NO doubt to the despair of the defendants' legal advisers, who will know what this kind of money-grubbing activity can cost in the event of a successful appeal, Cambridge Professor Richard Evans continues writing pot-boiler articles on his triumphant contribution to the Lipstadt victory in the libel action brought by Mr. Irving. Risking contempt proceedings, he is drawing on and quoting Discovery documents that are still privileged. Evans was paid nearly $250,000 for his neutral advice, and wrote a report that was so lacking in objectivity that this was commented on both by Judge Gray and in a Dec. 2000 New Zealand tribunal where Evans's lack of dispassionate comment, despite the legal duty of expert witnesses to remain neutral between the parties, was expressly criticised by the judges, who noted: "Professor Orchard cited examples in the Evans Report of exaggeration, omission, minimisation and misrepresentation." For examples of such egregious lies by this Cambridge professor in his BBC article, point at the magic link on the left. We await his book with interest. . .
BBC History Magazine, January 2000
'When David Irving sued the American academic Deborah Lipstadt and her publisher Penguin Books over her claim that he was a 'Holocaust denier', RICHARD J EVANS (left), Professor of Modern History at Cambridge University and a member of BBC History Magazine's advisory panel, was called as an expert witness. In his new book, Telling Lies About Hitler: The Holocaust, History and the David Irving Trial, Evans argues that Lipstadt's victory and Irving's very public disgrace was a vindication of historical scholarship.'
"IT is not often that historians become involved in libel cases, which is probably a good thing. We may be a quarrelsome lot, but on the whole we fight our battles in the decent obscurity of learned journals. But a case that came before the High Court in London in January 2000 provided an exception to this general rule. The British writer David Irving, author of some 30 books, mostly about the leading figures of Hitler's Third Reich, sued an American academic, Deborah Lipstadt, for the remarks she made about him in her book Denying the Holocaust: The Growing Assault on Truth and Memory. The resulting trial, which ran for three months, from 11 January to 11 April 000, generated public interest not just in Britain, but around the world. What was it about and how did it concern history and historians?
Lipstadt's book was published in 1993. In it, she identified a thin but continuous and, she claimed, broadening stream of thought, mostly in the United States, that 'denied the Holocaust' by claiming that here were never any gas chambers, that there was no Nazi programme of exterminating Jews, and that at most a few hundred thousand were killed during the Second World War, not the six million commonly claimed.
The 'deniers' claimed that the evidence for these generally accepted historical facts had all been concocted, mainly by Jews themselves, to provide support for bogus restitution claims and for the State of Israel. But Lipstadt argued that it was the 'deniers' who concocted the evidence. They purported to be historians, but in reality they were anti-Semitic, right-wing extremists, whose work bore no resemblance to genuine scholarship. Although she devoted no more than six pages of her 300-page book to him, he mentioned Irving as one of the 'deniers', and since he was a freelance author who made his living mainly from writing and speaking about historical topics, it was not surprising that he objected.
Lipstadt's book was first published in the US, but Irving waited until Penguin Books brought it out in Britain before he sued. This was because the English libel law favours the plaintiff more than any other law in the world. In the US a libel plaintiff has to prove malice on the part of the defendant, who can claim public interest as a defence, and the First Amendment to the Constitution creates a strong presumption in favour of free speech. In England, by contrast, the plaintiff has to prove nothing. Indeed, the court assumes that a defamatory statement is a falsehood unless proven otherwise. Lipstadt and Penguin could hardly deny that her statements about Irving were defamatory. So their only option was to prove that they were true.
This was where I came in. The issues at stake in the allegation that Irving falsified history were complicated, involving both the interpretation of German documents and the theoretical distinction between historical objectivity and historical falsehood. For these reasons, both sides agreed to dispense with a jury and have the case heard by a single judge. For the same reasons, the defence asked me to provide an expert witness report on Irving's work, using my knowledge and experience as a specialist on modern German history and the author of In Defence of History, a book on historical objectivity.
As an expert witness, my first duty was to the court, and the defence was not entitled in any way to influence what I wrote, though if it did not like my conclusions it always had the option of refusing to present my report to the court. I was not very familiar with Irving's work, so I had no idea what I would find. I certainly had plenty to go on: not only Irving's books, but also a mass of material supplied by him under the rules of 'Discovery', which lay down that each side in a libel case has to disclose to the other in advance every scrap of material that might be of relevance to the issues at stake. This included several hundred videotapes and audiocassettes of his speeches, which proved invaluable, since Irving often expressed himself in less guarded form in his speeches than in his books.
With the aid of two research assistants I looked closely at Irving's claim that there was a 'chain of documents' that proved, he claimed, that Hitler always intervened to protect the Jews when he found out that nasty things were happening to them. I took each document in turn, checking Irving's presentation against the original sources in the archives or in printed editions such as the Goebbels Diaries or Himmler's appointments calendar and phone log. What I found was astonishing. In every case, Irving had manipulated or twisted the document almost out of recognition.
When Himmler had recorded a phone call with his deputy Reinhard Heydrich on 30 November 1941, for instance, in which he had ordered 'Jew transport from Berlin: No Liquidation,' Irving had repeatedly claimed that Himmler had been told to make the order by Hitler, even after Irving had been made aware of the fact that Himmler's appointments diary showed he did not meet Hitler that day until some time after talking to Heydrich on the phone. Irving had also claimed that the order referred to all Jews everywhere, although it clearly only involved a single train-load from Berlin.
I found dozens of similar falsifications. Moreover, from quite early on in his career Irving had claimed that there was no systematic Nazi extermination of the Jews, and since the late 1980's he had made numerous statements denying the existence of the gas chambers and minimising the numbers of Jews killed. It was also clear enough, therefore, that he was a 'Holocaust denier' on any reasonable definition of the term.
After presenting the report in July 1999, so that Irving would have ample time to study it, I went to the court in February 2000 to be cross-examined by Irving, who was conducting his own case. Some commentators complained that a law court was no place to settle historical issues. But in fact it turned out to be rather a good place. In a normal academic seminar you only have an hour or two to thrash out the issues; in the High Court I spent 28 hours in the witness box, and Irving had previously spent the best part of three weeks there under cross-examination from Richard Rampton QC, leading counsel for the defence. The rules of evidence in a civil case only required a balance of probabilities, not proof beyond all reasonable doubt. And what was being debated was not, of course, history itself, but the way that Irving dealt with the evidence: a fine distinction, but one central to the case. On one issue after another, Irving was forced to withdraw his earlier claims when confronted with hard evidence on matters such as the gassing of hundreds of thousands of Jews, or the systematic and centrally directed nature of the mass shootings of hundreds of thousands more behind the Eastern Front.
There was enough material in Irving's diary to show that he was a racist and an anti-Semite, who had associations with many neo-fascists and political extremists in a variety of countries, notably Germany and the US. Indeed he had been fined by a German court under laws that made Holocaust denial illegal, and banned from entering the country. It came as no surprise when the judge, in a masterly 350-page judgment, found for the defence on virtually all the instances of falsification which had been uncovered, and rejected Irving's libel suit and claim for damages.
Amid the welter of comment that came after the verdict, two aspects of the trial's significance stood out. The first was that it was a victory for free speech. Irving had tried to get Lipstadt's book withdrawn and pulped, and obtain an undertaking from her publishers not to publish similar things about him again. That attack on freedom of speech had been repulsed.
Secondly, the verdict was a victory for historical scholarship. Nobody was going to stop Irving from continuing to say and write what he wanted to. But if the verdict had any effect, it would be to deny him credibility, especially with the popular readership to whom he addressed his work. The ability of real historians to achieve genuine knowledge about the past on the basis of the documentary record had been vindicated.
In the 1961 Jerusalem trial of Adolf Eichmann, the director of operations of Hitler's 'Final Solution of the Jewish Question', survivors had been the main witnesses. The 2000 London trial of Irving versus Lipstadt and Penguin Books dealt with the issues as if there were no survivors around to tell the tale. It was for this reason that The Daily Telegraph rightly concluded at the end of the trial that 'the Irving case has done for the new century what the Nuremberg tribunals or the Eichmann trial did for earlier generations'.
Richard Evans was one of the expert witnesses hired by Prof Deborah Lipstadt for her defence of David Irving's libel action.