DJC Irving - v -
Penguin Books Ltd and
Deborah Lipstadt |  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. Lipstadt served a
defence.
This is Mr Irving's Reply. | Hyperlinks
to Professor Lipstadt's Defence are
distinguished by an asterisk* |
| 1996.--
I.--Nº.1113In the High Court
of Justice QUEEN'S
BENCH DIVISION Between DAVID JOHN CAWDELL
IRVING Plaintiff -- and -- PENGUIN BOOKS
LIMITED First Defendants DEBORAH E.
LIPSTADTSecond Defendant [...]
Reply to Defence of Second
Defendant
1. Save insofar as it consists of
admissions or as is expressly admitted below the
Plaintiff joins issue with these Defendants on
their Defence. 2. Further or in the alternative
it is denied that the said words were fair
comment or that the facts relied on are
true. 3. In publishing the words set out
in para. 8 of the Statement of Claim the First
and Second Defendants were actuated by express
malice. The Plaintiff will also rely against the
First Defendant upon the malice of the Second
Defendant as hereinafter set out. PARTICULARS AS TO
MALICE The said Work to the whole of
which the Plaintiff will refer was malicious in
tone form and content in its references to the
Plaintiff. Further or in the alternative the
First Defendants already published in the
jurisdiction of this Honourable Court a work
entitled Fascism for Beginners in which
appear two caricatures by one Litza Jansz who
describes herself as an unrepentant socialist,
the first of which caricatures depicts the
Plaintiff (at page 165) wearing eyeglasses in
the shape of Nazi swastikas and the second (at
page 166) depicts the Plaintiff as the Nazi
dictator Adolf Hitler. As the Plaintiff is aware the
Second Defendant has on repeated occasions
vilified him in articles and in a campaign of
lectures delivered at locations around the
world, including Atlanta, Georgia; Australia;
and New Zealand, while denying him any chance of
defending his name by refusing inter alia to
appear on lecture platforms or on television
programmes if the Plaintiff was also invited to
attend to defend himself. Despite the premises and despite
the Plaintiff's historical research materials
having been made available for general study in
the Bundesarchiv
Koblenz (German Federal Archives) and in the
Institute of Contemporary History in Munich,
which fact is well known, and although the
Plaintiff is well known for providing every
assistance to and answering the queries of his
colleagues, regardless of their attitude to his
works, the First and/or Second Defendants
recklessly and without caring whether the facts
in the Work were true or false and for the
purposes of personal pecuniary gain published
the same. |  Further
or in the alternative the Defendants made no
reference to the Plaintiff's well-known
biography HITLER'S
WAR either as published in 1977 or in
the amended text published in 1991 to which the
Plaintiff will refer at the trial of this
action, nor any reference to any of the
Plaintiff's other works, which passages
contained detailed accounts of the Nazi
extermination of the Jews which show that he is
not a 'Holocaust denier' as falsely averred in
para. 12 of the Defence. The Plaintiff notes
that in GÖRING. A
BIOGRAPHY, at pages 346-9 he referred to
the cover-up of what was really happening, and
he notes that the Index to the said book has the
entry, 'Jews, mass extermination of, 343-9, 469,
487, 489, 499, 502.'
The 1991 edition of HITLER'S
WAR has inter alia the following
references to Hitler
and the Jews: role in Final Solution,
17-21; analysis of his antisemitism, 126-17;
threats to Jews, 150-1; Berlin deportations,
407; deportations to east, 425-6; concentration
camps, 466, 754; demands restraint, 536;
extermination programmes, 426, 427, 463-7, 814;
Himmler's call for extermination, 590; massacres
in Russia, 44, 809. Even the well
known Rommel biography by the Plaintiff,
THE TRAIL OF  THE
FOX, has an above-average number of
references to the Jews: Rommel ignoring
'Hitler's order to execute captured members of
the Jewish brigade,' at page 5, with the
text of the said Führer Order at page 177;
and other references at pages 25, 32, 42, 329
(Rommel learns of the 'massacres of Jews and
others in the east'), and 346. PREAMBLE* The Plaintiff is reputable and is an
historian. The allegation*
that he is neither is denied. The term historian
is not reserved for those with academic
qualifications, but is earned as much by acclaim
or accolade as by academic degree. His books
have been published by the world's most
reputable publishers since 1963, and still are,
most if not all of whom have acclaimed him as an
historian. Those publishers include, but are not
limited to, Messrs. Penguin Press / Allen Lane;
and Viking-Penguin Inc., New York, both
evidently companies related to, if not identical
with, the First Defendants. Even in their
abovementioned publication Fascism for
Beginners the First Defendants refer to 'the
British historian David Irving' as being
'prominent among the academics' to whose views
it takes exception. His work is acclaimed by
other historians of impeccable qualifications
including the British official historians.
Professor Sir Frank H Hinsley,
in his multi-volume British Intelligence in
the Second World War: Its Influence on Strategy
and Operations (HMSO, Cambridge, 1979-84)
cites the Plaintiff's works as primary sources.
At the trial of this action the Plaintiff will
introduce scores of newspaper articles
by British and international experts which treat
both him and his writings with distinction. Even
the Board
of Deputies of British Jews, the most
reputable representative body of British Jewry
since 1750, wrote in a secret intelligence
report on Mr Irving in 1991: 'The book
HITLER'S WAR however was
far more than a simple denial of Hitler's role.
It was thoroughly researched and employed a
variety of themes. . . It also confirmed
Irving's reputation as one of the world's most
thorough researchers and an exciting and
readable historian.' REPLY
TO PARTICULARS*
[FOLLOWING PARA. NUMBERING USED IN THE
DEFENCE] 6. (i) It is denied that the Plaintiff
has denied the Holocaust; it is denied that
the Plaintiff has denied that gas chambers
were used by the Nazis as the principal means
of carrying out that extermination; they may
have used them on occasion on an experimental
scale, which fact he does not deny.(ii) It is denied that the Plaintiff holds
extremist views. He has on occasion taken
issue with both Faurisson
and Zündel and with their views, and
they have taken issue with him. | (iii) It is denied that the
Plaintiff is driven by an obsession with
Hitler.
He has been criticised for marginalising
Hitler in his recent biography
of Dr Goebbels. He has written books in which
Hitler does not figure at all. He has spent
twenty years researching a wartime biography
of Mr Churchill. It is denied that the
Plaintiff distorts, manipulates, and
falsifies history either in order to put
Hitler in a more favourable light, or at all. (iv)
It is denied that without permission the
Plaintiff permanently removed certain
microfiches of Goebbels' diaries from the
Moscow archives; the temporary removal of
some microfiches was effected with the
understanding and/or express permission of
the archival authorities, and the microfiches
were on each and every occasion properly
cared for and without exception returned
intact and undamaged to the archives, as
staff members of The Sunday Times and
others involved in the operation will
confirm. It is denied that the Plaintiff lied
and/or exaggerated the position with regard
to the unpublished diaries on microfiches of
Goebbels contained in the Moscow archives and
used by him in the Goebbels book, or at all,
as his correspondence with The Sunday
Times and published references in his
Goebbels biography will show.
(v) It is denied that the Plaintiff is
discredited as an historian and user of
source material, and that there was an
increased risk that he would for his own
purposes distort, and manipulate the contents
of the said microfiches in pursuance of his
said obsession, or at all. (1) It is denied that these
alleged quotations
from speeches* by the Plaintiff are either
authentic, complete, properly transcribed, or
presented in their complete context. (i) This alleged quotation*
is not admitted for the reasons as above set
out. The alleged components of the paragraph
seem to bear no relation to each other.(ii) This alleged quotation*
is not admitted for the reasons as above set
out. The alleged paragraph has been
maliciously bowdlerised by the reporter and
the various arguments offered have been
condensed beyond all recognition. (iii) This alleged quotation*
is not admitted for the reasons as above set
out. The 'Holocaust industry' is a quotation
from a rebuff
delivered by the then Chief Rabbi Sir
Immanuel Jacobovits in a lecture in
Jerusalem. The Germans have paid 80 billions
deutschmarks (about £28 billion) in
restitution for the persecution of the Jews.
U.S.taxpayers have also paid substantially in
support of the state of Israel. (iv) -- (vi) These alleged quotations*
are not admitted for the reasons as above set
out.
|  (2)(i) The Plaintiff has
at no time denied*
that the Nazis established concentration
camps throughout their territories. In
GÖRING, A
BIOGRAPHY, he wrote in detail of the
establishment of these camps. In
THE MARE'S NEST he
reported on the use of concentration camp
slave labour for V-weapons production. In
HITLER'S WAR and
GOEBBELS. MASTERMIND OF THE
THIRD REICH he reproduced an
unpublished photograph of a trainload of Jews
arriving at Riga bound for concentration
camp.(ii) The Plaintiff has at no time denied
that the murder of the Jews began in about
June 1941 when the Germans invaded the Soviet
Union, or that hundreds of thousands of Jews
were shot to death.  In
HITLER'S WAR at pages
270-1 (first edition, 1977) and at pages
380-1 (revised edition, 1991) he reported the
Hitler/Frank/Rosenberg meetings on killing
the Jews in June 1941. In
GOEBBELS. MASTERMIND OF THE
THIRD REICH he reported in detail the
mass shootings on the eastern front as set
out above. In his public lectures all over
Europe and Australia and North America he
described these shootings in such
excruciating detail that there were audience
protests, French revisionist writer Robert
Faurisson labelled him a traitor who had
fallen for fake documents, and neo-Nazis
labelled him a Trojan Horse, in for example
the extreme right-wing Swiss journal
Eidgenoss dated April 28, 1990
('Trojanischer Revisionismus des Herrn
Irving').
(iii) The Plaintiff is not
aware of any authentic wartime archival
evidence for the allegations raised in this
paragraph*
by the Defendants. In the case of Auschwitz-Birkenau
the Plaintiff is troubled by the refusal
of the authorities to call for site
examinations, forensic tests and other
investigations, the more so since documents
in the National Archives indicate that equal
tonnages of Zyklon-B pesticide granules were
delivered to Auschwitz and Oranienburg camps,
at which latter camp nobody has ever
suggested that gas chambers existed, and to
camps in Norway, and since documents have now
been found in the Auschwitz files held in
former Soviet archives indicating that
Auschwitz prisoners were actually released
to the outside world again upon completion of
their sentence which seems incompatible with
the character of a top-secret mass
extermination centre. (iv) Chelmno. The Plaintiff is not aware
of any authentic wartime archival evidence
for the allegations raised in this paragraph
by the Defendants, other than the sources
used by him in referring to the alleged
liquidation of 152,000 Jews at Chelmno on
December 8, 1941 in HITLER'S
WAR, 1991 edition, at page 426.
|  (v)
Auschwitz-Birkenau. The Plaintiff is not
aware of any authentic wartime archival
evidence for the allegations raised in this
paragraph by the Defendants. Notwithstanding
that the Defendants assert that it had four
operating gas chambers in use, Adolf
Eichmann,
writing privately in 1955-6
about his inspection visits to Auschwitz, was
never shown them (although he was shown an
open-air pit with cadavers burning in it).Auschwitz commandant Rudolf Höss
reported
daily to his superiors in Berlin in top
secret SS cipher on prisoner statistics. From
the spring of 1942 to February 1943 these
daily signals were read by British
codebreakers. They reported the number of
inmates, the number of arrivals, and the
'departures by any means' -- primarily
deaths, according to British Intelligence;
the signals also distinguished between Jews,
Poles, other Europeans and Russians. 'The
returns from Auschwitz . . . mentioned
illness as the main cause of death, but
included references to shootings and
hangings. There were no references in the
decrypts to gassing' (Professor Sir Frank H
Hinsley et al., British Intelligence in
the Second World War: Its Influence on
Strategy and Operations, Cambridge,
1979-84, 3 vols., vol. ii, appendix,
page 673). The Defendants have not explained what
became of the one million cadavers which they
claim were produced by killing operations at
Auschwitz. (vi) Belzec, Sobibor and Treblinka. The
Plaintiff is not aware of any authentic
wartime archival evidence for the allegations
raised in this paragraph by the Defendants.
Aktion (Operation) Reinhardt was named after
Staatssekretär Fritz Reinhardt,
the civil servant in the Reich finance
ministry in charge of exploiting the assets
of deceased and murdered Jews and other
concentration camp victims. It is denied that
Aktion Reinhardt was itself an extermination
operation -- or that it was named after the
assassinated Reinhard Heydrich. It is denied that diesel engines can be
used for killing operations. These engines
exhaust non-lethal carbon dioxide (CO2), and
only minute quantities of toxic carbon
monoxide (CO). These howlers typify the
flawed historical research into 'the
Holocaust' even now, fifty years after the
tragedy. The alleged murder statistics raise
the same questions about body-disposal as
voiced in 2 (v) above.
| (3)*(i) A certificate
(Auskunft) issued by the Public
Prosecutor General at the Federal Court in
Berlin, Germany, as recently as December 20,
1994, records that there is no criminal
record in the Central Criminal File in Berlin
against the name of the Plaintiff.(ii) It is denied that these alleged
quotations from the public lecture delivered
by the Plaintiff in Munich on April 21, 1990
are either authentic, complete, properly
transcribed, or presented in their complete
context. The Plaintiff admits that he
delivered a one-hour lecture, to the whole of
which speech he will refer at the hearing of
this action. It is admitted that in separate
parts of that lecture he uttered the
following sentences or phrases:-- (a) Meanwhile, we now know, and I
need mention this here only by way of
footnote, that there were never any gas
chambers at Auschwitz.(b) Meanwhile, we believe that, just as
the gas chamber which the Americans built
here at Dachau in the first days after the
war was a fake, the gas chamber structures
which you can now see as a tourist at
Auschwitz were erected by the authorities
in Poland after World War Two. (c) For the German taxpayers have had
to pay around sixteen billion deutschmarks
as a punishment for Auschwitz. (d) For a fake. All of the above remarks are true. (iii) In violation of Germany's own
constitution, and of the Plaintiff's rights
to freedom of opinion and speech as
prescribed in the United Nations Charter of
Human Rights to which Germany, the United
Kingdom and most civilised nations are
signatory, on July 11, 1991 the Munich
magistrate's court fined
the Plaintiff the sum of 7,000 deutschmarks
in absentia for uttering the above
statements, holding that he had committed
offences under sections 185, 189, 194
subsections 1, 2, 52 of the criminal code. No
such offences are known to the British penal
code, let alone under the laws of the United
States, and it is vexatious, prejudicial, and
frivolous of the Defendants to seek to rely
on them. (iv) The Plaintiff's appeal was heard by
the District Court in Munich on May
5, 1992. It was a political trial. Judge
Thomas Stelzner, aged 30, allowed a violent
demonstration inside the court building.
 Photographs
of the demonstrators manhandling the
Plaintiff were distributed
around the world. The court denied all
applications by defence counsel, including
their request for leave to call as defence
witnesses Dr Franciszek Piper, Polish
director of the Auschwitz state archives, and
other experts who agreed that the gas chamber
shown there to tourists was of post-war
origin. (The Polish authorities have now
admitted
that the structure was built in 1948, three
years after the war ended). Every defence
document was also disallowed by the court.
The court ruled that the gas chambers were
offenkundig -- a matter of public
record of which the courts had to take
judicial notice and to which they allowed no
contrary debate. Protesting at the court's
obstructionism, the Plaintiff's two eminent
German defence counsel walked out of the
courtroom in disgust; their action was
subsequently upheld by the country's Law
Society. | Speaking in German, the
Plaintiff told the judge, according
to The Daily Telegraph: 'We both have
our duties. My duty as an historian is to
establish the truth. Your duty is also to
establish the truth -- but you have a problem
in Germany.' By this, he meant the political
principle laid down by the ministry of
justice that all facts relating to the
Holocaust are to be regarded as
offenkundig -- inviolate, and not open
to argument by defence counsel.In his closing speech the Plaintiff also
addressed these words to the judge and woman
prosecutor: 'I am nearly at the end of my
career as an historian. Quite simply, I am
running out of words. But you both, judge and
prosecutor, are still young: you are on the
threshold of your careers, and it is clear to
me that you have no alternative but to stick
to the Federal German version of the
truth.' The widely criticised political precedent
of declaring Offenkundigkeit (matter
of public record) was finally and expressly
overruled by the German judge hearing the
identical charges against Erhard Kemper in
Münster on December 4, 1996; the judge
ordered Kemper's acquittal on identical
charges, and payment of his costs from the
public purse. Had such a precedent existed in 1992, the
Plaintiff submits, it is unlikely that a
properly consituted court in Munich could
have convicted him. Citing his obstinacy, the
Munich court increased the fine on him to ten
thousand marks.
 Mr
Irving (left) with his defence counsel Herrmann
and Schaller(4)*
Subject to the reservations as set out above,
para. 3 (iii), as to admissibility, it is
admitted that on January 13, 1993 (not on
January 14, 1994 as falsely averred by the First
Defendants) the 25th Criminal Chamber of the
Regional Court of Munich upheld the conviction
on the appeal of the Plaintiff, and increased
the fine to thirty thousand deutschmarks, or
about £12,000 at present day exchange
rates. The emotional language in which the judgment
was couched, to the whole of which the Plaintiff
will refer, makes plain that this was a
political judgement. | (5)*
The Plaintiff is not affiliated to the Institute
for Historical Review ('IHR') in Los Angeles. He
denies that it is ultra-right wing,
pseudo-academic, or attractive to neo-Nazis,
anti-Semites and racists. The members of its
Board hold established academic qualifications.
The Plaintiff has on occasion taken issue with
the IHR, arguing for example that it should not
accept articles for publication under
noms-de-plume, and that it should widen its
horizons to other conflicts and historical
debates. Its lecturers have included an American
Pulitzer-prize winning historian, a former
official of the Central Intelligence Agency, a
Japanese general; future lecturers are to
include James Bacques, the leftwing liberal
Canadian writer, and John Sack, a Jewish
investigative author. The Plaintiff has lectured
to IHR audiences about five times over fourteen
years: on Pearl
Harbor; on the Adolf Eichmann Papers
and the Final Solution (having obtained these
papers in Buenos Aires, he donated them to the
German government); and on the Goebbels
Diaries and Kristallnacht.(i) In September
1983 the Plaintiff lectured to the Vth
IHR conference. The admissibility of the rest
of this paragraph is denied.(ii) In February 1989 the Plaintiff
lectured to the IXth IHR conference. The
admissibility of the rest of this paragraph
is denied, apart from the purported quotation
from a speech, to the whole of the text of
which the Plaintiff will refer at the hearing
of this action. (iii) In October 1990 the Plaintiff
lectured to the Xth IHR conference. The
admissibility of the rest of this paragraph
is denied. (iv)* In
lecturing to the Xth IHR conference in
October 1990 the Plaintiff made remarks of
which those quoted appear to be flawed
extracts (the word correspondence at the foot
of page 9 should read correspondent; and the
word tests on page 11 should read taste; and
the word flat on page 11 should read flag;
and the word placard on page 11 should read
plaque). The Plaintiff will refer to the
whole text of this lecture, including those
passages omitted by the Defendants, at the
hearing of this action. The admissibility of
the closing
paragraph (The First Defendants . . .
following below) is denied. (v) In October
1992 the Plaintiff lectured to the XIth
IHR conference. The admissibility of the rest
of this paragraph is denied. (6)*
It is admitted that: Mr Ernst Zündel, a
legal resident of Canada, was charged in 1983
and convicted in 1985 of spreading "false news"
under the little-used and archaic section 177 of
the Canadian criminal code (a section written in
1887, based on a 12th century English law); in
January 1987 the Ontario Court of Appeal allowed
his appeal. At a new trial, he was reconvicted
and sentenced to nine months. He appealed
unsuccessfully to the Ontario Court of Appeal.
He then appealed to the Supreme Court of Canada.
On August 27, 1992 the Canadian Supreme Court
allowed his renewed appeal, holding that this
section of the criminal code violated Canada's
Charter of Rights and Freedoms, section 2(b)
thereof protecting the rights of minorities to
express even unpopular views. Despite calls in
August 1992, in March 1993, in 1995 and again on
March 14, 1996 for Mr Zündel's further
prosecution, the AttorneyGeneral's Department of
Ontario refused to do so and announced on March
15, 1996 that it had also intervened and quashed
charges filed against Mr Zündel by a
private Canadian citizen. Although his opinions
remain unpopular, Mr Zündel has remained
free of criminal convictions in Canada to this
day. The admissibility and relevance of the rest
of this paragraph is denied. (7) The Plaintiff was accepted
by the District Court in Toronto as an expert
witness to give evidence on World War Two
history. He testified
under oath from April 22 to 26, 1988. The
Plaintiff will refer to the verbatim record of
his sworn expert testimony in the Zündel
action, and to the newspaper
coverage of the same, at the trial of this
action. The admissibility of the concluding
sentence in square brackets is denied. | (8)*
It is denied that Mr Frederick A Leuchter
had no expertise as stated. When defence counsel
were seeking an expert witness on gas-chamber
construction, they approached the governors of
U.S. penitentiaries where such devices were
operated for execution purposes; upon their
recommendation of the said Mr Leuchter, a
professional consultant who had routinely and
for a fee advised these penitentiaries on
electric-chair and gas-chamber execution
procedures and safety precautions, the defence
counsel hired him as an expert trial witness.
The Plaintiff submits that whether or not Mr
Leuchter was licensed as an engineer in
Massachusetts is irrelevant; he was an expert,
and was accepted as such by the Toronto court.
The court did not however admit into evidence
his affidavit on the forensic tests which he had
commissioned on material samples which he took
from the Auschwitz site, ruling that it would
take judicial notice of the holocaust. The
events in June 1991 are irrelevant to this
action; they were in the submission of the
Plaintiff part of the merciless campaign
conducted against Mr Leuchter in retribution for
his witness testimony, a campaign which would
have attracted sanctions as a contempt of court
or as an attempt to pervert the course of
justice if conducted within the jurisdiction of
this Honourable Court.The Defendants do not mention that the expert
portion of Leuchter's investigation, namely the
quantitative and qualitative chemical analysis
of the samples taken, was delegated to Professor
Roth, professor of chemistry at Cornell
university in the United States, whose forensic
expertise is unchallenged. (9)*
It is admitted that the Plaintiff published (on
June 23, 1989) under his Focal Point imprint the
British Commonwealth edition of Mr Leuchter's
affidavit. It was an important historical
document. In the foreword
the Plaintiff voiced his own measured concerns
about what he saw as methodological flaws
(quoted at page 16 of the Defence: 'I myself
would, admittedly, have preferred to see more
rigorous methods used in identifying and
certifying the samples taken for analysis. . .')
It is the Plaintiff's view that the entire
global campaign to vilify him and to destroy his
livelihood, including but not limited to the
publication by the Defendants of the Work
complained of, is a campaign of retribution for
his witness evidence in 1988 and for his part in
publicising Mr Leuchter's affidavit in 1989. The Plaintiff will establish at the hearing
of this action that subsequent forensic tests
were carried out by Polish authorities on the
Auschwitz site, in an attempt to disprove the
Leuchter affidavit; but that in each case the
results, of which the Plaintiff has a copy, were
suppressed. The results broadly confirmed Mr
Leuchter's affidavit. (10)*
When eighty-eight (not ninety-two) British
Members of Parliament table an Early Day Motion,
this is their privilege -- in every sense of the
word: unlike the Plaintiff and the Defendants in
this action, they are operating beyond the reach
of the Defamation Act, and they can peddle what
lies they please. It is denied that such a
motion can be truthfully represented as the will
of the House of Commons, since it is neither
debated nor voted upon. These MPs signed their
Motion
three days before the affidavit was even
published; none of them had even seen it. (11)*
It is admitted that the Clarendon Club, that is
in effect the Plaintiff, invited Mr Leuchter to
lecture to a large public audience in Chelsea
Town Hall on November 15, 1991. Concerned about
his revelations, the Board of Deputies of
British Jews conducted a vigorous clandestine
campaign to prevent Mr Leuchter's entry to
Britain. He entered Britain legally and openly
at Dover, having his passport stamped by
Immigration officers as he did so. After
protests from unknown quarters, police
constables arrested Mr Leuchter on the stage in
the presence of the audience and ITV television
cameras, and deported him two days later to the
United States. The Plaintiff addressed the
meeting, introducing Mr Leuchter as their guest
speaker. The rest of the concluding sentence and
its admissibility are denied. | Return
to top 
| Index
to this Case
| Plaintiff's
Claim
| Defence
 |
|