picture I always had of him'" (Bavarian State Archives, Rep, 502 AXA 131).

106. As the Defendants' experts and Gray J pointed out, Irving omitted the following words:-

"On the other hand, judging from his Last Will, one must suppose that he at least knew about it, if, in his fanaticism against the Jews, he didn't also order [it]."

107. These words are the merest speculation.

What Documents had Hitler actually read?

108. At 13.57, Gray J finds that:-

"The evidence which prompted Irving to make these concessions consisted in the regular reports made by the Einsatzgruppen to Berlin; the preparation by the RSHA in Berlin of Ereignismeldungen (event announcements)..."

109. There was no evidence before the Court that even one of these Ereignismeldungen was shown to Hitler.

"...and a report numbered 51 dated 29 December 1942 which recorded the "execution" of 363,112 Jews and which (as Irving accepted) was probably shown to Hitler."

110. Irving did not so accept, but on the contrary, demonstrated that there was no evidence whatever that it had been read by Hitler. Merely vorgelegt (submitted) was not good enough, as he demonstrated by reference to a document which had been vorgelegt twice, proving that it had not been read when merely vorgelegt once" . There was no "paper trail," no replies, action, comments, handwritten marginalia, etc.

Auschwitz

111. All parties treated Auschwitz as the most important issue of all. Irving did not argue at any length what happened in the other camps, treating Auschwitz as a test case, not least because Gray J was most insistent that he should deal with the evidence expeditiously; see, for example, day 20:-

"Gray J: Mr Irving, I am conscious we are still on page 152. We have about 600 pages to go. It is not a race, but we have to keep an eye on what matters and what does not."

112. See also at 4.12: "Both sides have agreed that I should confine myself to the issues which have been ventilated by one side or the other in cross-examination."

113. See further note 129 in Irving's closing speech, which records an exchange with Van Pelt:-

"Irving: So if I am to concentrate a large part of my investigation in this cross-examination on that one building and, in fact, on Leichenkeller 1, the one arm of the crematorium, this is not entirely unjustified if I am trying to establish that the factories of death did not exist as such?"

"Prof. van Pelt: No. I think that that the obvious building to challenge would be Krematorium II."

114. It is in the circumstances most unfair of Gray J to say at 13.63 that Irving was disingenuous in suggesting that his reason for not arguing what happened in the other camps was to save the Court's time. All parties effectively agreed that if Irving had established that Auschwitz was not a "factory of death", debate about the lesser camps would have been pointless and time wasting.

The orthodox historical consensus

115. Somewhere something has plainly gone seriously wrong in the treatment of Auschwitz by orthodox historians. Irving showed the Court the official German newsreel Welt im Film issued on 8 January 1948 at the height of post-war denazification. It records the Polish Communist Court's final judgment on Hoess, the camp commandant of Auschwitz and his staff at Krakow in December 1947.

116. The Polish Court, in whose district the camp is situated, which tried the case shortly after the events in question took place, and had no cause to love Germans in general or Nazis in particular, stated that "nearly 300,000" people of all nations had "died" at the camp. This figure, it should be noted, does not differentiate between deaths (1) from wholly natural causes, (2) accidents, (3) disease, (4) malnutrition, (5) Allied air raids (6) the consequences of mistreatment of inmates by the SS, and (7) deliberate killing of inmates by the SS.

117. As Gray J observes at 8.25 "that figure gradually increased to four million, which was the number mentioned until 1990 on the monument erected by the Communists in memory of the dead. The figure then came down again."

118. At 8.22 Gray J states:

"Research carried out more recently, notably by Raul Hilberg and by Dr. [Franciszek] Piper of the Auschwitz Museum, has concluded that the true figure for the number of deaths at Auschwitz is in the region of 1.1 million, of which the vast majority perished in the gas chambers. This figure has, according to the evidence of Van Pelt and Longerich, been endorsed by the majority of serious, professional historians concerned in this field."

119. Dr. Piper was responsible for the figure of four million on the Auschwitz memorial, now reduced by a factor of 75% even by him, so his reliability is not beyond question.

120. Longerich was clear under cross examination that the one million figure was from all causes, and he confirmed this even when challenged by Gray J. Under cross-examination on 28 February, 2000 (Day 26, pages 56 et seq.) Longerich stated that he believed that one million had died from all causes. He added that in his opinion, anybody who was transported to Auschwitz and "died there because of exhaustion, hunger and of other causes was murdered."

121. Asked by Irving: "You include in that figure [1 million] the numbers who died from typhus and the other epidemics?" the witness confirmed this.

122. Gray J then asked:-

"Mr. Irving's question was; are you actually including in your 1 million figure those who died as a result of forced labour?"

" Yes."

"And," pressed Irving, "the starvation, pestilence, plague, epidemics, all the other ancillary causes?"

" Yes."

123. Gray J only partially recognises the effect of these exchanges at 8.23. In that paragraph he appears to accept Longerich's absurd claim that the Nazis deliberate encouraged epidemics and plague in their camps as part of their genocide, as though epidemics are respecters of persons, calling a halt according to uniform and race.

The eye witnesses

124. Gray J poses the question at 6.80:-

"What is the evidence for mass extermination of Jews at those camps? The consequence of the absence of any overt documentary evidence of gas chambers at these camps, coupled with the lack of archeological evidence means that reliance has to be placed on eye witness and circumstantial evidence..."

125. Yet even the Defendants had some reservations about the testimony of the handful of eye witnesses. Irving for his part explains the evidence of the former camp officials as extracted under torture or given in a desperate attempt to ingratiate themselves with their captors by confessing in the terms expected of them. The six or so inmates who have come forward with their accounts are an infinitesimal percentage of the survivors, and Irving dismisses their evidence as invented, exaggerated, or the product of what is now called false memory syndrome. The question is not whether he is right in that view, but rather, whether he came to it honestly and reasonably.

126. By way of examples of the value (or lack of it) of the eye witness testimony, at 13.77 Gray J is impressed with Tauber, though (contrary to Gray J's slip of the pen at 7.110, when he wrongly attributes this tale to Olaere), it was Tauber who made the absurd claim that the SS manufactured sausages out of human flesh in the crematoria.

127. As to Gray J's observation at 7.40 that: "Van Pelt considered that Tauber's testimony is almost wholly corroborated by the German blueprints of the buildings," that is scarcely surprising, as it is said that Tauber was questioned by the Polish prosecutors on the basis of the blueprints which were before them and him. Sometimes he described things which existed only on the blueprints, and which were never actually installed. All this material was put to the Defendants' experts in cross-examination.

128. As to 7.31, Pery Broad, whom Gray J generously describes as "an officer in the Auschwitz Political Department" was in fact a Pole who was formerly a Gestapo agent operating at Auschwitz, and later became a paid agent of the British occupation government in Germany. He was thus a man of dubious antecedents and flexible allegiances, whose evidence is plainly open to question on these grounds. Perhaps unsurprisingly, he was not produced for cross-examination at any of the war crimes trials, e.g. at the Tesch trial his affidavit alone was produced. He is one of the witnesses to the critical "holes" in the roof of Krematorium II, which Van Pelt conceded did not exist; see para. 7.92.

129. At 13.49, Gray J praises "Vaillant-Couturier's vivid, detailed and credible evidence about the women's camp at Auschwitz". Marie-Claude Vaillant-Couturier was a demonstrably political woman. Much of this Communist agitator's past is still shrouded in mystery. In her essay Women in the French Resistance Rebecca G. Halbreich concedes: "It is not clear from any source what her exact role was in the Resistance."

130. The evidence of her heroism is her own uncorroborated testimony at Nuremberg: she was (she said) arrested by Pétain's French police on 9 February 1942, questioned by the Germans on 9 June 1942, and arrived with 230 other French women at Auschwitz on 27 January 1943; of these, 49 survived, the rest dying of disease (though her testimony is vague on this point); she herself caught typhus and was in quarantine from 15 July 1943 to May 1944, returned to the main camp for two months, then being transferred to the women's camp at Ravensbruck.

131. For her IMT testimony, see Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 28 January 1946 (Nuremberg, 1947), p. 219.

132. It seems likely that Judge Biddle wrote "this I doubt" of her testimony generally, for example:-

(i) her preposterous account of the SS flagellation machine, which requires Freudian rather than legal analysis; and

(ii) her lurid suggestion that Tauber (see above) had encouraged his SS dog to kill prisoners for fun.

133. It scarcely seems likely that Judge Biddle was referring to her account of women being selected for SS brothels. That part of her testimony was unquestionably true. Such brothels were a feature of most concentration camps.

The Physical Evidence of the Camps At Auschwitz and Birkenau

134. How unreliable this evidence is appears from what Pelt himself has written in his book Auschwitz: 1270 to the Present, Robert Jan van Pelt and Deborah Dwork, Yale University Press, London 1996, p. 364:-

"When Auschwitz was transformed into a museum after the war, the decision was taken to concentrate the history of the whole complex into one of its component parts. The infamous crematoria where the mass murders had taken place lay in ruins in Birkenau, two miles away. The committee felt that a crematorium was required at the end of the memorial journey, and Crematorium I was reconstructed to speak for the history of the incinerators at Birkenau.

"This program of usurpation was rather detailed. A chimney, the ultimate symbol of Birkenau, was re-created; four hatched openings in the roof, as if for pouring Zyklon B into the gas chamber below, were installed, and two of the three furnaces were rebuilt using original parts. There are no signs to explain these restitutions, they were not marked at the time, and the guides remain silent about it when they take visitors through this building that is presumed by the tourist to be the place where it happened."

The Documents:

1. The Bischoff document

135. Gray J says at 7.106 that:-

"Irving dismissed several of the allegedly incriminating documents as unauthentic if not downright forgeries."

136. Gray J is, however, wrong. Irving challenged the authenticity of only one document, the Bischoff document.

137. Gray J is also seriously in error when he says that the grounds for Irving's challenge to the authenticity of the Bischoff document rested:-

"on the inaccurate designation of the rank of the addressee of the letter, General Kammler, which omitted the distinctive symbol used by the Nazis for members of the SS."

138. This was not even a ground, let alone the ground, upon which Irving relied. The grounds were listed clearly in Irving's written submissions to Gray J of 21March, 2000 (submitted at the Court's request):-

"(i) Bischoff letter, 28 June, 1943, on crematorium capacity at Auschwitz.

The integrity of this document is challenged on the following grounds:-

(a) Letter register number ("31550/Je./Ne.-") lacks the year ("/43/")

(b) Letter register number has a secretary or typist working for the man who dictated the letter (Jenisch) whose initials ("/Ne.") are not found on any of the other 58,000 documents surviving in the Auschwitz Construction Office archives.

(c) The rank of Dr. Kammler is given wrongly: SS-BrigadeFuehrer und Generalmajor instead of: SS-BrigadeFuehrer und Generalmajor der Waffen SS. Such an error is not found on any other genuine document whatever.

(d) The reference number "31550" appears to have been typed in at a later date, possibly after somebody ascertained a suitable in sequence number to give to the fake document.

(e) The handling figures which this document gives for Crematorium II do not tally with the specifications provided by the manufacturers, Topf & Co. A letter cited by Jean-Claude Pressac from the Topf archives gives a top rate of 800 per day for Crematorium II and III.

(f) Furthermore, the document refers to some crematoria which were at that time shut down, and to others that were due to be taken out of commission. Crematorium II was in service from March 15 to 24 and July 18 to December 31, in 1943; Crematorium III from June 25 to December 31; Crematorium IV from March 22 to May 10. Crematorium II and IV were apparently 'down' at the date of the alleged document; and Crematorium I was taken right out of service soon after for conversion to an air raid shelter."

The Cavendish-Bentinck Memorandum

139. Cavendish-Bentinck (later Duke of Portland) was chairman of the Joint Intelligence Committee of the War Cabinet, and thus head of British Intelligence. He had automatic access to all Intelligence materials, including the highest grades such as Ultra intercepts and CSDIC interrogations. He stated in writing in August 1943 that the British had no evidence of the existence of gas chambers. The document dated 27 August, 1943, is authentic, signed in his handwriting, and preserved in British files (PRO file FO.371/15252). It reads:-

"As regards putting Poles to death in gas chambers, I do not believe that there is any evidence that this has been done. There have been many stories to this effect, and we have played them up in P.W.E. rumours without believing that they had any foundation. At any rate there is far less evidence than exists for the mass murder of Polish officers by the Russians at Katyn. [...] I think that we weaken our case against the Germans by publicly giving credence to atrocity stories for which we have no evidence. These mass executions in gas chambers remind me of the story of employment of human corpses during the last war for the manufacture of fat [...]."

Camp Commandant Hoess's Ciphers to Berlin

140. In Volume II of his book British Intelligence in the Second World War, Sir F. Hinsley notes that British Intelligence was decoding the secret messages from Hoess, Camp Commandant of Auschwitz, to Berlin, which included his daily returns, and goes on to say:-

"The returns from Auschwitz, the largest of the camps with 20,000 prisoners, mentioned illness as the main cause of death, but included references to shootings and hangings. There were no references in the decrypts to gassing."

141. Gray J deals with this striking omission by observing at 8.21 that:-

"Records were kept... of the number of deaths amongst those who were registered as inmates of the camp. But, for reasons which are perhaps obvious, none of those deaths is recorded as having been due to gassing."

142. That observation, it is submitted, invites three rejoinders. The first is that Hoess's reports to Berlin were in top secret cipher. No-one on the German side had the slightest inkling that we had broken it. It is accordingly anything but obvious why Hoess, who dispassionately recorded the statistics for inmates whom he had ordered should be hanged or shot, did not record any deaths by gassings.

143. The second is that Gray J appears to consider the very absence of evidence for a particular proposition as an "obvious" proof of its correctness.

144. The third is that at 13.27, Gray J observes:-

"I was unconvinced by the strenuous efforts made by Irving to refute the sinister interpretation placed by the Defendants on Hitler's pronouncements on the Jewish question from late 1941 onwards."

145. These were mostly public pronouncements, yet Gray J is suggesting that the whole genocide operation was top secret. Gray J's findings at 8.21 cannot stand with his findings at 13.27.

Sonderaktion (sing.), Sonderaktionen (pl.)

146. The Defendants invariably attribute a sinister meaning to this word. It is treated as an euphemism for killing, an approach to construction much favoured by the Defendants when a literal translation of documents in the German language did not assist them. It is, however, far from apparent that it should generally bear this sense. For example, a telex to Berlin from Bischoff of the Auschwitz camp administration dated 18th December 1942 refers to a Sonderaktion der Gestapo bei s‰mtlichen Zivilarbeitern, which means, if the translation of Sonderaktion advocated by the Defendants and adopted by Gray J is correct, that the Gestapo killed all the civilian workers in the camp. No-one has ever suggested that such a massacre took place.

Gray J's observations at 7.118, 13.73 and 13.74

147. At 7.118 Gray J observes that:-

"The Defendants accept that the physical evidence remaining at the site of Auschwitz provides little evidence to support the claim that gas chambers were operated there for genocidal purposes."

148. Irving adopts that observation, and all that Gray J says at 13.73 e.g.:-

"The contemporaneous documents, such as drawings, plans, correspondence with contractors and the like, yield little clear evidence of the existence of gas chambers designed to kill humans."

149. Para. 13.74, is also generally adopted, especially "the possibility exists that some of these witnesses invented some or even all of the experiences which they describe." Gray J is however wrong to attribute the Bischoff incineration document (see above) to Mueller; Gray J repeats this error at 13.76.

The Scientific Evidence

1. Morgue 1 at Crematorium II

150. The Defendants' case is that mass gassings were carried out at this site. The alleged modus operandi of the SS was to insert Zyklon B pellets through four holes in the roof to poison the unfortunates locked in the gas chamber below. Irving's principal objective in relation to the Auschwitz aspect of the trial was to discredit this theory, by showing that there never were any holes in the roof.

151. At 13.81 Gray J says:-

"as the trial progressed, the emphasis of Irving's case on Auschwitz appeared to shift from the absence of cyanide in the brick and plaster to the roof of Morgue 1 at Crematorium II."

152. This statement is totally wrong. On the very first day Irving insisted on showing the court a video of Van Pelt on the roof of Morgue I, and drew the Court's attention to Van Pelt's statement that beneath that slab the worst atrocities ever committed against man had been done by the Nazis. That this was the epicentre of atrocity, a factory of death, etc.

153. Re: 13.83: "It is unclear how much of the roof can be seen in the photograph on which Irving relies. The roof is in a bad state, so that it is hard to tell if there were holes in it."

154. The fact remains that Van Pelt in his own report says that the holes are not in that roof now, and postulates that they were filled in by the Nazis.

155. Re: 13.84: "The apparent absence of evidence of holes in the roof of morgue at Crematorium II falls far short of being a good reason for rejecting the cumulative effect of the evidence."

156. This is an astonishing finding. The roof is still there and has no holes in it, but because the cumulative convergent evidence presented by the Defendants' experts in London suggests that there are holes, the evidence of the concrete roof is ignored.

2. The Cyanide Stains

157. Van Pelt is a professor of cultural history and completely ignorant of chemistry, so was in no position to testify on this subject.

158. Roth did not give evidence at the trial. Roth had originally analysed Leuchter's samples, supporting Leuchter's conclusions. Later he said:-

"If I had known the samples came from Auschwitz I would have come to a different conclusion..."

159. The evidence of a man who will change his conclusions to suit the premises is of little value

160. When giving a summary at 7.115 of Roth's views (received at second hand, and not tested by cross-examination) Gray J does not mention that Irving produced to the Court colour photos of the fumigation chamber at Auschwitz, showing that the blue cyanide stains had permeated right through the brickwork.

161. Even if the concentration of cyanide required to kill human beings is less than the concentration required for delousing, Roth's suggestion that cyanide produces a surface reaction which will penetrate no further than one tenth of the breadth of a human hair appears to be irreconcilable with the evidence of the colour photos of the fumigation chamber.

162. It is, moreover, a matter of common knowledge, which can easily be proved by the production of real evidence if the Court of Appeal declines to take judicial notice of it, that plaster is a very rough, porous and coarse material. It defies common sense to accept that a gas such as hydrogen cyanide will not penetrate into such material deeper than a few fractions of a millimetre.

3. Coke consumption in the crematoria

163. An important part of Irving's thesis that the scale of the atrocities perpetrated at Auschwitz has been materially exaggerated is that it would have been quite impossible to cremate the alleged numbers of gas chamber victims with the supplies of coke delivered to Auschwitz-Birkenau. See e.g. his cross-examination (Transcript of day 9, pp. 149 et seq.) of Van Pelt, who, being neither an engineer nor a chemist, but a professor of cultural history with some knowledge of architecture, should not have been heard on this issue anyway.

164. Summarizing Van Pelt's evidence on this issue at 7.124, Gray J observes that:-

"basing himself on a contemporaneous calculation and assuming bodies were burned together at the rate contemplated in Bischoff's letter of 28 June 1943, he maintained that the quantity of coke required per corpse would have been no more than 3.5kg."

165. No crematorium, anywhere, ever has achieved a figure in the region of 3.5 kg of coke per corpse. The best figure achieved anywhere in Nazi Germany for mass cremations was 35 kg, at Gusen camp. But Van Pelt was (in part) extrapolating backwards from the Bischoff document, which is probably a forgery.

166. It is also enlightening to compare both Evans's comments on the Dresden death toll and their treatment by Gray J at 11.18 with Gray J's acceptance of Van Pelt's Auschwitz evidence:-

"How, asked Evans, would it have been possible to have removed 200,000 bodies within a month? Moreover the claim in TB47 that 68,650 were incinerated in the Altmarkt defies belief, according to Evans, since it would have taken weeks and many gallons of gasoline to burn so many corpses in the available space."

167. Every one of Evans's arguments about Dresden mirrors those marshalled by Irving to refute key documents and allegations about Auschwitz, Birkenau, and the gas chambers. Irving's arguments, which are the product of forty years' investigation, were not accepted by Gray J, but when deployed by Evans, who has come to them only recently, they were accepted without a murmur.

Reichskristallnacht

168. Re 5.38: It is obvious that the Kristallnacht excesses were committed by the Nazis not because Grynzspan was a young Pole, but because he was a Jew. He was undoubtedly crazed.

169. Re 5.39: No evidence at all was before the Court that the 20,000 were "severely mistreated." Many were brutally mishandled and unjustly imprisoned, but most were released almost at once.

170. Re: 5.49: Gray J appears to take no account of Irving's rebuttal in his written submission of 21 March 2000 of the Defendants' submission that the acts of arson which were to be halted were limited on Hitler's orders solely to German property and shops [Geschäfte].

171. At 3:45 a.m. that same night the following telegram was issued by the Gestapo Section II, signed "p.p. Bartz":

"The following orders of the chief of security police [Heydrich] are to be executed urgently and immediately:

(1) according to the latest orders in accord with the Political Leaders all kinds of arson are to hindered;

(2) all orders issued and yet to be issued in this affair are to be stamped secret,

(3) without exception every Gestapo head office and office is to submit two reports on the execution of the Aktionen and their effects, particularly about egregious episodes, to the Gestapo section II. The first report must be submitted by this morning November 10 at 5 a.m. at the latest, the second report by seven a.m. this morning at the latest to the Gestapo HQ.

(4) receipt of confirmation of this message is awaited urgently via the Blitz teleprinter Munich No. 47.767 [i.e. Heydrich's telex number]."

172. In other words Heydrich, who is said in paragraph 5.3 to be acting at all material times on Hitler's direct orders, is seen clearly ordering a halt to all acts of arson, not just acts against German property and shops.

173. As Gray J states at paragraph 5.53: "The contemporaneous documents created during the night of violence are likely to prove a far more reliable guide than the self-serving and untested accounts of Hitler's staff."

174. Yet Evans and his experts did not breath a word to the court about the existence of the 3.45 a.m. telegram, in breach of Evans's clear duty to the Court; see the third of Cresswell J's observations in The Ikarian Reefer [1993] 2 Lloyd's Rep. 68 at 81 to 82.

175. Re: 5.52: This description of Hitler's reaction is important. It is not borne out by the Goebbels diaries. It is however borne out by the testimony of Hitler's adjutants. The diary cannot be slavishly followed. It is the diary of a liar, a propagandist. The fact that it was evidently written up not one, but two or even three days later, after the Kristallnacht episode, calls for additional caution in relying on it for chronology and content. It was furthermore in Goebbels' interest to maintain that he had been acting at all material times on Hitler's orders, although Rosenberg (writing in 1938), Von Hassell (1938), Groscurth (1938) , Himmler (March 1939), Ribbentrop (1945), and Hitler's adjutants Wolff (1952), Brueckner (1945, 1947), Below (1947), Wiedemann (March 1939), all say that this was untrue.

176. Re: 5.53: Gray J refers to the fact that Hitler's adjutants were testifying years after the war, and thus recalling events long ago. His Adjutant Fritz Wiedemann wrote his recollections in February 1939 on a steamship bound for San Francisco, after he had been dismissed Hitler's personal staff (and was thus not likely to be biassed in Hitler's favour). Himmler, Heydrich, Groscurth and many others referred to Hitler's fury at Goebbels in contemporaneous documents, as most of the dates above indicate.

177. Re: 5.75 the phrase "next" is based on the German word nunmehr. Nunmehr is the element of "apprehension", as in "What now!?" not as in "Let's go home now." Evans, whose grasp of vernacular German was shown to be deficient in the course of his cross-examination, did not know this. Gray J failed to appreciate the point.

178. Re: 5.78 The Goebbels "stop order" was broadcast all morning, well before mid-day. Gray J's suggestion at paragraph 5.85 that Evans stated that the "only record of the content of the broadcast gives the time of transmission as the afternoon" is not supported by Evans's evidence.

Hitler's Trial in 1924

179. Re 5.18: Irving was writing a book on Hitler's War, not the so-called struggle period of the Nazi party before 1933. In a book on Hitler's War one does not expect a more than passing reference to an unimportant episode that occurred in 1923.

180. Re 5.22: Mr. Justice Gray makes no reference to Irving's position on this issue, as stated in Irving's written submission of 21 March, namely that, while Hitler was at that time an obscure agitator on his way to prison, "Hoffmann was a police sergeant, testifying on oath and therefore seemed credible to me."

181. Re: 5.24, "requisitioning of funds". In Irving's written submission of 21 March he pointed out that:-

"In writing books for the general reader and a wider public than is attained by e.g. the expert witnesses in this case, I agree that I used vocabulary like 'requisitioning' in the way that GIs would talk about 'liberating' wristwatches from Nazi prisoners of war. My readers will have got the point."

The Berlin Crime Statistics for 1932

182. Contrary to what is suggested at 5.32 Interpol did exist in 1932. According to the Encyclopaedia Britannica:-

"Interpol began in Europe, which is not surprising since many countries of Europe have common frontiers and a criminal can, for example, be in one of four other countries within an hour of having committed a crime in Belgium. After World War I there was a great increase in crime; one of the countries most affected was Austria, and the Viennese police president, Johann Schober, obtained his government's support in 1923 for calling together representatives of the criminal police of other countries. The representatives of 20 nations met to discuss the problems facing them, and the International Criminal Police commission was formed that year. Vienna was the home of its first headquarters, and Schober became its first president. From 1923 until 1938 the commission flourished."

183. Para. 5.35 is a grossly inaccurate rendition of Irving's evidence on this matter. Irving admitted no error in citing wrong sources. More importantly, Evans did not (paragraph 5.33, last sentence) state that the other two references which Irving cited did not bear out his claim; Evans stated that he had not been able to locate Kiaulehn and Wieglin, the sources whom Irving used. (Day 29, 2 March, 2000, commencing at page 96).

Dresden

184. This peripheral issue (it has nothing to do with Hitler's policy towards the Jews) was introduced by the Defendants in November 1999, at a time when the Claimant was struggling under the weight of preparing as a litigant in person for a heavy trial. It arises out of the first of Irving's books, which he began writing in 1960, and published as long ago as 1963, and which was not substantially revised until the 1996 edition. During the intervening thirty-three years, Irving had little control over the text, which was in the hands of sub-licensees. Some of the figures which Gray J cites in his chronologies are from jacket blurbs, over which the author had no control whatsoever.

185. In November 1999, the Defendants must have known that there was no possibility of Irving going back in any detail to his 1963 material in time for a trial fixed for 11 January 2000. Lipstadt later explained the Defendants' thinking in the Jerusalem Post of 6 June 2000:-

"There was always the possibility that Irving would drop out, and some of the pre-trial strategy was designed to keep pressure on him, in the hope that he would give up."

186. Irving is said to have falsified the death toll in Dresden. See e.g. at 13.124:-

"He [Irving] 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."

187. Irving had donated his records to the Dresden city archives in 1965. Microfilm copies were disclosed to the Defendants. Among evidence thus disclosed and produced to the Court were letters from Hans Voigt, a wartime Dresden city official in charge of maintaining death lists, who gave his best estimate of the death roll at 135,000, the figure used by Irving; and a letter from Dr Max Fünfack, stating that General Mehnert, the city commandant and Professor Fetscher, chief of the city's civil defence, had at that time given him death roll figures of around 140,000. Mr Irving also produced a book with a foreword by Dr Konrad Adenauer, Germany's post-war Chancellor, with this footnote: "The attack on the city on Dresden, which was filled with refugees on 13 February 1945 alone cost about 250,000 dead," and a report by US Air Force medical officers Desaga and Hurd, in the records of the US Strategic Bombing Survey, giving a similar figure. "The most badly damaged town, in their opinion, is Dresden with an estimated casualty list of 250,000." Prof. Evans was cross-examined on these two sources on Day 23, 21 February 2000, pages 197 et seq.

188. It is submitted that Irving fairly used the material available to him between 1960 and 1963 on this side issue.

Extremist Associations

189. It is inevitable that a researcher into the history of the Third Reich will meet and associate with many Nazis: they are bound to be amongst his sources. Irving's submissions on the law in this regard are to be found at para. [ ] above.

190. The video to which Gray J refers at 13.113, saying that: "Irving can be seen watching assorted groups, many of them in uniform, march towards the meeting place," shows nothing of the sort. All forms of political uniform are banned in Germany. None was worn.

Racism and Anti-Semitism

191. These much publicized allegations go to alleged motive only, and if it is found on appeal that Irving did not falsify, pervert etc. the historical record, the citation of regrettable observations made under gross provocation in the course of meetings under attack from violent opponents, let alone one nineteen word "racist" ditty amongst the twenty million or so words of his private diaries are of no materiality whatsoever to the case.

Defendants' Submissions in response to these Skeleton Grounds, Oct 2, 2000