The libel trial of David Irving against Deborah Lipstadt and Penguin Books, heard at the Royal Courts of Justice in London between 11 January and 11 March 2000, was the most exhaustive forensic engagement between the historical profession and the Holocaust denial movement ever conducted. Justice Charles Gray’s 333-page judgment of 11 April 2000 is the standard reference document on the historical method as applied to denier claims. Its findings were unequivocal: the Holocaust had happened, the gas chambers at Auschwitz had been used for the homicidal gassing of approximately one million people, and David Irving had deliberately falsified the historical record in pursuit of his political ends.
The writ
Lipstadt’s book Denying the Holocaust: The Growing Assault on Truth and Memory had been published by the Free Press in the United States in 1993 and by Penguin Books in Britain shortly afterwards. The book described David Irving as “one of the most dangerous spokespersons for Holocaust denial” and characterised his historical work as politically motivated falsification.
Irving issued his writ in September 1996. He sued Lipstadt and Penguin in the High Court in London. The choice of jurisdiction was deliberate. English libel law as it then stood placed the burden of proof on the defendant: the defendants had to prove that the allegedly defamatory statements were substantially true. The plaintiff did not have to prove they were false. The English jurisdiction was therefore much more favourable to a libel claimant than the American jurisdiction, where Lipstadt would have had the protection of the First Amendment and the New York Times v. Sullivan public-figure standard.
The defence team
Anthony Julius, the principal solicitor at Mishcon de Reya, became Lipstadt’s solicitor. Julius had been Diana, Princess of Wales’s solicitor in her divorce proceedings; he had separately published a literary-critical study of T. S. Eliot’s antisemitism (T. S. Eliot, Anti-Semitism, and Literary Form, 1995). Richard Rampton QC of 5 Raymond Buildings was retained as lead counsel; Heather Rogers (later Heather Rogers QC) was the junior counsel.
The expert witnesses on the historical questions were assembled over the three and a half years between the writ and the trial. The principal experts were Robert Jan van Pelt of the University of Waterloo (the architectural historian of Auschwitz) and Richard J. Evans of the University of Cambridge (the historian of the Third Reich). Christopher Browning of the University of North Carolina, Peter Longerich of Royal Holloway, and Hajo Funke of the Free University of Berlin gave evidence on specific topics. The combined expert reports ran to several thousand pages and were prepared at the defence’s expense, with funding raised by Lipstadt and Penguin from a coalition of supporters that included Steven Spielberg.
The defence strategy
The defence strategy was settled in 1998. The defence would not litigate whether the Holocaust had happened. Lipstadt’s book had taken the historical reality of the Holocaust as established fact, in line with the academic consensus, and the defence would not allow Irving to redirect the case into a forum in which the basic historical questions were tried as if they were genuinely open.
What the defence would litigate was Irving’s historiography. They would take Irving’s books apart paragraph by paragraph against the original German archives, demonstrating that he had consistently mistranslated, selectively quoted, misdated, and where convenient invented his sources. The strategic decision was that the case would stand or fall on whether Irving was, on the documentary evidence, an honest historian or a deliberate falsifier. The strategy required enormous archival work but kept the trial focused on Irving’s specific conduct rather than on the abstract reality of the Holocaust.
The trial
The trial ran from 11 January to 11 March 2000 in Court 73 of the Royal Courts of Justice on the Strand. Both sides agreed to dispense with a jury; the documentary material was too voluminous and technical for jury assessment. Justice Charles Gray sat alone.
Irving represented himself; no specialist libel chambers had been willing to take his case. Lipstadt did not give evidence. The defence had decided that putting her on the stand would only allow Irving to redirect the trial to her credibility rather than his historiography. She sat in court for the duration of the trial in silence.
The defence case was presented through the expert witnesses. Van Pelt gave evidence over six days on the Auschwitz gas chambers, taking the court through the Topf and Sons construction-office archive, the surviving physical remains, and the contemporary testimony. Evans gave evidence over twelve days on Irving’s published claims, walking the court through specific instances of mistranslation, misrepresentation and falsification. Browning, Longerich and Funke gave evidence on the broader historical and political context.
Irving cross-examined each of the experts, often at length. The cross-examinations were not, in the assessment of subsequent commentators, successful. Irving could not shake any of the experts on the substance. His own evidence-in-chief, given over several days, opened him to extensive cross-examination by Rampton, in which Rampton walked Irving through a long series of his own published statements and demanded that he account for the documentary record. Irving’s responses were inconsistent, at times evasive, and at times revealing.
The judgment
Justice Gray handed down judgment on 11 April 2000. It ran to 333 pages. The central findings on Irving’s historiography occupied nearly 200 pages of detailed examination of his published claims against the original sources. The findings were unambiguous:
I have found that it is incontrovertible that Irving qualifies as a Holocaust denier. He is anti-Semitic and racist, and he associates with right-wing extremists who promote neo-Nazism. For the reasons I have given, I have concluded that the Defendants’ plea of justification succeeds.
The substantive findings on the historical questions included that the Hitler regime had had a policy of exterminating European Jewry, that the Auschwitz gas chambers had been used for the homicidal gassing of approximately one million people (the figure van Pelt had given in evidence), and that the Holocaust had occurred substantially as the historical profession had described it.
The findings on Irving’s conduct included that he had deliberately falsified the historical record, that his motives in doing so were ideological, that his denier statements at IHR conferences and in the Leuchter Report foreword were consistent with his historiography rather than incidental to it, and that his attempts at the trial to reframe his published statements as misunderstandings or innocent errors were unsupported by the documentary evidence.
The aftermath
Irving was ordered to pay the defendants’ costs, estimated at approximately £2 million. He attempted to appeal; the Court of Appeal refused permission to appeal in July 2001. He declared himself bankrupt in 2002. His personal library was auctioned to defray the costs.
The judgment had two consequences for the historical profession. First, it ended Irving’s standing as a serious historian. No mainstream press has published him since 2000. The standard mainstream-press treatment of Irving since the trial has been to give him as a documented case of historical falsification.
Second, the judgment provided the most authoritative single statement, outside the academic literature, that the Holocaust had happened and that the principal denier claims were untrue. The 333-page text is publicly available, has been cited in subsequent denier prosecutions in several European jurisdictions, and is the document the historical profession holds against the denier movement.
The Evans and van Pelt expert reports were published in 2001 and 2002 as Lying About Hitler and The Case for Auschwitz. Lipstadt’s account, History on Trial: My Day in Court with David Irving, was published in 2005. The 2016 film Denial, directed by Mick Jackson and adapted by David Hare from Lipstadt’s book, brought the trial to a wider public audience. The film was tightly adherent to the documentary record; it did not invent material for dramatic effect.
See also
- David Irving
- Deborah Lipstadt
- Ordinary People Who Became Killers, Reserve Police Battalion 101
- Adolf Hitler
- The Leuchter Report Proved No Gas Chambers
Sources
- Justice Charles Gray, Judgment in Irving v. Penguin Books and Lipstadt, Royal Courts of Justice, 11 April 2000, [2000] EWHC QB 115
- Court of Appeal of England and Wales, Irving v. Penguin Books and Lipstadt, judgment of 20 July 2001, refusing permission to appeal
- Deborah Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory, Free Press, 1993
- Deborah Lipstadt, History on Trial: My Day in Court with David Irving, Ecco, 2005
- Richard J. Evans, Lying About Hitler: History, Holocaust, and the David Irving Trial, Basic Books, 2001 (the Evans expert report for the trial)
- Robert Jan van Pelt, The Case for Auschwitz: Evidence from the Irving Trial, Indiana University Press, 2002 (the van Pelt expert report for the trial)
- D. D. Guttenplan, The Holocaust on Trial, W. W. Norton, 2001
- Anthony Julius, Trials of the Diaspora: A History of Anti-Semitism in England, Oxford University Press, 2010, ch. 6
- Christopher Browning, expert report submitted to the Royal Courts of Justice in Irving v. Penguin Books and Lipstadt, 2000
- Peter Longerich, expert report submitted to the Royal Courts of Justice in Irving v. Penguin Books and Lipstadt, 2000
- Mick Jackson (dir.) and David Hare (writer), Denial, Bleecker Street and BBC Films, 2016