Scene Setting.. Skip this if you know the Law Courts

What's Going On?—Some Facts and Puzzles about this Case

Cast of Characters

What Lipstadt's Book says about Irving

My Guesses as to Courtroom Battles, and their Outcomes

Will it Become, or is it Already, a Political Trial?



The first day. Tuesday 11th January 2000
      IRVING       v       LIPSTADT and PENGUIN BOOKS LTD.  
David Irving

Irving

Irving website
Royal Courts of Justice
Deborah Lipstadt

Lipstadt
Rae West's Unofficial Site. A guide to this case. [ Home page ]
Part 1. To be updated about once a week.
Day 1 transcript (146K) | Day 2 transcript (261K) | Day 3 transcript (272K) | Day 4 transcript (274K) | Day 5 transcript (252K)


Scene Setting... Skip this if you know the Law Courts
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The 'New Law Courts' are (see pictures above—none very recent) late Gothic revival, and have a huge entrance hall which is only partly-decorated, because funding from unclaimed estates and other assets, held by lawyers, ran out. The buildings were opened about thirty years after the better-known Parliament buildings (which, it isn't usually appreciated, were lit by candles or gaslight when new, and must have been visually astonishing).
        As always, vague smears surround Irving: a BBC breakfast programme on the first morning showed the first of three pieces about the Internet and extremism. The man at the Law Courts reception desk told me it would be an unpleasant case. And added that the public were excluded. This in fact wasn't true. He directed me to Court 37, in West Green building, over to the left. The courtrooms all seem to be grouped in fours, with common waiting areas outside which are rather bare, with padded benches and a few hard tables, usually strewn with newspapers. There's standardised dress for officials and lawyers, with the public often looking rather shabby by contrast. The legal system is, or was, stratified by class, with barristers (who do the talking) wearing wigs in more or less exuberant style from the upper classes- having attended public school at 'eaten lunches' at the Inns of Court, solicitors (who do the legal spadework) from the middle classes-having done law degrees or worked at legal firms, and the ushers and police and so on firmly from the lower orders. At least, as a first approximation, all this is true enough. Court 37 is modern 1970s or 80s: false and rather low ceiling, fluorescent light, eroded aluminium-framed windows, microphones suspended from the ceiling. I suspect there's no air conditioning, and the room can and does get stuffy. At present, it's winter, and gloom descends at about 4 pm.
        The battleground, or field of play, is:— judge at the back, raised up, visible over a long bench. He's flanked by two people who seem to do nothing. In front are several benches taken up by stenographers, and other people who also seem to do nothing. There's a witness box. Facing all this is, on the left, Irving. And on the right, Mr Rampton, wearing a grey horsehair wig. He's the barrister, or QC, or Queen's Counsel, and is surrounded by a squad of people, mostly I imagine from Mischcon de Reya, a law firm, one of the partners of which is Anthony Julius, Lipstadt's lawyer. He is something like a Queen Bee licensed to talk, and he receives whispers, scribbled messages, and so on. There are several benches of these legal persons, about ten in all, with others, mostly well-dressed young women, whose role seemed to be to sit near the back and 'observe'. Then we have a few rows of seats, some with PRESS signs pinned on. The sides of the room have red lever-arch files of evidence arranged in cardboard shelves.
        An important difference from many courts is the computer technology: a skilled operator working an odd-looking unmarked keyboard enters syllables (I think) directly, and the software does some sort of conversion into English, so the court transcript can be produced almost instantly. There are at least six or eight lap-top computers linked to display the transcript, so the participants can read it, and scroll back to check what's been said. (There are mistakes—especially when several people talk at once—but on the whole the transcripts are reliable. Presumably successful comparisons have been made with results from conventional court shorthand).
        The general crush (I estimate about fifty 'lay' people) included a man who'd written on the Palestinians, an ex-Guardian journalist, six or eight women who seemed to be reporters, or amateur reporters, (they had yellow writing-pads!), and who seemed to know nothing of libel law or of Irving's work. There were several elderly women from somewhere like Los Angeles, a small shabby man in a pullover with the furtive air I've come to associate with ignorant hack writers, a couple of men who struck me as physically unwholesome, and sundry others. Outside were at least two TV crews (cameraman, someone to hold a mike, someone with back wired up—not inappropriately resembling an electrically-controlled ventriloquist's dummy).
        I can't resist a comparison with McDonald's 'McLibel' case, in which the two defendants (not plaintiff, as Irving is) represented themselves, over a long period, also against Rampton, with no jury, in a courtroom in the same building, also lined with files of documents, with, I believe, the first use of the new system of transcription, which allowed the McSpotlight site to have a new transcript every day. However, Irving so far as I know has no legal help, unlike the two McDonalds defendants. (I contacted Dan Mills, one of their solicitors, but had no reply). The McLibel trial probably had no influence on McDonalds new 'restaurants'; it remains to be seen whether this trial will have as little influence.

 
What's Going On?—Some Facts and Puzzles about this Case
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Cast of Characters
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What Lipstadt's Book says about Irving
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Note: it's important to understand that this legal action could only take place because the book was published for a time in Britain, I think in 1994. If publication had been confined to the US, Irving, had he started a case, would have got nowhere. Irving insists that Viking-Penguin merely had to phone him to check the contents, but didn't. From his point of view, the book appears to have been something like the last straw.
        My own guess is that Viking-Penguin in effect dumped the book; they have thousands of titles, and the standard way to issue ones printed in America is to send a few thousand spare copies to Britain, a few hundred to Australia, a thousand to Canada, a few hundred to South Africa, and so on, in their shipments. I've seen a figure of 2,000 copies distributed in Britain, though I forget where I found this; and I suspect most copies ended in libraries, either bought or donated. There is a theory that the publishers cunningly engineered this situation, hoping to provoke a law case; but my guess is that the trial was not foreseen by the publishers—the title probably wasn't seen as anything special, just another low-selling title which wasn't worth editing for the local market.

Irving states that Lipstadt's book had passages about him inserted at a late stage, suggesting she hadn't even heard of him. This seems likely, as the references to Irving, which are few, are inserted into chapters on other subjects. The 'research' seems to be of extraordinarily low quality—or perhaps it's just ordinarily low. There's little evidence and Lipstadt seems to have no facility for separating hearsay, testimony, and evidence.
        Anyway, below I attempt to extract the main points she makes about Irving, ignoring the rest of the book. (My edition, available in Britain, was published by 'The Free Press', which has some connection with Maxwell, the well-known fraud, and Macmillan; Viking-Penguin isn't listed, and is perhaps involved through a merger or buyout—I don't know. It's dated 1993 and already seems careless—for example, she takes Pressac seriously, and is casual in her treatment of pre-World War II Judaism. My copy, judging by spelling, is identical to the US edition, so I'll assume its page numbering applies generally.)
        The only four passages found for me about Irving are on pages 8 (1 paragraph), 111 (part para only), 161-162 (3 paras), and 179-181 (8 paras). There are about 40 statements made about Irving, then exact depending on how they're counted. Of these, about half are referenced—they have endnote numbers. The remainder are, of course, unreferenced. This gives a manageable set, which I'll now examine at not too great a length:—
  1. Referenced Statements.
    About twenty: Page 8: denier, gas chambers a "propaganda exercise" (n22), regular participant at Deutsche Volks Union (n23), women built to "produce men" and be subservient (n24), not a credible figure to German deniers (n25). Page 111: David Irving quoted by Nolte re prewar Nazi persecution of Jews (n33). Pages 161-2: Scholars have accused him of distortion (n16), scholars have dismissed the idea that Hitler did not know about the Final Solution (n17), has been accused of skewing and misrepresentation (n18), spiritual experience at Hitler's retreat (n19), Hitler helped Jews (n20), self-described "moderate fascist" (n21), Hess should have received Nobel Peace prize (n22), marriage a detour and being born in 1938 (n23). Pages 179-181: converted by Leuchter to Holocaust denial (n105), swindle of 90 Bn deutsche marks over Auschwitz (n106), Auschwitz monument a "tourist attraction" (n107), British Psychological Warfare 1942 story of killing millions (n108), Sunday Times in 1992 may have revived his reputation (n110), ludicrous to refer to Irving as transcribing technician (n111), TV rarely addresses neofascist or denial connections (n113), double standard of absolute proof for Germans, circumstantial to condemn allies. (n114). Page 180 has a footnote relating to the glass plates on which the Goebbels diaries are microphotographed. The reference is dated January 1993, (Lipstadt's foreword is dated Jan 14th 1993), so one guesses it was shoehorned in after the main text had been assembled. This is important as regards Irving's competence, and much of Irving's opening speech dealt with the claims as regards archival material. In full, this is:
    The Russian archives granted Irving permission to copy two microfiche plates, each of which held about forty-five pages of the diaries. Irving immediately violated his agreement, took many plates, transported them abroad, and had them copied without archival permission. There is serious concern in archival circles that he may have significantly damaged the plates when he did so, rendering them of limited use to subsequent researchers.
            Irving believes Jews are "very foolish not to abandon the gas chamber theory while they still have time." He "Foresees [a] new wave of antisemitism" due to Jews' exploitation of the Holocaust "myth". C.C. Aronsfeld, "Holocaust 'Revisionists' are Busy in Britain," Midstream , Jan. 1993, p. 29.
    Comments: It's possible all the above points will be examined in the trial. Irving's behaviour at the Russian archives certainly will, as we've seen. I'll point out here that the endnotes refer mostly to newspapers and small magazines which are probably unobtainable for most people in the USA. We've just seen, above, a magazine called Midstream treated as a serious source, with no information about the article's author; I wonder how many people have heard of either? Other sources include Daily Telegraph , a book by Robert Harris called Selling Hitler , and a magazine called Searchlight .
            Unwary readers may get the impression that there's some form of scholarship behind Lipstadt's footnotes, rather than a paperchase which mostly leads nowhere. To take the quotations on page 8 , we find they are from the Daily Telegraph , which is a vicious and grubby rag, the sort of thing read by vicars and retired persons who lovingly recall running over blacks in tanks in Africa. For years it supported apartheid, and other things—but I won't weary you with this. We find, consulting the relevant CD ROM, an article by Mick Brown, in which we find: 'The ‘legend’ of gas chambers, he says, was ‘a propaganda exercise’'—a phrase repeated by Lipstadt. That's all. The reader might imagine that the intrepid reporter would enquire of Irving what he meant, whether he was serious, or what evidence he had. But Brown, no doubt accurately assessing his readership, prefers to discuss Himmler in the east, Irving's daughter, his school beatings, and his lack of homosexuality. Thus, Lipstadt's quotation is simply quoting someone else, without supporting evidence. If this is research, anyone quoting something they've seen on TV or read in any newspaper is a 'researcher', or 'scholar'.
            The next claim made on page 8 is that Irving 'regularly participated in the annual meetings of the extremist German political party Deutsche Volks Union.' What we actually find in the Sunday Telegraph article of 19th Jan 1992 is: 'In March he is due to speak at the annual conference of the neo-fascist Deutsche Volks Union in Passau. He expects 10,000 people to be there—if the Germans let him in. He has been banned before.' In other words, Lipstadt has lied—one projected talk has been represented as 'regular meetings'. The Deutsche Volks Union, whatever it is, is not described; on the face of it, it seems unlikely to be neo-fascist, since one gathers there are German laws banning this. However, the Telegraph , like Lipstadt, prefers not to worry over small matters like evidence.
            Page 161 has bits taken from Selling Hitler (1991) by Robert Harris, about the 'Hitler Diaries' fraud. Unfortunately, again we find that Lipstadt has simply quoted someone else's unsourced quotation. Harris says, for example, 'Irving admitted that in writing Hitler's War he had identified with the Führer. Looking down upon him.. was a self-portrait of Hitler.. He did not smoke or touch alcohol. .. He shared Hitler's views on women.. In 1981.. he had founded his own right-wing political group, built around his own belief in his 'destiny' as a future British leader. ..' This may be true, but there's no background and an irritating lack of detail: what was the 'right-wing political group'? This book repeats the 'moderate fascist' comment, but I haven't been able to identify the source—forgive my laziness. Incidentally, I noted Hitler's War was, says Harris, 'savaged by Walter Laqueur in the New York Review of Books and boycotted by the major US paperback publishers.' (Without commenting on Laqueur, Lipstadt seems to think the New York Review of Books , which is of course an ordinary commercial/state rag which routinely censors material its advertisers or owners doesn't like, gives some sort of imprimatur—she mentions a review of Churchill's War , though, perhaps wisely, hiding the reviewer's name in the endnotes).
            Page 179 has a "one-man intifada" quotation attributed to Searchlight , a shady publication, which I think is subscription only, and so far as I've found, essentially an anonymously-funded one-man operation; my specimen copies are full of intelligence jargon.
            I suspect therefore that Irving will be able to make a good case here, more especially as he is accustomed to dealing with the intricacies of documents, and following threads from one to another. However, we shall see.
  2. Unreferenced Statements.
    These of course tend to be vague. Page 8 includes: 'long considered a guru of the extreme right', and 'extremist-sponsored rallies', 'an ultra-nationalist'. No evidence is adduced. (It might be amusing to hear Lipstadt try to explain exactly what she means by 'the extreme right'. Trevor-Roper wrote that to describe Hitler's takeover as 'far right' was part of the 'sterile vocabulary of the left.')
            An important issue could be Irving as a revisionist of Second World War historiography. Several times Lipstadt says this sort of thing: '[Irving is] The writer of popular historical works attempting to show that Britain made a tactical error in going to war against Germany and that the Allies and the Nazis were equally at fault for the war and its atrocities' ( p. 8 ) and '[Irving is] convinced that Britain's great decline was accelerated by its decision to go to war with Germany...' ( p. 181 ). One gets the impression that anyone examining the Second World War—which after all was quite an important event—and its conventional presentation—which was almost entirely shaped by thoroughly-controlled wartime propaganda— would be automatically condemned by Lipstadt.
            Another little trick is worth pointing out, namely the ascribing of a point of view to an entire well-known organisation, when in fact it's the viewpoint of one person or group. Thus ( p. 180 ) Lipstadt's book says the 'British House of Commons denounced the former [Irving] as a "Nazi propagandist and longtime Hitler apologist"..' And 'Condemned in The Times of London in 1989 as a "man for who Hitler is something of a hero.." ..'


 
My Guesses as to Courtroom Battles, and their Outcomes:—
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  1. Things which I think will happen:
    • Witnesses: I'm all but certain these will include an architectural expert on the plans of Auschwitz, sociological evidence on Judaism, evidence of ground-penetrating radar used at Treblinka, and John Keegan subpoenaed to talk on the Second World War, on which he's regarded as a military historian.
  2. Things which I think may happen:
    • Jewish conspiracy against Irving I think probably has to be raised, since Irving's damages depend on his showing that there were plots to prevent his books being published, distributed, reviewed and so on, and so damage his income. If he can show action was taken to damage him, presumably he'd be in a strong position. But this raises difficult questions—is such action in fact illegal; can private organisations legally do it? And what surveillance in fact actually goes on?
              The question also may arise as to what is a 'conspiracy'; everyone laughs at conspiracy theories, but, when there are problems, they start to see them everywhere. All this is a can containing many unpleasant and varied worms.
    • Gas chamber controversy seems likely, but not certain, to surface. This is because the conventional definition of 'the Holocaust' includes gas chambers, but Irving's definition doesn't. So presumably either side, depending on how it views the evidence available to it, might decide not to investigate the issue, and it might not arise.
    • Follower or admirer of Hitler is an accusation often made about Irving. Close examination of his books may incline the defendants against, or for, this view; I can't guess. I'm not sure what is needed to make such an accusation libellous. But clearly the issue is likely to surface.
    • Part played by Jews in the Soviet Union and for example Hungary. Irving claimed that all the worst Hungarian torturers were Jews. If the disputes start to rage about eastern Europe, as they presumably must, issues of this sort will probably come up.
    • International Law , such as it is, and Hitler and Jews before the Second World War, might be investigated. It would be interesting to have light shed on this, and, on the face of it, it's a topic which ought to be investigated, but, one guesses, probably won't.
  3. Things which I think won't happen:
    • Khazars as Jews. The Khazaria theory has existed for most of the 20th century, although it's been suppressed for various reasons. Despite its importance, I doubt it will surface here. This is because (1) the plaintiff, Irving, accepts many or all Christian beliefs, and seems to feel obliged to believe modern Jews originated in ancient Israel; (2) Lipstadt and her supporters can't consider it, since it's incompatible with their system of pretences; (3) Rampton probably won't have heard of it.
    • Christian forgery as a comparative money-making scheme to what may be Holocaust forgery. This, or indeed any other established fraud, and there are many, from AIDS and NASA to physics and weapons, could make an instructive parallel. The reasons I don't expect this to happen are similar to those relating to the previous idea, plus the extra effort needed to reorient thought in several fields. I expect, analogously, links between Catholicism and Fascism will probably be avoided.
    • WW2 War crimes against (say) Germans, Indians, Chinese. Again, despite the obvious importance of these comparisons, I doubt they'll be made. Nor will such issues as the non-bombing of Ford factories in Germany be raised. The taboos are probably too strong.
    • What is fascism? This seems a fair question, especially as the press and many statements use the word rather freely. I predict however that discussion will be discouraged, on grounds familiar to readers of (for example) Chomsky. Any of the possible characteristics—killings of civilians, cruelty on a large scale, forced movements of populations, racist discrimination, for example—took place and take place in the 'post-War' world.
              There may however be some interesting footwork as the defendants in particular talk about themselves—but not of course others. An example might be Irving's audiences, which Rampton in his opening speech said 'often consist of radical right wing, neo-fascist, neo-Nazi groups of people.' A video of Irving in the US shows him speaking to what appeared to be Billy-Graham-like fundamentalists, no doubt with an admixture of US war criminals. Will they be pleased to be described as likely neo-fascists? Another example might be some groups, described as campaigning for repatriation and the like. Will the comparison be made with Israel, campaigning to remove Palestinians?
    • What is genocide? This is unlikely to be brought up, for reasons similar to those applying to the previous category. But again there may be some interesting footwork.
    • Once-important publicists and potential witnesses such as Vrba, Fleming, Hilbert, Elie Weisel, et al. will refuse to appear, because the Zundel trials in Canada have shown such people what happens on cross-examination.
    • Theology: Why didn't God prevent killings of his chosen people? Lipstadt is supposed to be a professor of this sort of thing. However, long-established convention dictates that, even if she were required to speak, such questions would almost certainly not be put.
              Another possibility might have been that Irving may have pointed out that she presumably takes the Kol Nidre seriously, which explicitly pledges her testimony in a non-Jewish court to be deceptive. Conceivably the decision not to use her as a witness may have been to prevent Irving accomplishing this coup de théâtre .


 
Will it Become, or is it Already, a Political Trial?
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I consulted several books on the political aspects of law (for example, Peter Hain's Political Trials in Britain ) and some historical works, but none seem very satisfactory: few people seem able to separate the power structures from the coccooning verbiage of law. We find accounts of Socrates, Bruno, Joan of Arc; blasphemy trials; and people variously described as racists and fascists; and descriptions of judges as conservatives who are appointed in secret ways. I doubt whether military law (with peremptory removal of dissidents) is much of a guide. My only conclusion is that law is generally on the side of the powers-that-be, as one would expect—lawyers have supported slavery, exploitation, and so on, but, then, what else would they do? Change doesn't usually take place as a result of a verdict—changes in the law are more important.

It's possible this case will be decided politically; perhaps it's already been decided Irving must lose. Looking at a mixed bag of cases, it seems clear enough that the British government's recent treatment of Pinochet was political, not legal. The Birdwood case perhaps is a precedent: her prosecution petered out in what I take to be a trumped-up medical let-out, and the copyright status of her booklet was left in suspension. John Pilger was forced to make an obviously unconvinced apology as regards atrocity allegations he made. I haven't made much attempt to follow the 'denial' law in France; but clearly there must be pressure for a similar law in Britain, and if European Union law spreads this may be applied across all Europe.
        Unfortunately, Prime Minister Blair seems to be the sort of politician who sees his role as counterbalancing existing groups; not as encouraging some groups and discouraging others. For example, the billion-dollar 'dome' looks like a submission to vested interests; so does his, to my taste, rather contemptible deferring to religious superstitions, and his deferring to NATO. He has been reported as accepting money from Monsanto. Such a person, under pressure, seems likely to adjust laws to reflect pressures being applied, rather than aim at worthwhile but difficult goals.
        Another aspect is the effect on the future; no doubt scare stories will be manufactured, as happens all the time on many subjects. Is it the case that the risk of exposure of myth will cause people to adopt strange ideologies, vote for people with little moustaches, and invade foreign countries? May there be trade threats, or pressure to prevent media people, teachers and historians look foolish? Does it in fact such a trial make any difference?—if Irving won, there would still be countless films, novels, and books in circulation, huge funds to continue the tradition, endless actors and hacks willing to turn out anything paid for, and the effect may be as transitory as the Pentagon Papers .


The first day. Tuesday 11th January 2000
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Note: Unless otherwise stated, my descriptions apply only to hearings I've attended in person.

The first day was mainly taken up by the reading out of opening statements: Irving's was first, and it was rather long, partly for some technical reason about the following day which I didn't fathom.
        Irving appears to be going for the basis of the libel being that he manipulated and falsified history, i.e. he wasn't lazy or careless, but deliberately lied. His statement began with his account of his life and his histories, and continued with a long passage on the Goebbels diary glass plates, I think to establish his credentials as a serious obtainer, decipherer, and preserver of otherwise-endangered documents. He also mentioned Jews as opponents of the truth (he intends to call a sociologist from America on this subject) and of himself.
        Rampton, representing the defendants (Lipstadt et al) seems to follow rather closely the claims made in Denying the Holocaust , putting for example emphasis on Leuchter (perhaps Rampton doesn't know that other forensic investigations of Auschwitz have been made since 1993), and repeating the claim about the DVU (perhaps he can't operate CD ROMs). There's some suggestion that he will treat Irving's lawsuit as a 'campaign'; at any rate, that word surfaced in The Times report. Rampton read out what he regarded as an example, or perhaps the only example, of Irving's lies and fakery: a case in Riga involving orders about liquidation. Irving's account in Hitler's War was supposed not to correspond with the facts. And two editions of Hitler's War were very different.
        After this, Irving wished to show a video, but the equipment was not available(!). So it was agreed to adjourn.

 
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Key words, subject terms: Allies Anthony Julius Auschwitz Britain Christianity Churchill David Irving Deborah Lipstadt Denying the Holocaust Fascism France Germany Hitler Holocaust revisionism Holocaust denial Holocaust Judaism Khazaria libel Mischon de Reya Nazism Palestine Penguin Second World War Soviet Union Treblinka USA Vietnam War Viking Penguin Viking-Penguin visible defamation War Crimes
© Rae West 19 Jan 2000. This piece doesn't represent legal opinion. It's my personal interpretation of the event. I believe the content to be essentially correct, but of course the situation is complex, and unfortunately I can't guarantee that I haven't missed the point of some events, or the significance of other non-events. In fact, I probably have, since the courtroom situation has evolved in an opaque way—out-of-court settlements, for example, often being secret. The relevant pages of Denying the Holocaust were found by a friend of mine and may be incomplete. I'll archive these pieces for future reference.
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