Holocaust Denial on Trial, Appeal Judgment: Electronic Edition, by Lord Justice Pill

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32. A striking feature of this aspect of the case was that evidence and submissions as to what happened at Auschwitz included a consideration of views currently held, that is held at the time of the trial. It is striking because of the emphasis otherwise placed on behalf of the applicant on the contents of his books being assessed on the basis of evidence available at the time of publication. Having made that submission strongly, Mr Davies accepts that, in relation to Auschwitz, the respondents can succeed if they establish that, at any point in time, including the time of the trial, the applicant has adopted a position so contrary to the evidence as to be perverse. On this issue, evidence was given by both sides on the basis of evidence currently available. It is accepted that the applicant modified his position in the course of the trial.
33. The judge's conclusion (13.91) was:
"Having considered the various arguments advanced by Irving to assail the effect of the convergent evidence relied on by the Defendants, it is my conclusion that no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews."
34. Mr Davies submits that, having set out the correct test at paragraphs 13.3 and 13.4, the judge set out the wrong test at paragraph 13.70 when considering this issue:
"In these circumstances the central question which, as it appears to me, falls to be determined is whether or not the evidence supports the Defendants' contention that the number of deaths ran into hundreds of thousands or whether Irving is right when he claims that the killing by gas was on a modest scale."
By using the expression "whether Irving is right", the judge has wrongly stated the issue and wrongly reversed the burden of proof, it is submitted. The conclusion reached flows from that misdirection. Secondly, submits Mr Davies, the conclusion at 13.91 is not justified by the findings at 13.71 to 13.90.
35. Until the publication of the Leuchter report, the applicant had expressed no view, submits Mr Davies, on Auschwitz. He was a specialist on the military campaigns of the Third Reich and not on extermination. Mr Fred Leuchter was expert in execution procedures including the administration of gas and it was what the applicant read in his report in 1988 that convinced him that there was no truth in the claim that Jews met their death in large numbers in gas chambers at Auschwitz. The judge set out Leuchter's findings in detail (7.79 to 7.89). Professor van Pelt dismissed the Leuchter report as flawed and unreliable. As the judge noted in his conclusions on Leuchter (13.79 and 13.80), the applicant agreed that the Leuchter report was fundamentally flawed. He accepted that a false assumption by Leuchter vitiated Leuchter's conclusion and the applicant conceded the existence of many other factual errors in the report.
36. The applicant's case is not that the Leuchter report can now be considered reliable but that it had appeared reliable when brought to the applicant's attention in 1988 and that the applicant was acting honestly in relying on it at that time. Moreover, on the evidence available at the time of trial, it was still an issue for legitimate historical debate whether Jews had been systematically gassed at Auschwitz. The evidence for the proposition that there was mass gassing is nowhere near so strong, it is submitted, that it is perverse for the applicant to entertain doubts about it. The applicant's position is that there were no gassings at Auschwitz 1 and only random gassings at Auschwitz 2. There remain good grounds for scepticism as to what had happened at Auschwitz, it is submitted.
37. On the applicant's behalf, Mr Davies made a sustained attack upon the reliability of the evidence which led the judge to his conclusion (13.91) already quoted. There were   serious doubts about the reliability of Olëre's drawings which showed, for example, the impossible event of flames 90 ft long emerging from a chimney. They could not be treated as corroborating Tauber's account. The subsequent statements of Höss, the camp commandant, could not be relied on because of obvious exaggeration. Broad was a man of flexible allegiances in that he had served first the Gestapo, and after the war the British and was unreliable. Professor van Pelt had accepted that the building at Auschwitz 1 now visited by tourists had not been used as a gas chamber during the war.
38. The judge had treated as corroboration (13.77) what could not properly so be treated and the applicant was entitled to his doubts about the eye-witness evidence. Mr Davies refers to the applicant's challenge at the trial to the evidence of Professor van Pelt that the single air photograph he had selected for use at the trial "very clearly showed that there are four introduction deliveries in morgue No 1". (Day 10, p 26, line 12). (There was an issue as to whether gas could have been introduced into the building.) It was but a single photograph, of unknown date and Professor van Pelt accepted that it was impossible to say what kind of shadow the objects cast. On the issue of the existence of chimneys protruding through the roof, the judge himself found the photographic evidence hard to interpret (13.73). He acknowledged (13.83) that the argument that there was no evidence of the presence of chimneys or ducts in the roof of morgue 1 at crematorium 2 "deserves to be taken seriously".
39. Mr Davies also relies, as did the applicant at the trial, on the absence of references to gassing in the captured records of deaths at Auschwitz. Moreover, reports from the camp to Berlin, in cypher, did not mention gassing. The cypher had, unknown to the German authorities, been broken by the British and reports were decoded at Bletchley Park. Secrecy was not maintained with respect to other methods of mass murder and there was even gloating over some atrocities, for example, by the Einsatzgruppen. A British document prepared by a senior Foreign Office official demonstrated that as late as August 1943 the Office had no evidence of mass executions in gas chambers. Had gassing occurred at Auschwitz it was surprising that there were no better records of it. The applicant was entitled to his genuine doubt as to events at Auschwitz. The applicant accepted that a very large number of people had died at Auschwitz, by other methods of killing and as a result of disease. His refusal to accept the systematic use of gas chambers to kill large numbers of Jews could not be described on the evidence as perverse.
40. That the judge considered carefully the evidence and the submissions of the applicant at the trial is clear:
"13.73 I recognise the force of many of Irving's comments upon some of those categories. He is right to point out that contemporaneous documents, such as drawings, plans, correspondence with contractors and the like, yield little clear evidence of the existence of gas chambers designed to kill humans. Such isolated references to the use of gas are to be found amongst these documents can be explained by the need to fumigate clothes so as to reduce the incidence of diseases such as typhus. The quantities of Zyklon-B delivered to the camp may arguably be explained by the need to fumigate   clothes and other objects. It is also correct that one of the most compromising documents namely Bischoff's letter of 28 June 1943 setting out the number of cadavers capable of being burnt in the incinerators, has a number of curious features which raise the possibility that it is not authentic. In addition, the photographic evidence for the existence of chimneys protruding through the roof of morgue 1 at crematorium 2 is, I accept, hard to interpret.
13.74 Similarly Irving had some valid comments to make about the various accounts given by survivors of the camp and by camp officials. Some of those accounts were given in evidence at the post-war trials. The possibility exists that some of these witnesses invented some or even all of the experiences which they describe. Irving suggested the possibility of cross-pollination, by which he meant the possibility that witnesses may have repeated and even embellished the (invented) accounts of other witnesses with the consequence that a corpus of false testimony is built up. Irving pointed out that parts of some of the accounts of some of the witnesses are obviously wrong or (like some of Olëre's drawings) clearly exaggerated. He suggested various motives why witnesses might have given false accounts, such as greed and resentment (in the case of survivors) and fear and the wish to ingratiate themselves with their captors (in the case of camp officials). Van Pelt accepted that these possibilities exist. I agree".
(We were told that the author of the letter of 28 June 1943 was Bischoff and not Muller as stated in the judgment handed down. We were also told that a correction was made at the time of handing-down.)
41. The contentions of the parties, and the evidence relied on, are fully set out both in section (v) of the judgment and in section (xiii). The judge summarised the respondents' case (13.73) as being "that there exists what van Pelt described as a "convergence" of evidence which is to the ordinary, dispassionate mind overwhelming that hundreds of thousands of Jews were systematically gassed to death at Auschwitz."
42. The judge stated (13.72) that it appeared to him to "be important to keep well in mind the diversity of the categories [of evidence] and the extent to which those categories are mutually corroborative". The judge set out a summary of the documentary evidence and the eye-witness evidence. He stated (13.75) that "it appears to me that the cumulative effect of the documentary evidence for the genocidal operation of gas chambers at Auschwitz is considerable". As to the eye-witness evidence, he stated that while he acknowledged "that reliability of the eye-witness evidence is variable, what is to me striking about that category of evidence is the similarity of the accounts and the extent to which they are consistent with the documentary evidence". The judge concluded:  
"13.78 My conclusion is that the various categories of evidence do 'converge' in the manner suggested by the Defendants. I accept their contention which I have summarised in paragraph 7.75 above. My overall assessment of the totality of the evidence that Jews were killed in large numbers in the gas chambers at Auschwitz is that it would require exceedingly powerful reasons to reject it. Irving has argued that such reasons do exist."
43. Following that provisional conclusion, the judge set out the reasons relied on by the applicant, the Leuchter report, the alleged absence of holes in the roof of morgue 1 of crematorium 2, the case that gas chambers were required for fumigation purposes or (on re-design) to serve as air-raid shelters and the arguments relating to "death books", decrypts and coke consumption. In relation to the holes in the roof, the judge concluded (13.83) that "an objective historian, taking account of all the evidence, would conclude that the apparent absence of evidence of holes in the roof of morgue at crematorium 2 falls far short of being a good reason for rejecting the cumulative effect of the evidence on which the Defendants rely". In relation to the use of gas chambers for other purposes, he concluded (13.86) that he cannot accept "that this argument would come anywhere near displacing the conclusion to be drawn from the convergent evidence relied on by the Defendants for their contentions as to the object of the redesign work". The other points did not impress the judge and he added that he did not "consider that they would have impressed a dispassionate historian either". In relation to "death books", the judge referred to the unchallenged evidence of a large number of witnesses that "the books record only the deaths of those who were formally registered as inmates of the camp. The Jews who were selected on arrival to die were taken straight to the gas chambers without being registered. One would not therefore expect to find mention of the cause of death of those Jews in the death books". (13.88).
44. In relation to camp reports, the judge concluded:
"13.89 Reports were sent regularly from the camp to Berlin in cypher. They were intercepted and decoded at Bletchley Park. Although these reports often gave the cause of death, they did not mention gassing. In my judgment there are two reasons why little significance is to be attached to this: the first is that there was a strict rule of secrecy about the gassing and the second is that, like the death books, these reports, related to registered inmates only".
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accessed 12 March 2013