Holocaust Denial on Trial, Skeleton Argument of the Claimant (long): Electronic Edition, by Adrian Davies

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Hitler's personal knowledge of atrocities committed against the Jews during WWII

47.Though anathemized by Lipstadt as a "Holocaust denier," Irving has never denied and has indeed repeatedly and forcefully stated in books and public lectures (1) that the Nazis and their allies committed systematic mass murder of Jews on a chilling scale, especially in the Baltic states, in Byelorussia and the Ukraine, but also in Russia proper, in Poland, and in other occupied countries in eastern Europe, or (2) that many mass killings were latterly carried out as a matter of policy on the personal orders of Himmler and Heydrich, though (3) particularly in the early stages of Operation Barbarossa (the invasion of the Soviet Union in June, 1941), mass killings were carried out not only by German forces,   but also by local, non-German, anti-Semitic elements, especially in the Ukraine and in the Baltic states, acting independently of Himmler and Heydrich for reasons of their own.
48.Two examples are:--
  • (i) Irving has broadcast on Australian radio that, from June 1941 onwards, over a million Jews were shot on the Eastern Front. A transcript of that broadcast was in evidence.
  • (ii) In his book Hitler's War, (1977) Irving writes that by 1943:--
    "The increasing brutalisation of the war showed itself in many ways. . . Himmler revealed to his SS Gruppenfuhrer (generals) on October 4, and to the Party's Gauleiters on October 6 that by the end of 1943 the last Jews in occupied Europe would have been exterminated."
49.The key issue under (1) is therefore the extent of Hitler's personal knowledge of and responsibility for the systematic mass murder of Jews, the historicity of which Irving does not dispute.
50.Irving's case (summarized by Gray J at 5.137, 5.138 and finally at 13.30) is that there is an important "chain of documents" which shows that, so far from having ordered the biological annihilation of European Jewry" (5.94) Hitler intervened on occasion to check atrocities against the Jews, in accordance with his policy of deferring a "solution to the Jewish problem" until after WWII.
 
51.Irving does not dispute that there is also a contrary line implicating Hitler. Having weighed the evidence as a professional historian, he prefers the first line of documents to the second, and is, he says, amply justified in so doing.
52.It was not however sufficient in order for the Defendants to make good their plea of justification to persuade the Court that, on the balance of probabilities, and in the light of the materials now available to scholars, the second line is to be preferred to the first.
53.The distinction to be drawn is closely akin to that between the differing tests for negligence and deceit. As Gray J rightly observes at 13.3, "the issue. . . is Irving's treatment of the available evidence," and at 13.4, "Irving rightly stresses that the Defendants have accused him of deliberately perverting the evidence."
54.As to Gray J's findings under (1):--
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