Irving v. Lipstadt


Holocaust Denial on Trial, Trial Transcripts, Day 18: Electronic Edition

Pages 171 - 175 of 181

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    My Lord, I must intervene again. I think
 1at all. What we have been struggling to reconstruct is
 2Mr Irving's state of mind.
 3 MR JUSTICE GRAY:     That true is, but is he not entitled to make
 4the point to Professor Evans that one of the problems all
 5historians have dealing, for example, with the issue of
 6Hitler's knowledge of a genocidal gas extermination
 7programme, that actually the documentary, leave aside the
 8other material, is very sparse?
 9 MR RAMPTON:     That is a perfectly fair point, but I do believe
10Mr Irving is -- that is a completely fair point and that
11is what the question I think started out as being ----
12 MR JUSTICE GRAY:     I think it did, yes.
13 MR RAMPTON:     But it turned into what I have repeatedly
14perceived to be a misconception of what this case is
15about. This is not some historical tribunal of enquiry.
16 MR JUSTICE GRAY:     No. I think that does need to be said quite
17often, I agree.
18 MR RAMPTON:     It does.
19 MR IRVING:     It should not be a tribunal of historical enquiry,
20my Lord. On November 4th I did plead with your Lordship
21not to allow it to become an enquiry into what happened,
22because my submission was that this was not what that case
23was about.
24 MR JUSTICE GRAY:     I think everybody is agreed about that.
25 MR IRVING:     I think that now Mr Rampton realizes that
26particular bear skin has floated away down the river, he

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 1is now trying to get back on to the other track again.
 2 MR JUSTICE GRAY:     I am sure I follow what is meant by that.
 3 MR IRVING:     I translated the German.
 4 MR JUSTICE GRAY:     What, bear skins in German?
 5 MR IRVING:     Yes.
 6 MR RAMPTON:     Yes, but I still do not understand it.
 7 MR JUSTICE GRAY:     We will not struggle to. We will get on.
 8Next question.
 9 MR IRVING:     I only have two more points to make, my Lord, in
10that case. This is at the foot of page 35, near the foot
11of it, paragraph 2.4.1. You are talking about evidence
12given after the event in the form of testimony in a public
13trial is relatively sound. Unless Mr Rampton has an
14objection, this is again quite a key issue.
15 MR JUSTICE GRAY:     That is a perfectly fair point.
16 MR IRVING:     Do you maintain, therefore, that what is stated in
17any tribunal, regardless of how long after the war, is
19 A. [Professor Richard John Evans]     No. I have put the word "relatively" in there, and then
20of course I add, well, two sentences either side of that.
21The first is, the greater in distance the time of events
22to which they relate the more critically they must be
23examined, I think that is true.
24 Q. [Mr Irving]     This is a secondary source, is it not?
25 A. [Professor Richard John Evans]     I mean sources after the event, sources which are produced
26afterwards and rely on memory or the work of other

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 1historians, and secondly that this court testimony must of
 2course be assessed by an historian as to the purpose or
 3purposes with which it was given. I am saying you have to
 4regard it with caution.
 5 Q. [Mr Irving]     Yes.
 6 A. [Professor Richard John Evans]     As you do all material. It is, of course, the greater in
 7distance in time the events the more critically one has to
 9 Q. [Mr Irving]     I am only going to deal with this very briefly, my Lord,
10and this is the question: Do you ever apply your mind,
11witness, to the question of what pressures of a
12psychological nature or other nature may have been applied
13to a witness to make statements on which you have relied?
14 A. [Professor Richard John Evans]     I think you try to put your mind inside the mind of the
15person giving the evidence, and you ask yourself what
16interest they would have in saying one thing or another.
17So, prima facie, it would seem obvious that a former Nazi
18who was deeply implicated in the crimes of Nazism would
19have an interest in trying to exculpate himself in giving
20evidence. In terms of what pressures were put on
21somebody, then I think you have to look for evidence of
23 Q. [Mr Irving]     Can I stop you there. You say a former Nazi might try to
24exculpate himself. Would there be a temptation in a
25Fuhrer state to exculpate himself by saying that he was
26acting on higher orders, regardless of whether or not it

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 1was true?
 2 A. [Professor Richard John Evans]     We are talking about a different period now. We are
 3talking about during the Third Reich?
 4 Q. [Mr Irving]     Yes, that is what we are interested in here.
 5 MR JUSTICE GRAY:     No, I think trials after the war of Nazi
 7 MR IRVING:     Trials after the war, but suppose a General or an
 8SS Obergruppenfuhrer like Karl Wolf or someone like that
 9put on trial, would there be a temptation, hypothetically,
10for him to say: "Well, I did not do this on my own
11initiative. I was told it was the Fuhrer's orders", just
12for an example? Would there be a temptation do you think?
13 A. [Professor Richard John Evans]     No, I think that would be difficult, because the classic
14defence "I was only obeying orders" has not been one that
15has been widely accepted by courts.
16 Q. [Mr Irving]     But it was specifically excluded at Nuremberg, was it
17not? It was in the permitted at Nuremberg, the high
18orders defence?
19 A. [Professor Richard John Evans]     Yes.
20 Q. [Mr Irving]     What about in the German courts, was it permitted?
21 A. [Professor Richard John Evans]     Let us take the Frankfurt Auschwitz trials of 1963 to 4,
22and there was a very extensive affidavit there by
23historians which tried to sketch out the possibilities
24there were for evading orders, and indeed historians and
25law courts have always been exercised by the problems
26posed by that particular defence. On the whole I do not

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 1think it is one that would recommend itself to people. It
 2is far better to say that you did not know about it than
 3simply, yes, you did know but you were only obeying
 5 Q. [Mr Irving]     How reliable would human memory be after 20 years, do you
 7 A. [Professor Richard John Evans]     I am not a psychologist. I think that one has to be one
 8has to be sceptical and critical about what people say,
 9but you cannot dismiss it out of hand. Many of the
10interviews which you conducted 20 or 30 years after the
11events involved, I think that one has to be very critical
12and very sceptical about what these people are saying and
13ask why they were saying it and what interest they had in
14taking the line they were taking. But that does not mean
15one dismisses it out of hand. You go through the normal
16historical procedures of comparing what they say with the
17documentation that is available, preferable contemporary
19 Q. [Mr Irving]     My Lord, I have now reached the end of my prepared
20questions. I had prepared to ask further questions today
21but that was on the area you were not going to allow.
22 MR JUSTICE GRAY:     Yes, that was on bundle E?
23 MR IRVING:     On bundle E, yes.
24 MR JUSTICE GRAY:     Yes.
25 MR IRVING:     You have promised me additional time for dealing
26with Professor Evans.

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