Such were the results of my investigations into Irving’s way with historical documents, a task that took all of 1998 and much of 1999 to carry out. This was only part of a wider effort put into the preparation of the case by the defense solicitors, the experts, and their researchers. While the experts and their researchers got the reports ready, the solicitors were compiling dossiers containing copies of all the documents listed in the two sides’ Discovery and referred to in the experts’ reports. That meant, for example, that everything I referred to in the footnotes to my own report had to be copied and placed in the courtroom for consultation during the trial if necessary. A whole team of paralegal assistants was deployed on this mammoth task. The resulting mass of paper was neatly stored in several hundred red-backed lever-arched files, quaintly referred to in legal terminology as ‘bundles,’ as if they were still made of parchment and tied up with red tape.
Affidavits were drawn up for the various interim actions before the Master of the Queen’s Bench requiring Irving to disclose yet more documents from his vast private collection, and various assistants were engaged in reading through these, copying them, scouring Irving’s diaries and letters for any evidence of racism, antisemitism, or contacts with far-right extremists, viewing many hours of videotapes of his speeches, and listening to one audiocassette after another of Irving talking to audiences of like-minded people in obscure meeting-halls in various parts of the world. Deborah Lipstadt flew over frequently to keep an eye on how things were going, and cheered everybody on from the sidelines, but obviously could play no part in the compilation of the expert reports.
By the summer of 1999, the experts’ reports were complete, and in July and August they were handed in to the court and passed on to the Plaintiff. Taken together, the reports ran to over two thousand pages. Clearly, Irving had a lot of reading to do. By getting everything as far as possible out into the open beforehand, the rules governing pre-trial proceedings tried to ensure that there were no unnecessary delays in the trial itself. Still, when the public hearing actually began in Court 37 in the huge, rambling Victorian High Court building on London’s Strand on 11 January 2000, it was scheduled to last for a full three months, and many suspected it might go on for a good deal longer. How would Irving deal with the defense’s case? Was the High Court the right kind of place to settle the issues involved? Many had serious reservations, which increased among the reporters who crowded into the press gallery as the trial got under way. David Robson, one of the most perceptive observers of the trial, confessed himself all at sea. “The libel court is somewhere to fight battles,” he wrote, “score points and collect damages. But for seekers of light, understanding and historical truth, it is very often not the place to look.” David Cesarani argued that “evidence in history is not like evidence in court. . . . In a court of law, context and circumstance are the least important evidence; they may be deemed inadmissible, not real evidence. The court wants physical evidence, a fingerprint that no one can argue with, but in history context and circumstance matter a great deal.”1 A law court was “the worst possible place” to conduct “historical disputes about Auschwitz,” agreed Geoffrey Wheatcroft.2
Neal Ascherson also had doubts. All too often, the issues, he thought, got drowned in a mass of confusing detail, and history was reduced to a kind of “toxic sludge.” In a trial such as this, “fragments of history are snatched out of context, dried, treated and used as firelighters to scorch an adversary.” The fact was that “for establishing what really happened in history, an English libel court is the worst place in the world.” What went on had something to do with truth, to be sure; but it had far more to do with the personalities of those involved, their motives, and their ability to withstand the strain of cross-examination. The tale of the Holocaust was “neither entirely simple nor entirely known.” Ascherson seemed to think it unlikely that the trial would add very much to the tale or do very much to fill in the gaps.3
Daniel Jonah Goldhagen, Harvard-based author of a controversial book arguing that virtually all Germans were “Hitler’s willing executioners” because they were rabidly, murderously antisemitic and had been for many decades before the coming of the Third Reich, thought the trial absurd because the Holocaust was “an established historical fact.” “The ruling of a court,” he declared, “has no bearing on historical fact: the court is a place where legal issues are adjudicated according to the particular legal standards of a given country, not where historical issues are decided according to the different and well-established standards of historical scholarship.”4 Even one of the expert witnesses, Peter Longerich, found the experience of working with the court in matters of history somewhat alien, noting that the court demanded “a painfully exact presentation of evidence, beyond any reasonably provable doubt, going beyond the standards customary in the Humanities.”5
The philosopher A. C. Grayling reminded readers of The Guardian that the Irving case showed the importance of arguments about whether historians were engaged in creating present narratives of a past that was irretrievably lost, or in constructing an accurate picture of what happened by the discovery of verifiable facts.6 He cautiously refrained from coming down on either side, however. That was left to modish relativists like Anne Sebba, writing in the Times Higher Education Supplement shortly before the trial began. She asked rhetorically:
What chance is there that legitimate issues about interpretations of the Holocaust will be adequately aired in a court of law? The grave danger of this costly case is that grave issues that are being aired in the current spate of war crimes trials could be reduced to sound bites and personalities. . . . A court–even one without a jury where a learned judge has studied the papers as here–may be the right place to decide on issues of defamation, but it is surely an inappropriate setting to rule on the interpretation of history.7
Similarly, Werner Birkenmaier, writing in the Stuttgarter Zeitung, asked pointedly whether a judge was really capable of meting out justice to history:
Can he, may he establish as if by virtue of his office what is ‘correct’ in history, how it really was? In that case he could be able to achieve more than all the historians put together. Historical scholarship is the effort to approach what objectively happened, based on sources, documents and witnesses. The rest is interpretation and opinion, but also the sceptical knowledge of the fact that witnesses make false reports, and sources and documents can be overtaken or reinterpreted in the light of new research.
Birkenmaier thought that Irving exploited such uncertainties in order to cast doubt on the Holocaust. Like many other observers, he had serious doubts about the court’s ability to settle anything, let alone reach a defensible verdict on what was historical research and what was falsification of the documentary record.8
In fact, however, in many respects the High Court turned out to be a good place to settle the historical and methodological points at issue in the Irving case. There were, for a start, none of the usual constraints of time and space that limit what can be said or written in other arenas of debate. In a radio or television program, each side has at best only ten or fifteen minutes to make its points, at worst little more than a couple of sound-bites; in court, however, we could pursue every point, no matter how minor, for hours on end (often to the frustration of the attending journalists), until we had exhausted the subject or the judge was satisfied that everything had been said that was necessary and asked us to move on. In an academic seminar or conference, the speaker is never allowed to go on for more than an hour, and discussion seldom extends even to that amount of time. In the High Court, proceedings went on for the best part of three months. Academic controversies in journals, newspapers, and magazines are limited by the space available, and books are subject to severe restrictions on their length which are imposed by the economics of publishing even in quite arcanely academic subject areas. There were no such limits on the space the experts had to write their reports in the Irving trial: we simply wrote as much as we needed to fulfill the commissions we had been given, which in Robert Jan Van Pelt’s case was over six hundred pages and in mine over seven hundred.
The court proceedings turned almost entirely on Irving’s interpretation of original historical documents. The red lever-arch ‘bundles’ that now lined the bookshelves on three out of the four walls of the courtroom were filled mainly with photocopies of Irving’s works and the original, mostly German, mostly wartime documents that they used, or, as the defense claimed, misused to support their various controversial theses. We spent hours going over detailed matters of research such as the interpretation of particular sentences in the original sources, the translation of individual words, the reading of a series of letters in a handwritten manuscript. Journalists frequently found this extremely irritating.
Even Neal Ascherson, one of Britain’s most intelligent and perceptive journalists, with a keen eye for history and a good knowledge of the recent European past, expressed some impatience with the proceedings, complaining,
We spend hours on the timing of a scribbled Himmler phone-note about how a transport of Berlin Jews should be treated in Riga, on a bugged conversation between captured SS men in London about whether somebody said he had an order from Hitler to kill Latvian Jews, on the meanings of words such as Vernichtung (destruction) or Judentum (Jewry).9
The Irish reporter Rachel Donnelly did a reasonable job of reporting the issues, but even she showed some irritation with “circular arguments about the position of a full stop” in one particular document.10 As Simon Rocker observed in The Jewish Chronicle, “The finer points of German grammar, the position of a full-stop in a document . . . it is easy to see why the two sides considered the case too much for a jury.”11
This was, however, a trial about historical research at the most detailed and basic level, about the very creation of historical knowledge from the remains the past has left behind. Seldom does either a historical controversy or an academic debate touch on such fundamental issues of the historian’s business, or treat them with such close attention over such a long period of time. “For many of us squeezed into the court,” the reporter Cal McCrystal complained, “there are times when the sheer volume of information being exchanged seems almost a barrier to historical truth.” The information overload was “stupefying,” he thought. “Stacked in teak bookshelves around the walls are nearly 400 files of information. Teak tables groan beneath the weight of further boxes, books and laptops.”12 Like many journalists, he was simply unfamiliar with the enormous quantity of source material with which modern historians customarily work.
In historical debate it is often possible to evade your opponent’s question or to get away with irrelevant answers. But not in court. This was the first time that Irving had been put to the question in a court of law on these issues, and the procedure was far more rigorous than it had been in the occasional debates in which he had taken part on television or in the press. The court’s proceedings were surprisingly informal, and Mr. Justice Gray in general applied the rules in what seemed to me to be a fairly relaxed way. But the obligation on the witnesses, including Irving himself, to tell the truth, allowed merciless, relentless questioning, particularly by Richard Rampton, if the cross-examiner felt that the truth was being evaded, argued around, or denied. Every word spoken in court was taken down by stenographers, fed into the laptops that all the main protagonists had on the desk in front of them, and distributed in corrected, hard-copy form the same evening. There could be no dispute, therefore, about what anyone had said. Leading counsel frequently referred to the transcripts in the course of cross-examination. What was said on oath in the witness box was supposed to be true and therefore dealt with in a definitive manner. This rule, designed not least to save time that would otherwise be lost through repetition, led to an almost immediate intervention when a witness contradicted something he had said earlier, though in practice it did not prevent either repetition or contradiction from taking place. All of this was immensely helpful in moving the court toward a definite conclusion on the issues before it.
As it turned out, the rules of evidence in court were not so different from the rules of evidence observed by historians. In criminal cases a prosecution has to be proved beyond reasonable doubt. Here, in a civil trial, the issue hung on the balance of probabilities, much as it does in history. Irving requested that the standard of proof demanded of the defense be set high, since the allegations made against him were particularly serious, and the judge agreed. Yet in the end this did not seem to make a great deal of difference. Since the trial turned for the most part on how historians used historical evidence, the context and circumstances in which an original document had been written proved to be all-important. The same was true of the language in which the documents were couched. Whether or not the word Vernichtung meant physical annihilation could indeed often be judged only from the context–in 1939, for instance, it might mean something vaguer than it meant in 1943, as all the experts agreed, and Irving himself accepted as a general principle, even if he frequently disputed its application in practice. The standards of proof were in the end not much higher than those used by historical researchers in their own work.
Despite the lawyers’ wigs and gowns and the judge’s red sash, the proceedings were generally informal. The language used by the court was for the most part plain English. As Ralf Dahrendorf remarked ruefully: “In Continental Europe, the open drama might possibly have been sterilized by juridical terminology.”13 This was not so in the High Court, and while historical technicalities abounded, legal jargon was mercifully absent. The normal course of trials of this nature was followed, albeit with occasional interruptions and variations. The plaintiff and the defense presented their cases, and then the plaintiff was cross-examined. The defense called its witnesses, who were cross-examined in turn by the plaintiff. There were concluding pleas, and finally, after an interval, judgment was delivered.
Three features of the trial stood out as unusual. The first was the absence of a jury. Everyone agreed that the mass of documentation was too vast, the issues too intricate, for a jury to cope with. Even the judge found the minute examination of original source material “extremely difficult and taxing.” Irving, perhaps flattered by this argument, agreed. Although Irving had agreed to all this in advance, there were moments when he came to question his own wisdom in having done so.14 A jury might have proved susceptible to his bluster, his rhetoric, and his self-advertisement, or found itself as much at sea in the welter of historical argument and counterargument as the vast majority of the journalists did. The judge was immune to all of that. Or, jurors might have been numbed by the detail and concluded that the two parties were somehow on the same level and there was nothing to choose between them. Mr. Justice Gray’s extraordinary mastery of detail proved decisive in this, as in other respects. Yet of course the presence of a jury would have altered the nature of the proceedings profoundly. No doubt the defense would have put its case more simply. The defense witnesses would have spent weeks in the witness box presenting their testimony orally under the guidance of defense counsel, instead of just handing in written reports. And even the soft-spoken defense counsel Richard Rampton QC might have raised his voice and inserted a little drama into its tones, instead of speaking, as he seemed to, mainly for the sake of the transcript, which he knew the judge would study every night after the proceedings were over for the day. My guess was that had there been a jury, however, the defense would still have been able to put its case across convincingly, albeit in a rather different way.
Second, the role of the expert witnesses loomed unusually large in this trial. What we researched and wrote was also exceptionally independent from the Instructing Solicitors, who simply lacked the necessary expertise in historiography, the deciphering of handwritten German documents, and the detailed knowledge of the Second World War and the Nazi extermination of the Jews. The expert reports provided the basis for Richard Rampton’s lengthy cross-examination of the plaintiff; destroying the credibility of the witnesses and the points they made became the main object pursued by Irving when his turn came to cross-examine us. Almost every aspect of the assessment of Irving’s work reached in the final judgment derived ultimately from the expert reports and the way Irving had dealt with them in court. Despite the fact that the defense case was conducted in masterly fashion by one of Britain’s top defamation QCs, who seemed to know what was in the expert reports better than we did ourselves, the main role in drawing up the defense case was ultimately played by the historians.
The third unusual aspect of the trial was the fact that the plaintiff was representing himself. This lent the whole proceeding a directly personal quality often missing when most of the talking is done by lawyers. It was unclear whether Irving decided to represent himself because he could not afford the legal fees or whether he was so convinced that he knew more about the subjects under discussion than anyone else could ever do, that he simply did not trust a lawyer to put his case. He did not call any expert witnesses to testify on the substantive issues, only two historians to comment, favorably as he hoped, on his reputation among professional historians, and one Kevin Macdonald, a Californian “evolutionary psychologist,” to defend him against the charge of antisemitism by supporting his view that Jews had always stuck together throughout history in pursuit of their own interests. Interviewed on BBC Radio 4, Irving admitted being “self-confident to the point of arrogance.” His interviewer, the psychologist Oliver James, suggested that this derived from the fact that he was “actually very short of self-esteem,” and suffered “from feelings of inferiority” which made him “far more anxious about who you are and far more in need of kicking everyone and trying to make a big fuss and being the centre of attention than you realise.”15 These feelings were to emerge in curious ways during the trial.
Finally, Irving could probably not trust a barrister to extract the maximum publicity from the case in the way he wanted. The Economist pointed out that Irving, “an astute self-publicist,” was widely suspected by critics of “using his three-month stint in court to try to revive the flagging public interest in his work.”16 And on many occasions indeed, Irving seemed to be addressing more the press and the world outside than the judge and the court, indulging, for example, on one occasion in the sensational gambit of asking the judge to prevent him from extradition in the middle of the trial to Germany to face charges of Holocaust denial there, a ploy that duly reaped its reward in the Pavlovian response of the panting headline-writers in the next morning’s daily newspapers.17
As the trial got under way, it quickly became apparent that Irving was going to find it difficult to set the agenda. The bias of the English law of defamation brings its own perils for the unwary plaintiff. By placing the entire burden of proof on the defense, it allows them to turn the tables and devote the action to destroying the reputation of their accuser. Indeed, once the defense has admitted, as Lipstadt’s did without hesitation, that the words complained of mean what they say and are clearly defamatory, justifying them in detail and with chapter and verse is the only option left to them. A successful libel defense therefore has to concentrate, in effect, on massively defaming the person and character of the plaintiff, the only restriction being that the defamation undertaken in court has to be along the same lines as the defamation that gave rise to the case in the first place, and that it has, of course, to be true. The defense had to prove that Lipstadt’s accusations of Holocaust denial and historical falsification were justified in Irving’s case. Thus it was Irving, not Lipstadt, whose reputation was on the line. By the end of the third week of the trial, as Neal Ascherson observed, the defense had succeeded in turning the tables, “as if David Irving were the defendant and Deborah Lipstadt the plaintiff,”18 an observation shared by other commentators too.19 “In the relentless focus on Irving’s beliefs,” wrote Jenny Booth in The Scotsman, “it was easy to forget that it was actually Lipstadt’s book which was on trial. Increasingly it seemed that was Irving himself.”20
In the welter of argument and counterargument, many of the journalists who attended the trial found themselves more and more at sea, and it was perhaps not surprising that newspaper interest dropped off once the trial got into the meat of the allegations. Listening to it all, the writer Dan Jacobson found himself feeling “as if I were sitting in a kind of grim version of Wonderland . . . a region of illogicality and topsy-turvy-dom.”21 At times even the defense counsel Richard Rampton QC thought the same. When Irving spent some time trying to show that well-known British politicians and authors of the interwar period such as John Buchan had made antisemitic remarks, Rampton exclaimed:
My Lord, this is a kind of insanity. I feel as though I was in one of Lewis Carroll’s books. Mr. Irving brought this action in respect of words published by my clients. The only defence is that what is said is true, amongst them that Mr. Irving is an antisemite. What can it matter that there may have been some author from the distant past, the 39 Steps, who also, on some occasion, might have made a remark as an antisemite?22
The sense of unreality felt by reporters was heightened by the fact that while all the participants in the proceedings–the judge, the defense counsel, the plaintiff, and the witnesses–were supplied with copies of the documents under discussion at any given moment, they themselves, obviously enough, were not, so that for them, much of the discussion took place in a kind of vacuum, in which they could do no more than guess as to the nature of the text whose contents or status were being disputed. For the majority of British pressmen attending the trial, matters were made still worse by the fact that a large portion of these texts were in German, a language that they were unable to understand. The same applied as well to many of the spectators who crowded the public benches every day.
All of this gave uninformed, or inattentive, observers the impression that Irving was doing quite well as the trial went on. Jonathan Freedland reported perceptively on the fog of uncertainty that Irving tried to spread over the evidence for the Holocaust. After Irving had dismissed the memories of survivors as the product of delusion or conspiracy, all that remained were the documents:
This is where Irving is happiest, rolling around in swastika-embossed paper. He knows these documents so well, he knows their mannerisms. On this terrain, Irving can be frighteningly convincing. . . . The trouble with Irving is that he refuses to accept the basic rules of evidence. . . . It is history itself which is on trial here, the whole business of drawing conclusions from evidence. If Irving is able to dismiss the testimony of tens of thousands of witnesses, where does that leave history? If we can’t know this, how can we know that Napoleon fought at Waterloo or that Henry VIII had six wives? How can we know anything? . . . If we start to doubt corroborated facts, how can we prevent oursleves being swallowed up in doubt, unable to trust anything we see? It might all be a conspiracy, a legend, a hoax. This is the bizarre, never-never world inhabited by David Irving. Now the court has to decide: is this our world too?23
Irving of course was not doubting whether one could find the truth; on the contrary, he was bending the rules of evidence to impose the validity of what he claimed was the truth. But it took a lot of knowledge and a lot of expertise to recognize this.
As James Dalrymple observed of Irving’s performance in court:
Like a magician producing rabbits from a hat, he produces questions that are disturbing, puzzling, confusing, even bewildering. Remorselessly, he plants tiny seeds of doubt in the minds of even intelligent and reasonable people. . . . On and on it goes. Find some tiny inconsistencies, discover some flaws in eye-witness accounts, present logistical anomalies as Zionist lies–and soon the minds of those who were not even born during the Holocaust are filled with the possibilities that it could all be a lie.24
Nevertheless, despite all this fog of linguistic incomprehension and documentary obscurity, Jonathan Freedland of The Guardian found the proceedings “a daily performance of extraordinary theatre.”25 Simon Rocker of the Jewish Chronicle thought them “more like trench warfare, slugged out with documents, the full significance of which might emerge only days later, a ray of light through a thicket of paperwork. The horrible details of human depravity became pieces in a game of legal chess.”26 The strangeness of it all was heightened by the tense atmosphere created partly by Irving’s decision to represent himself, partly by the enormous public interest the case aroused. So many people wanted to get into the public gallery that the judge moved the trial to a larger court, Court 73, after the first couple of days, and even then there were perpetual queues outside the courtroom. Holocaust survivors, Jewish activists, academics, and right-wing extremists sat cheek-by-jowl on the public benches throughout the proceedings.
A history teacher from Royal Holloway College brought his students along to witness the spectacle. Holocaust historian Sir Martin Gilbert attended every day and took copious notes from his seat in the public gallery. Visiting American academics like Eric Johnson, author of Nazi Terror, dropped in for a day or two, coincidentally just as, unbeknown to him, Irving was handing extracts from his book around the courtroom. A large bearded and turbaned Sikh, connected with the anti-racist magazine Searchlight, sat within easy reach of Irving sympathizers identified by the magazine as activists in the far-right British National Party, who were sporting flat of St. George badges in their lapels. I noticed one young spectator wearing a death’s head signet ring.
According to one observer, one of them had an American paper on his lap, the headline “News of Phoney Survivors” facing up at his neighbor, an Auschwitz survivor who had rolled up his sleeve to display the number the SS had tattooed on his left arm. Behind Irving sat a well-dressed, heavily made-up, forty-something blonde who was known to Searchlight as the London contact for the Holocaust-denying Adelaide Institute in Australia. Often accompanying him to lunch, she set the tone for the small claque of his admirers to whom he would occasionally address his remarks, eliciting predictable chuckles when he made what he indicated to them was a joke or a winning point. Mostly they sat close behind Irving, although on one occasion, one of Irving’s supporters positioned himself behind me and my research assistants and almost fell out of his chair in the attempt to read the notes we would occasionally hand to each other on the yellow post-it stickers we used to pass forward to Richard Rampton with information on the rare occasions on which he missed something. Strangest of all was a man whom the Searchlight described as “the arch conspiracy theorist Alexander Baron, who put out on the press benches a note declaring: ‘Irving is a paid agent of political Zionism. This trial is staged. Don’t be deceived.’”27
Expectations on all sides were high. Irving’s supporters clearly thought this would be his opportunity to wipe the floor with the liberal Establishment and resurrect his flagging career as a writer and political activist. On the other side, Neal Ascherson, noting the camp survivors in the courtroom, observed:
Some of them hope this trial will be a sort of Last Judgment, the breaking of the Seventh Seal to reward the righteous and drown the wicked, and flood the Earth with truth too blinding to deny. . . . Idealists, like some of those vigilant old people on the public benches, dream that this trial will culminate in a mighty rite of transmission. It will lay out one last time the evidence about what was done in the Holocaust (to how many, by whom, in what manner and why). The young generations will lose the voice of the witnesses. But they will be armed instead with a judgment.
Whether the end result would actually deliver such a clear-cut result, he doubted.28
All of this not only created a tense atmosphere but also lent the proceedings a surreal aspect, as Philipp Blom observed in the Berliner Zeitung:
Amidst the courtly ceremoniousness of an English court, with its wigs, its gowns and its deliberate politeness, the debate here was about mass murder, about bizarre arithmetical tasks, that sounded as if they came from a textbook from the gates of Hell: if you have two gassing lorries with a capacity of sixty individuals and you have 172 days to kill 97,000 Jews, how many journeys must each lorry make each day?29
James Dalrymple of the Independent was another observer who clearly felt uneasy at the discrepancy between the style in which the court proceedings were held and the matters with which they dealt. “I felt,” he wrote, “like a man in some kind of Kafkaesque dream. What was going on here? Was this some kind of grotesque Monty Python episode? Everybody seemed to be in such good spirits. As if they were taking part in some kind of historical parlour game. Spot the gas chamber for 20 points.”30
Every lunchtime, after a morning of cross-examining Irving on the dispatching of trainloads of starving Jews in cattle trucks and the committing of mass murder in the gas chambers of Auschwitz, the defense team walked across the road to Richard Rampton’s chambers in the Middle Temple, sat down to a sandwich lunch, exchanged impressions of the morning’s play, swapped legal and academic gossip, and planned tactics for the afternoon. Often, even in court, one had to pinch oneself to realize the enormity of the events we were discussing. Much of the time, however, merely to keep oneself from becoming uncontrollably angry, it was necessary to erect some kind of emotional curtain between the court proceedings and the death camps, to distance oneself from the horrors of Auschwitz and Treblinka. On one level the trial was indeed played out as a kind of intellectual and forensic game, and given the fact that in the end the decisive issues as far as the court was concerned were intellectual and legal rather than moral or political ones, it was necessary that this should be so.
On another level, however, the more the trial went on, the more moral significance the case seemed to take on in the face of Irving’s seemingly limitless capacity for telling lies, distorting the truth, and insulting the memory of the dead. This too required its tactics of emotional self-preservation. Before going into the witness box to be cross-examined by Irving, I had two pieces of sound advice that constituted in fact the only kind of coaching I received from the defense. “Remember, Richard,” said Anthony Julius, “you’re on the stand for two and a half hours without a break, so don’t take too many sips of water from the glass they give you; it would be embarrassing to have to ask the judge for a pause while you go to the loo.” I followed this as closely as I could, although the dry atmosphere of the air-conditioned courtroom obliged me to have frequent recourse to the water-glass all the same, and on one or two occasions, it was touch and go.
The other piece of advice was from Robert Jan Van Pelt, who went into the box before me. “Don’t look Irving in the eye,” he said, “it’ll just make you angry.” On my first day of cross-examination I was foolish enough to forget this sage counsel, and it turned out to be just as Robert Jan had foretold: I became irritated by many of the things Irving was saying or implying, especially when he tried to tackle me on reports written by other expert witnesses whom the defense had chosen not to call–reports for which I was not responsible and did not have the expertise to discuss. This did not make a good impression on the court. Over the weekend, I had a rethink, and for the remaining five days of cross-examination I did not make eye-contact with Irving once. This was much better; as the disembodied questions, statements, innuendos, and insults volleyed in from my left, I was able to take them in an impersonal manner and answer them in relative calm, addressing my remarks either to the court in general, or to the judge. Later I noticed that Richard Rampton never looked Irving in the eye either. Confronting Irving in a personal manner would have made it more difficult to deal with the issues at hand in a dispassionate way. For all of us he became someone with whom the least contact was defiling.
Rampton’s decision to cross-examine Irving on the basis of a chronological run-through of the events to which the evidence referred made strategic sense, for in doing so he built up a narrative of Nazi antisemitism that was designed to trap Irving in the logic of historical events. Irving may have been aware of this; and Dan Jacobson observed: “Risking the anger of the bench mattered a good deal less to him than trying to disrupt the story which was being unfolded, and which not even the curious format of the trial could prevent from being unfolded.” Irving, he thought, was determined to prevent the emergence of a narrative of “consequence, of events having necessary connections, of one thing leading to another,” and constantly attempted to break it all down into isolated discussions of detail.31 But as Rampton’s remorseless questioning went on, I could not see any such subtle tactics in Irving’s responses. Irving seemed too concerned to duck and weave as Rampton probed and prodded, to think of anything apart from the topic of the moment.
After many days of being questioned by Rampton on the issues of falsification and manipulation of the sources, it was Irving’s turn to put the defense experts into the witness box and attempt to refute what they had written in their reports. Some observers found much to admire in the way he went about his task. “Mr. Irving’s performance was very impressive,” wrote Sir John Keegan, defense editor of the Daily Telegraph, after observing him conducting a cross-examination. “He is a large, strong, handsome man, excellently dressed, with the appearance of a leading QC. He performs well as a QC also, asking, in a firm but courteous voice, precise questions which demonstrate his detailed knowledge of an enormous body of material.”32
Not many people who were in court for more than the few hours that he was there found themselves sharing Sir John’s favorable impressions. Irving struck me as being impressive neither as a witness nor as a cross-examiner. A lumbering hulk of a man, he did not look well dressed to me; his suit did not seem to fit him properly, and his graying hair for the first few weeks was untidy and clearly needed cutting. Knowledgeable Central European commentators were generally unimpressed by Irving’s performance. Robert Treichler, writing for the Austrian magazine Profil, found Irving “was not an impressive thinker or rhetorician. In the trial, in which he is representing himself, he acts chaotically.”33 And Eva Menasse, writing in the Frankfurter Allgemeine Zeitung, found that “the biggest disappointment in this trial up to now has been the intelligence of David Irving, which was so famous before the case and which supposedly made him so dangerous.” He knew his way around the documents well enough, but “It is painful to have to hear how Irving tries to bend every detail, even the tiniest, every translation, every word in his direction. In doing so he is not in any way convincing, not for a second.”34
In his own published work, Irving often seemed obsessed with trivial detail, unable to see the wood for the trees. The same intellectual weakness now became apparent as he launched into his cross-examination. His technique was to go through my report page by page, indiscriminately picking up any errors that he thought he could identify, as if he were writing a lengthy book review rather than trying to argue a legal case. “It is,” he said hopefully, “a barrage of tiny points, It is death by a thousand cuts.”35 Inevitably, given the pressure of time with which the report had been researched and compiled, and the large amount of ground it had to cover, he did succeed in finding a few minor errors. Some mistakes identified by Irving turned out not to be mistakes at all. But whether he was right or wrong, most of his points were completely irrelevant to the central issue of falsification. The judge became increasingly irritated with these irrelevancies, and grew ever more insistent in directing Irving’s attention to the central issues in the report with which he had to grapple. On the third day of Irving’s cross-examination of me, the judge finally lost his patience, describing one question of Irving’s as “an absolutely futile point.” The danger to Irving of his failure to understand what he had to do was immediately made clear by defending counsel:
MR. JUSTICE GRAY: This cross-examination does not appear to me to be grasping the nettle of the criticisms against you. You keep finding tiny little points on which you hope, and sometimes succeed, in tripping up Professor Evans, but you are not grappling with what the criticisms are of your account. . . . You are taking tiny little points like whether a sentence has been left out of an account he gives as part of his testimony. That just does not really affect the issues that I have to decide at all.
MR. RAMPTON: I would have to say this, my Lord. It is as well perhaps I say it now. Unless Mr. Irving challenges Professor Evans on this and other topics, upon the foundation of his criticisms of Mr. Irving’s writings, which is not in every case but in most cases and in all important respects the way in which Mr. Irving has treated contemporary documents, then I am afraid I will take it that Mr. Irving has accepted the criticisms.
MR. JUSTICE GRAY: We will come back to that. That would, in the ordinary case, be a completely unarguable proposition for Mr. Rampton.36
Later, the judge remarked that while he was not in fact going to accept that Irving had conceded a point if he had not challenged it, he was going to take the fact that he had not disputed it into account when making up his mind about the issue in question.37 And indeed the final judgment repeatedly noted where Irving had not challenged criticisms made of him, as well as summarizing the arguments he put when he had.
A major problem in dealing with Irving as a cross-examiner lay in the fact that he would frequently build into his often lengthy and elaborate questions assumptions that themselves rested on his falsification of the evidence, and so had to be disputed before the question itself could be dealt with. This tactic, whether conscious or not, did not escape the attention of the judge. “No, Mr. Irving, that will not do, will it?” he exclaimed on one such occasion: “You cannot put a question which has as its premise a misstatement about the date when gas chambers began operating. . . . If you are going to ask that question, and it is a relevant question, you must premise it correctly.”38 Moreover, it was clearly inadvisable to trust Irving’s own account of the documents that he presented to me during cross-examination without checking them myself, so time and again, when he tried to initiate a discussion about the meaning or content of some particular source or text, it became necessary to hold up the proceedings by demanding to see a copy of the document to which he was referring. In many instances he was so badly prepared that he had neglected to supply the court with a copy, so that the discussion was aborted. As the judge remarked to Irving, “it is not terribly satisfactory to have cross-examination by assertion, if you follow me. . . . Sometimes I think it is going to be necessary to give chapter and verse for what you are asserting.”39
Irving clearly found this insistence immensely irritating. After he put yet another point to me without providing any documentary evidence for it, the following exchange took place:
PROF. EVANS: First of all, I would have to see the document to accept your account of what is in it or rather–
MR. IRVING: Do you always ask to see documents?
PROF. EVANS: Yes, of course I do, Mr. Irving, because I do not trust your account of what is in documents. Still less do I trust the account–
MR. IRVING: Do you know your own name without being shown a document?40
For all of Irving’s sarcasm, the advisability of insisting on seeing documentary evidence for everything he said quickly became obvious. Quoting from my report on one of many such occasions, for example, Irving put the following question:
MR. IRVING: On page 160 at line 4 of paragraph 36: “Irving casts doubt on almost all testimony at the Nuremberg War (Crimes Trials)”–is that an exaggeration, that I doubt almost all the testimony produced at Nuremberg?
PROF. EVANS: That is not what I say.
MR. IRVING: Well, you say that I say it does not fit my arguments; I say it was obtained by torture and threats?
PROF. EVANS: No, no I do not, Mr. Irving. I say: “Irving casts doubt on almost all testimony at the Nuremberg War Crimes Trials or during the prior interrogations if it does not fit his arguments, alleging it was obtained by torture and threats.” Those are my precise words.41
But it was not only necessary to remain alert to Irving’s distortion of my report; he even managed repeatedly to distort what I said in the witness box seconds after I had said it. Thus, for example, after I had quoted the passage in Hitler’s Testament, written in the Berlin bunker shortly before his suicide, in which he said that the Jews would have to atone for what he called their guilt at having caused the deaths of millions of Aryans by burning, bombing, and starvation, “even if by more humane means,” Irving almost immediately referred to the suggestion “that the Holocaust was humane, which is what you are proposing?” “I am not proposing it,” I protested, “it is Hitler who is proposing it.”42
Irving’s cross-examination technique bore little resemblance to the calm, forensic probing of an experienced QC like Richard Rampton. Every time I started to give an answer he did not like, he tried to cut it off. Frequently the judge, and occasionally defending counsel, stepped in to stop him. Often I continued anyway, so that at times all three of us, Irving, the judge, and myself, were speaking at the same time. At the end of one day’s proceedings, I leaned over to the stenographer and asked her whose words she recorded in such circumstances. “Whoever shouts the loudest,” was her reply. In practice, however, the tape-recording of each day’s proceedings made sure nothing got lost even when exchanges became extremely heated. Irving even interrupted when he was being told he should not interrupt:
MR. RAMPTON: I do believe that Mr. Irving is occasionally guilty of discourtesy. My Lord, I would not interrupt a witness like that in that aggressive–
MR. IRVING: I have to interrupt, Mr. Rampton, because otherwise–
MR. RAMPTON: I am speaking to his Lordship, Mr. Irving. Please remain quiet. I am making an objection to the way in which Mr. Irving is attempting to harass the witness.
MR. JUSTICE GRAY: The objection is entirely well founded.43
“Please, Mr. Irving,” the judge repeated a few minutes after this exchange. “There is no point in asking questions if you constantly interrupt the answers.”44 But Irving could not see this. He seemed entirely unaware of the impression he was making on the court.45
Irving dragged out the proceedings unnecessarily by repeating questions if he did not get the answers he wanted. On many occasions the judge had to intervene to tell him he had got the point and Irving could now move on.46 But most of the time, Irving was impervious to such advice. Sometimes this meant I had to repeat the same answer several times. This was exasperating. “I have to say, Mr. Irving,” I told him on one occasion, “one of the reasons why this is taking so long is that you are constantly asking the same questions again and again, and I have to give the same answers again and again.” Now it was Irving’s turn to be irritated. “I do not really wish to be lectured by the witness on how I conduct my cross-examination,” he barked. “Well,” interjected the judge, “take the lecture from me and please, please move on.”47
The central step that the defense had to make was to provide convincing evidence that Irving had not only made mistakes in his work but had actually deliberately done so in order to bolster his preconceived and politically motivated view of the past. As Irving correctly remarked in his opening speech, the defense had to show not just “that I misrepresented what happened, but that I knew what happened and that I perversely and deliberately, for whatever purpose, portrayed it differently from how I knew it to have happened.”48 Or, to be more precise, that he had deliberately falsified the evidence for what happened so that it indicated something different from what he knew it indicated. Irving tried to suggest in cross-examination that he would not have placed the documents he had discovered in the public domain had he been falsifying them. But, of course, most of the documents he misinterpreted and misrepresented were already in the public domain, in state archives, and in the long run it would not be possible to withhold the rest from other researchers. Irving got the point about the documents:
MR. IRVING: Do you say that I misinterpreted and distorted them deliberately? Is that your contention?
PROF. EVANS: Yes, that is my contention. You know there is a difference between, as it were, negligence, which is random in its effects, i.e. if you are simply a sloppy or bad historian, the mistakes you make will be all over the place. They will not actually support any particular point of view. . . . On the other hand, if all the mistakes are in the same direction in the support of a particular thesis, then I do not think that is mere negligence. I think that is a deliberate manipulation and deception.49
This was crucial. The defense’s case was, after all, as Richard Rampton said in his brief Opening Statement, that “Mr. Irving calls himself an historian. The truth is, however, that he is not an historian at all but a falsifier of history. To put it bluntly, he is a liar.”50 Irving’s line was of course that it was he who was telling the truth, he who was the bona fide historian. The purveyors of what he had called the ‘Holocaust myth’ were the ideologically motivated liars. “Although Irving relishes his status as a contrarian and historic mischief-maker,” wrote Gerald Posner perceptively in The Observer, “he desperately wants to be accepted as a serious historian.”51 Beginning his cross-examination of Christopher Browning, Irving suggested collegiality by remarking that “we are going to have a joint journey of discovery and exploration over the next day or two.”52 At the same time, he was never reluctant to heap insults upon the tribe of professional academic historians. Here, as in so many other respects, the contradiction in his own position was obvious. Yet on the face of it the issue was clear. Falsification or truth? Historian or liar? On 11 January 2000, battle was joined in the High Court.
How did Irving deal with the detailed evidence of manipulation of the historical record leveled at him in my report? He had several different approaches, depending on the subject. Not all of them were mutually compatible. Under cross-examination himself, for example, he had boasted that he had read the entire eight thousand pages of the microfilmed transcripts of Hitler’s trial for the beer-hall putsch in 1924. However, defending himself against the finding in my report that he had deliberately suppressed evidence in the transcript that the man whom he presented as a neutral witness on Hitler’s behalf was actually the head of the Nazi Party’s intelligence service, Irving now argued that he had not read the pages in the transcript where this was revealed, even though the witness’s entire testimony took up only five pages.53
Similar contradictions were to be found in Irving’s attempt to show that Hitler did not know about the pogrom of the Reichskristallnacht and put an immediate stop to it when he found out. Despite his statement elsewhere in the trial that he had a “gut instinct against eyewitnesses” and “always preferred to use concrete documents rather than statements of people,”54 Irving tried to persuade the court to prefer the postwar testimony of a number of Hitler’s adjutants who were with him at the time to the contemporary evidence of Goebbels’ diary and his speech at the Old Town Hall and other documents which made it clear that the ‘demonstrations’ had been authorized by Hitler.55 The adjutants had insisted that Hitler knew nothing about the events until the middle of the night and raged at Goebbels when he found out. This was far from convincing for a number of reasons:
PROF. EVANS: It is extraordinary, is it not, Mr. Irving? All these old, all these police officers and SS men have been with Hitler during the appalling violence against the Jews in 1938, many years afterwards when it has become clear that society and the world disapprove very strongly of these events, all tell each other: “Well, I did not know anything about it. I had not heard about it.”
( . . . )
MR. IRVING: Do you, therefore, accept, Professor, that I had three sources of what you would describe as being of variable quality, all converging on an episode in Hitler’s private quarters on the Night of Broken Glass in which Hitler, apparently, vented his anger upon receiving news of what was happening in Munich, at least?
PROF. EVANS: Yes, and I think they are all lying.
MR. IRVING: You think that all three are separately lying?
PROF. EVANS: Well, Mr. Irving, it is not beyond the bounds of possibility. You have already suggested in the course of this trial that many thousands of Holocaust survivors are all collectively lying, so it is not beyond the bounds of possibility that three people are lying, is it?56
But it was left to the judge to point out another reason why their evidence might not have been reliable. One of the testimonies was given in an interview of Nicolaus von Below carried out by Irving himself long after the war.
MR. IRVING: Is there any indication that I am asking leading questions?
MR. JUSTICE GRAY: The first one is a leading question, but let us move on.
MR. IRVING: My Lord, my interview technique is part of the criticism against me, that I have distorted history.
MR. JUSTICE GRAY: Yes, but you asked whether there were any leading questions and the first question is a leading question, Mr. Irving. Let us get to his answer.
PROF. EVANS: “You were with Hitler at his home when the news of the Reichskristallnacht arrived there in Munich and he was rather surprised by that. Can you depict that? Who else was there?” You suggest to the witness that he was surprised. What you should have asked was: “You were with Hitler in his home on the eve of Reichskristallnacht, can you say what happened?”–something neutral like that.57
Irving was unable to sustain his claim that such evidence had to be preferred to contemporary documents such as the Goebbels diary. Indeed, under cross-examination by Richard Rampton, Irving had been forced to concede that Hitler himself had been behind the two telexes sent out to German police units at 11:55 P.M. and 1:20 A.M. on the night of 9–10 November 1938 and that both these telexes were ordering the police not to interfere with the action against the Jews.58
He also had to drop the claim that Hitler had called Himmler into his bunker on 30 November 1941 and “required” him to stop the Jews being killed. The Jews in question, he agreed, were in fact only a single trainload from Berlin. And although he had said as much early in the trial, he now had to abandon his claim that Hitler had summoned Himmler.59 Irving was also forced to drop his initial suggestion that he had misread the singular Judentransport as the plural Judentransporte in the manuscript of Himmler’s phone log when confronted, first, with a photocopy of the original page, which showed quite clearly that there was no e at the end, and then, conclusively, with a letter he had written in 1974 in which he had transcribed the word with perfect accuracy. “When you go into the witness box to answer questions on oath,” Rampton commented acidly, “you simply pluck an explanation out of the air, do you not? . . . Yesterday’s answer was a false answer.”60 Irving had said that he had admitted that the order only covered Jews from Berlin when he was later made aware of the documentary context. But the context was there in the document itself, in the words aus Berlin, from Berlin. The omission of these words from Irving’s original account of the document in 1977 was clear evidence of misrepresentation. Irving described this as a “smokescreen.” “On the contrary,” remarked the judge, “it is the whole point of the criticism.”61
This was not the only falsification in Irving’s account of these events. He had gone on to claim that on 1 December 1941, “Himmler telephoned SS General Oswald Pohl, overall chief of the concentration camp system, with the order: ‘Jews are to stay where they are.’”62 Himmler’s phone log for 1 December 1941, published in a scholarly edition in 1999, did indeed confirm that he spoke to Pohl that day. However, what he said was not what Irving claimed at all. I had looked it up in the edition. Himmler summarized the conversation as follows:
‘Besuch bei Schwarz.
Koksagys.
Verwaltungsführer der SS
haben zu bleiben.
Lappenschuhe u. Finnenstiefel’63
The relevant part of this entry for the matter under discussion consisted of the third and fourth lines, which together made a single sentence: “Administrative leaders of the SS are to stay.” Thus, what Himmler talked about with Pohl was not that Jews were to stay were they were (i.e., safe from ‘liquidation’), but that the administrative leaders of the SS had to stay where they were. The term Jews was not mentioned by Himmler in his phone call at all. It was simply fabricated by Irving, a fabrication that he continued to repeat in other books, such as the 1991 edition of Hitler’s War.64 It was clear that this had been a grotesque misreading of the word haben as Juden in a sentence that obviously began on the previous line. H had become J, a had become u, b had become d.
Irving tried to suggest this had been an honest mistake because Himmler’s handwriting was difficult to decipher. Facsimiles of the original document were handed around the courtroom. The handwriting was clear enough to anybody who had learned to read the old Sütterlin, the script normally used in Germany up to the end of the Second World War. If it really was difficult to read, what should a diligent historian do? Certainly, in view of the importance attached to the passage, a wild guess would be out of the question.
PROF. EVANS: When you are reading handwriting, if you find something difficult to read or ambiguous, you then search for other, similar letters, the same letter, in other words, in the same hand, to try and figure out what that particular hand’s version of a B or a D or an E or a U actually looks like. . . . From the text there are a number of indications which somebody who was not biased and looking for some evidence to the contrary, that is (to) say an objective historian, that this is “haben zu bleiben.” First of all, the fact that it is indented, the second line “haben zu bleiben” does suggest that it runs on from the first line. The new entries here begin right next to the middle of the page. They are not indented. Secondly, this writer, as is common in this handwriting, generally puts a kind of what you might call a little inverted circumflex over a U. . . . You were misled by your overwhelming desire to exculpate the Nazi leadership into misreading this as “Juden” instead of “haben,” whereas to any objective historian, taking even a minimal amount of care about reading this, it was very easy to establish that this meant “Verwaltungsführer der SS haben zu bleiben.” To that extent, therefore, I think you deliberately misused and abused this text.65
Irving, in other words, wanted it to be Juden zu bleiben–despite the ungrammatical nature of the phrase–and so it was. When Richard Rampton took him to task for reprinting this mistranscription in the 1991 edition of Hitler’s War, Irving tried to persuade him that the book had gone to press before he had known about the error. But he had known about the mistake in 1988, Rampton countered; and he had had time to excise all references to the Holocaust from the text after that date. So Irving was forced to admit: “I could have taken it out, yes.”66
In fact, the Jews did not stay in Berlin, if that was where Irving claimed they were to stay. They were sent to Riga, and on the arrival of the transport in question, they were immediately shot along with the Jewish inhabitants of the Riga ghetto. How many died in this action? Irving claimed that on 30 November 1941, one thousand Jews from Berlin and “four thousand of Riga’s unwanted Jews were . . . machine-gunned into two or three pits.” Irving’s assertion here, made with absolute certainty, relied on an early report of Einsatzgruppe A. However, in a later report compiled by the Reich Security Head office, the number of Jews shot in Riga on 30 November 1941 was given as 10,600. After further detailed investigation, a Hamburg court sitting in 1973 put the number at between 13,000 and 15,000.67 The total massacred on this day and in a second mass killing very shortly afterwards reached no fewer than 27,800.68 Only in his footnotes did Irving acknowledge that Einsatzgruppe A had reported in early December 1941 that a total of 27,800 Jews had been executed in Riga in these two killing actions at the end of November and the beginning of December 1941. Irving immediately cast doubt on these figures, however, claiming that they were “possibly an exaggeration.”69
Irving also made use of the testimony of Walter Bruns, whose conversations with fellow-officers about these events had been secretly recorded by their British captors immediately after the war. Bruns described how the victims had been gunned down into three ditches (24 meters long, about 3 meters wide). Irving claimed that each ditch “would have held one or two thousand victims.” Yet Bruns made no reference at all to the crucial missing dimension of the depth of the ditches. This led to one of the most absurd exchanges of the whole trial.
MR. IRVING: Would you accept that I am expert in digging pits, having worked in my early years as a student as a navvy for many years in order to finance my way through university?
MR. JUSTICE GRAY: Mr. Irving, come on. You can dig a pit as deep as you have got the energy to dig it.
MR. IRVING: My Lord, that is a very hazardous operation if you are standing at the bottom of the pit and you dig it without any kind of shoring. I would now draw your Lordship’s attention to one such pit which is photographed in the little bundle I have you . . .
PROF. EVANS: And you are saying, are you, Mr. Irving, that this is one of the pits in Riga? . . .
MR. IRVING: This is, well, as you can tell by the British soldiers standing around with machine guns, this is probably Bergen-Belsen or Buchenwald, where the victims of Nazi atrocities are being buried by some of the perpetrators.
( . . .)
PROF. EVANS: . . . This has no relevance whatsoever to the matter we are dealing with.
PROF. EVANS: You can dig a pit any depth you like, Mr. Irving.
MR. IRVING: Is that your expert evidence as a pit digger or can we apply some common sense?
PROF. EVANS: As it happens, I have been having my house reconstructed, Mr. Irving, recently–
MR. JUSTICE GRAY: That is as may be.
PROF. EVANS:–and people have been digging pits and I have watched them, so I do know something about digging pits.
Irving too may have known something about digging pits, but he neglected to mention that photographs of SS killing pits in Eastern Europe showed them with shallow, sloping sides, not sharp, vertical edges that would need shoring up. But he plowed on anyway.
MR. IRVING: So if it was 2 metres deep and if it had straight sides and if there was no back fill–
PROF. EVANS: That is three “ifs,” Mr. Irving.
MR. IRVING: –would you stop interrupting–you would get 1,500 bodies into that pit, is that right?
PROF. EVANS: Yes.
MR. IRVING: So if it was another metre deep, you would get another 750 in, so you can do an order of magnitude calculation, can you?
PROF. EVANS: On the basis of those four “ifs,” yes, you can do any calculation you like.
MR. IRVING: So you can do a ball-park calculation of two or three pits of that kind of size and magnitude would hold of the order of, say, three to 7,000 bodies?
PROF. EVANS: Yes, on the basis of those four hypotheticals, yes.
MR. IRVING: Did you bother to do such a check sum before you criticised me?
PROF. EVANS: I did not know how deep the pits were, Mr. Irving. My criticism is that there is no evidence of the depth of the pits. You do not provide any. You simply make all these if, if, if assumptions and then somehow treat them as facts.
MR. IRVING: Do you accept that when you are writing history and you cannot get all these documents on hand, occasionally you have to make common sense calculations and deductions?
PROF. EVANS: This is not common sense, Mr. Irving. This is a systematic attempt to undermine the figure given of 27,800 Jews, suggesting that this is too large. This is typical of your minimisation of the statistics of the numbers of Jews killed in any number of instances.
MR. JUSTICE GRAY: Right. On to the next point, Mr. Irving. I think we have exhausted that.70
In the midst of all this surrealism, it was sometimes difficult to remember that what we were actually talking about was a large number of completely innocent civilian men, women, and children, having been brutally snatched from their homes, being summarily machine-gunned into pits for no other reason than that they were Jewish.
Irving had actually read out the whole of Bruns’ report in his Opening Statement, in an attempt to prove to the court that he did not suppress evidence of Nazi atrocities. But confronted in court with a passage in Bruns’ report indicating that Hitler had personally ordered the shootings, he now tried to pour doubt on Bruns’ testimony. “Perhaps,” he said, “he is not entirely unaware that somebody may be listening.” Bruns, he suggested, had sought to exculpate himself before his hidden British listeners by blaming Hitler. But Irving had evidently forgotten what he had said only a couple of days earlier in his Opening Statement. This was now quoted back at him by leading defense counsel Richard Rampton QC. On 11 January, Irving had said that the General “has no idea that in another room British experts are listening to and recording every word.”71 Forced to accept the veracity of Bruns’ testimony, Irving tried to discount it in another way, alleging that it was unreliable “because other evidence shows that Hitler had not issued the order”–a false claim in itself, since there was no such other evidence, only an absence of evidence, in the form of a document signed by Hitler, that he had. “I have to remind you,” Irving told Rampton at this point, “of one of the basic principles of English law, that a man is innocent until proven guilty.” One had to pinch oneself to realize that Irving was referring here to Adolf Hitler. “Hitler,” commented Rampton, “is not on trial, alas.”72
Irving’s line on an entry in the diary of Hans Frank, the Nazi legal expert who ran the Polish General Government during the war, was even more brazen. In December 1941, Frank had noted in his diary that he had addressed his staff on the subject of the General Government’s Jews. “What is to happen to the Jews?” he asked. “Do you believe that they will be lodged in settlements in the Ostland?” Clearly not, he told his staff. “In Berlin we were told, ‘Why all this trouble? We cannot use them in the Ostland or the Reichskommissariat either. Liquidate them yourselves!’” This speech was delivered just a few days after Hitler had addressed a general meeting of senior Nazi officials in Berlin on 12 December, reported by Goebbels in his diary, declaring that “the annihilation of Jewry must be the necessary consequence” of the World War that had begun with the entry of America into the conflict the day before.73 So what Frank was told in Berlin, he was in all probability told by Hitler himself, since Hitler’s speech to the Nazi Party officials the day after the declaration of war on America was the only plausible reason for Frank’s presence in Berlin at this time.
Irving first tried to argue that Hitler had not been in Berlin at the same time as Frank, as indeed he had claimed in Hitler’s War, but was quickly forced to withdraw this suggestion and admit that he was. However, he refused to admit that the account he gave in the book of what Frank had actually said was manipulated. In court, he repeated the claim made in Hitler’s War that on 16 December 1941, Hans Frank “makes a pretty lurid statement about, ‘What do the people in Berlin think we are doing? We say liquidate them yourselves.’”74 In other words, he tried to make his readers believe it was Frank telling the leadership in Berlin to liquidate the Jews, not the other way around. How could he justify such a blatant reversal of the sentence’s meaning? As so often when driven into a corner, Irving took refuge in claiming that “as we know from other sources, Hitler was intervening constantly to stop these things being done.” But those “sources” were also manipulated by Irving to say the opposite of what they meant, so the whole argument became entirely circular, as one falsification became the justification for another.75
One of the most important of these sources from Irving’s point of view was the so-called Schlegelberger memorandum.76 Irving quoted his summary of the document’s contents from page 464 of the 1991 edition of Hitler’s War.
MR. IRVING: “Hitler wearily told Hans Lammers that he wanted the solution of the Jewish problem postponed until after the war was over, a ruling that remarkably few historians now seem disposed to quote.”
PROF. EVANS: Yes. That is a complete misrepresentation of what we are calling the Schlegelberger memorandum.
MR. IRVING: In what way is it a misrepresentation?
MR. JUSTICE GRAY: Do not let us go through it all over again.
PROF. EVANS: There is nothing weary about it. He did not tell Lammers. There was not a ruling . . . , otherwise why would the Ministry of Justice have gone ahead quite shortly afterwards and arranged for the Jews in state prisons to be taken out and sent off for extermination? It beggars belief that this is actually a ruling which then does not leave a paper trail, as you describe Hitler rulings doing throughout the bureaucracy, saying, oh, the Führer has ordered that the solution has to be put off, hold it everybody, let us stop. The whole thing goes on.
Irving’s response to this was to claim that there was no evidence that the prisoners had been sent off to be killed. Vernichtung did not necessarily mean killing, he said, although at this time, most historians are agreed that it did. He then asked why they should be killed when Germany needed manpower? In fact, of course, by this time the Nazi regime regarded the destruction of the Jews as one of the principal aims of the war itself.77 Even if this were not so, the document did not provide any support for Irving’s firm statement that it proved that Hitler had tried to stop Jews from being deported.
Irving’s method of dealing with documents whose import was not convenient to his preconceived views was to cast doubt on their authenticity. This took up a good deal of the court’s time on occasion. But it was seldom convincing. Fairly early on in the trial, Richard Rampton confronted Irving with a document reporting that 97,000 Jews had been killed in the gas vans at Chelmno. Irving had written and said on many occasions that the Nazis had only undertaken gassing on an experimental scale. Rampton, knotting his gown behind his back and pulling the ends tight, as he always did when he had the witness cornered, forced Irving to agree that the 97,000 had been gassed. Irving’s response was inadvertently revealing:
MR. RAMPTON: . . . 97,000 people in three trucks in the course of five weeks.
MR. IRVING: It is a very substantial achievement when you work it out with a pocket calculator–
MR. RAMPTON: Clever SS!
MR. IRVING: –at 20 people per time, and they drove 20 kilometres into the countryside. I have read all the reports on this.
( . . . )
MR. RAMPTON: . . . Would you describe it as very limited and experimental?
MR. IRVING: Not on this scale. This is systematic.
MR. RAMPTON: It is systematic, huge scale, using gas trucks to murder Jews?
MR. IRVING: Yes. No question at all.78
Irving’s written statements that gassing had only been used experimentally and on a limited scale were, he was forced to admit, “just plain wrong.”79 He was aware that he had made an important concession. He came back to the document much later in the trial. Irving noted that the words at the top, Einzigste Ausfertigung, literally, “onliest copy,” could not be found on any other document anywhere, that the way it began, with the word Beispielsweise (for example), was “an unusual turn of phrase to begin a letter with.” What was he trying to say? When the judge challenged him to come clean on whether he actually thought the document was authentic or not, he was forced to retreat:
MR. JUSTICE GRAY: You rely on that as an indication that this is not an authentic document?
MR. IRVING: I am trying to plant a seed of suspicion in your Lordship’s mind, that is all.
MR. JUSTICE GRAY: You are not succeeding at the moment because I would have thought, if you are trying to create a document that is going to deceive anybody, you would not do what you say is something obviously inappropriate, which is to refer to an example in the first paragraph.
MR. IRVING: It would be inappropriate for me to do anything else . . .
MR. JUSTICE GRAY: So you accept this is an authentic document?
MR. IRVING: For the purposes of this morning, yes.
MR. RAMPTON: I do have to know sooner or later, and so does your Lordship, whether Mr. Irving accepts for the purposes of this trial that this is an authentic document. If it is a forgery, we need to know why he says it is a forgery.
MR. JUSTICE GRAY: You do not say it is a forgery?
MR. IRVING: No.
MR. JUSTICE GRAY: Then we can forget about Beispielsweise, can we not?
As Christopher Browning pointed out, the linguistic oddities were easily explained by the fact that the document was written by an uneducated mechanic in the motor pool in Berlin, and that “for example” referred back to the subject of the letter–technical changes in the gas lorries.80 Innuendo of this kind was Irving’s stock-in-trade. But it did not wash with the court, which insisted time and again on a clear view one way or the other.
When he was completely unable to defend himself on rational grounds against the accusation that he had doctored a source, Irving pleaded literary license of one kind or another. “We are writing a work of literature,” he said grandly, and a “precise, literal translation . . . would end up with a ghastly book of the kind that academics and scholars write.”81 If he had abridged quotations, it was not because he wanted to suppress something inconvenient to his argument, but because he did not want to make his books too long by filling them with “acres of sludge.”82 On occasion, he even claimed that his American editors had removed passages from the 1977 edition of Hitler’s War when it came to be reissued in 1991 without consulting him, a story that seemed barely credible in view of the fact that he also admitted that he himself had been over the text to remove the passages which mentioned the mass gassing of the Jews.83
Irving got himself into a similar tangle when trying to deal with the allegation that he had close contacts with the Institute for Historical Review, the leading Holocaust denial organization in the United States. First, he tried to claim that his contacts were not close. My report showed that he had been a frequent visitor to the Institute’s conferences. He had spoken five times there, once in 1983 then again four times in succession at the ninth, tenth, eleventh, and twelfth conferences. Seventeen years had elapsed between his first speech in 1983 and the present trial.
MR. IRVING: Five times in 17 years is not a frequent visitor, by any reckoning, is it?
PROF. EVANS: Four times in four years is a very frequent visitor, Mr. Irving.
MR. IRVING: What makes you think that the ninth, tenth, eleventh and twelfth conferences were on an annual basis?
( . . . )
PROF. EVANS: Are you telling me they are not, then? Would you like to tell me the dates of those conferences?
PROF. EVANS: So in that case, 17 years, . . . five visits is actually rather frequent; it is the majority of them, is it not?
MR. IRVING: Do you agree that five times in 17 years does not qualify for the word “frequent visitor”?
MR. JUSTICE GRAY: I think the point he is making is that if they are every two or three years, you have been to every single one.84
Since I was obviously unaware of the fact, and had not mentioned it in my report, Irving did not mention that he had also been the keynote speaker at the IHR’s conference in 1998, which would have made it six conferences, not five.85 In any case, if the Institute was a respectable academic institution, as he had claimed in his written submission to the court before the trial, then why was Irving trying to dissociate himself from it in this way?
Was he a Holocaust denier? It was absurd, Irving said, to label as a Holocaust denier “somebody who challenges a figure.” But he did not challenge my definition of Holocaust denial in any detail. Irving’s claim that 4 million Jews had been killed by the Nazis made the newspapers as if it had been some kind of retraction. But Richard Rampton forced him to admit that this number included deaths from disease. As far as the numbers were concerned, all Irving would admit was that up to one million Jews had been shot by the Nazis behind the Eastern Front.86 His view of the rest was revealed dramatically when a woman confronted him one day as he stepped out of the Law Courts on to the Strand, and told him her grandparents had died in Auschwitz, “Well,” he replied, “You can be comforted in the knowledge that they most likely died of typhus, just like Anne Frank.”87
Irving admitted freely: “I denied the gas chambers.”88 Did he believe the extermination was systematic, then? In his published writings and speeches, Irving had claimed that the shootings of Jews behind the Eastern Front were the result of rogue elements in the SS acting on their own initiative, rather like the American army lieutenant who massacred villagers at My Lai during the Vietnam War. But faced with evidence that the Einsatzgruppen reports detailing, among other things, the numbers of Jews killed, were asked for by Heydrich in Berlin, sent to him regularly, and ordered to be shown to Hitler, Irving was forced to admit that “that was wrong” and that “there was a co-ordination . . . a systematic direction going on between Berlin and the Eastern Front where the killings were taking place.”89 He agreed that Hitler knew and approved of what was happening as well.90 Irving had to make other concessions when confronted with hard evidence by the defense counsel. He conceded, for example, that it was probable that hundreds of thousands of Jews were deliberately killed in the ‘Operation Reinhard’ camps.91 He also agreed that the Leuchter Report was fundamentally flawed, and that gassing of humans did take place on a limited scale in Auschwitz as well as on a larger than experimental scale at Chelmno. Irving was caught in a trap here: if he continued to defy the evidence and deny that these things had happened, then Lipstadt’s charge that he was a Holocaust denier was proved correct; if he retracted his earlier views when confronted with hard evidence, then he was conceding her charge that he had denied the Holocaust in the face of facts that he knew to be true. Perhaps because of this, Irving issued the court with a written retraction of some of his concessions. But since he had made the concessions on oath, this did not count for much in the end.92
Irving evidently found it much easier to dispose of eyewitness accounts of the mass murder. His treatment of the description of Auschwitz by a former inmate, Marie-Claude Vaillant-Couturier, was characteristic: unable to discredit the detail it contained, he took refuge in the notes made on her testimony by an American judge at the Nuremberg trial. At the end of the short paragraph recording her evidence that the SS had kept brothels at the camps, Judge Biddle had added the parenthetical note: “(This I doubt.)” When Irving came to reproduce this note, he removed the brackets and rewrote it as: “All this I doubt.)” In this way, he made it refer to the entirety of Vaillant-Couturier’s testimony, which of course included evidence of the gas chambers. On one occasion Irving had even claimed that Judge Biddle had written: “I don’t believe a word of what she is saying. I think she is a bloody liar.” He had to admit that this latter claim was wrong, but insisted he had been right to add the word all “to make it more literate for an audience.”93 Of course, it also altered the meaning at the same time.
Irving had also tried to discredit the diary kept by Anne Frank, a young Jewish girl, in Holland, before her deportation by the Nazis to Auschwitz, and eventually to Bergen-Belsen, where she died. An exhaustive scientific investigation by the Netherlands State Institute for War Documentation carried out after the death of Anne Frank’s father Otto in 1980 had demonstrated conclusively that the diary had been written by one person and that all the materials used were in use in the 1940s. It had also found a limited number of minor stylistic emendations made later on, in ballpoint pen. Apart from these, however, the diary was undeniably authentic.94 Disregarding these findings entirely, Irving had followed other Holocaust deniers in describing the diary as a ‘novel,’ alleging that the handwriting was not hers, suggesting that whole pages were written with a ballpoint pen, and asserting that a thirteen-year-old girl would not have had the maturity to have written such a document. He had made these fantastic allegations in 1993, long after the Netherlands State Institute for War Documentation had completed and published its work. He was also unable to explain away the fact that he had told CNN television news on 16 January 2000 that he had previously said the Anne Frank diary was a forgery and now admitted that it was not.95
Falsifications such as these, alleged the defense, were made in the service of Irving’s racist and antisemitic ideology. Had he been antisemitic? Irving tried to argue that whatever remarks he had made about Jews and their organizations had been justified. But he was on sticky ground:
MR. IRVING: . . . I have made a speech in 1992 and you take exception to my description of the Board of Deputies (of British Jews), and the words that I use. Is any criticism of an organization like that permissible, do you think?
PROF. EVANS: I do think it is rather over the top to describe the Board of Deputies of British Jews as cockroaches.
MR. IRVING: If you are familiar with the methods that they have used to destroy a professional historian’s career and family, would that professional historian be entitled to use pretty colourful language to describe these people who are secretly trying to destroy him?
( . . . )
PROF. EVANS: I would have to first of all see evidence to persuade me that such a secret dastardly campaign had been carried out. I do not want to answer a hypothetical question of that nature. I do think that professional historians should be reasonably measured in their language. I do not think that is an appropriate word to use.
MR. IRVING: If the court is shown a document showing that at this precise time that body was contemplating putting pressure on that author’s publisher to stop publishing his books and thereby destroy his career and livelihood, and they were doing it behind armour plated doors in their headquarters–
MR. JUSTICE GRAY: Show the witness the document and then we can see.
What Irving showed me was a copy of the minutes of the Holocaust Educational Trust’s Education and Academic Committee, not the Board of Deputies of British Jews, meeting on 12 December 1991, at which, as the minutes reported, “concern was voiced over the publication of the second edition of Hitler’s War. There was debate over how to approach Macmillan publishers over Goebbels’s Diary, It was agreed (to) await news from Jeremy Coleman before deciding what course of action to take.”
So in fact the meeting did not decide to put any pressure on Irving’s publishers. And since Irving had used the expression cockroaches on 5 October 1991, more than two months before the meeting took place, it was hard to see how the document Irving presented to the court could even begin to justify his using an expression of that kind.96 Defeated on this point, Irving retreated:
MR. IRVING: . . . Witness, will you accept that, on the balance of probabilities, there are other documents of that nature in that bundle?
MR. JUSTICE GRAY: If I may say so, Mr. Irving, we must do better than that.97
An alternative tactic was to dispute the significance placed on some instances of his antisemitism in the report. This too proved difficult. When he tried to argue that the list of “traditional enemies of the truth” he had placed on his website contained many non-Jewish organizations, Richard Rampton was able to show that “Mr. Irving has identified as being not Jewish I think four that, in fact, are Jewish. The only two that are not that we can tell are the Australian and German governments.”98
By the time he got to Dresden, Irving was clearly running out of steam. Under cross-examination himself, he had become visibly angry about the bombing, waving photographs of the dead at the court and almost losing self-control when Richard Rampton responded by saying “So what?”; for the issue was not what happened in Dresden, but how Irving had portrayed it in his book.99 Astonishingly, he claimed under cross-examination himself that he had “always recognized” that TB 47 was a fake. Given this admission, he was unable to account for the fact that he had presented the figures that it gave as genuine.100 And he ended on a bizarre note, with an elaborate excuse for the delays on his side in corresponding with Dr. Funfack, an excuse that I was happy enough to accept, given the fact that it had no bearing on the case against him.
Irving returned to a number of these issues in his lengthy Closing Statement to the court. “A judgment in my favour,” he said, “is no more than a judgment that disputed points which I have made about some aspects of the narrative are not so absurd, given the evidence, as to disqualify me from the ranks of historians.”101 As a result of his work, and indeed of the trial, he claimed, the Holocaust had been “researched more, not less.”102 He had made mistakes in his work, to be sure, but so did all historians, and if any other historian had been subjected to the kind of critical investigation to which he had, the results would have been more or less the same. He admitted occasional lapses of taste in his speeches, but in his written works he had not distorted, falsified, or manipulated history at all. Professional historians, “including some whom you have heard in court,” had “cheered from the sidelines as I have been outlawed, arrested, harassed, and all but vernichtet as a professional historian; and they have put pressure on British publishers to destroy my works.”103
Irving had not, of course, presented a shred of evidence to support this wild and paranoid claim, nor could he have done so, because it was not true. Even if it had been, however, it had no more bearing on the case than did his equally wild claims about a world conspiracy to suppress his views, to which he devoted a substantial part of his Closing Statement.104 On the substantive issues before the court, Irving had nothing new to say. At one point the defense counsel complained about his “continuous misrepresentation of the evidence of my witness.”105 And when it came to rebutting the defense charge of consorting with neo-Nazis in Germany, Irving’s habit of improvising from his prepared text led him into a fatal slip of the tongue, as he inadvertently addressed the judge as “Mein Führer.”106 Everyone in court knew that he was referring to the judge as “Mein Führer” from the tone of voice in which he said it. The court dissolved into laughter.107 “No one could believe what just happened,” wrote one spectator. “Had we imagined it? Could he have addressed the judge as ‘Mein Führer’?” Irving himself denied having made the slip.108 But amid the laughter in court, he could be seen mumbling an apology to the judge for having addressed him in this way. Perhaps the slip was a consequence of Irving’s unconscious identification of the judge as a benign authority figure. Whatever the reason for it, with the laughter still ringing in its ears, the court adjourned on 15 March 2000 as the judge prepared the final version of his judgment on the case.