“This trial,” said the plaintiff, David Irving, “is not really about what happened in the Holocaust.” Opposing counsel agreed: “The essence of the case is Mr. Irving’s honesty and integrity.” The presiding judge was happy to maintain the pretext: “It is not for me to form, still less for me to express, an opinion about what happened. That is a task for historians.”
But from opening arguments to the decision handed down here on April 11, there was not a single day in the libel trial of David Irving v. Penguin Books and Deborah Lipstadt when History was absent from the courtroom. The case was, at its heart, a dispute about not just the facts of the Holocaust but the meaning of history and the politics of memory.
Irving, a British writer specializing in World War II, claimed that Lipstadt had libeled him by describing him as “one of the most dangerous spokespersons for Holocaust denial” in her 1993 book Denying the Holocaust. When the trial started in January, Irving repeated his claim that the gas chambers at Auschwitz were fakes and that Hitler consistently opposed the extermination of the Jews. Irving argued that since his views on the fate of the Jews during the Nazi era were true, it was libelous to describe him as a Holocaust denier.
Judge Charles Gray’s 335-page decision left no room for doubt. Going even farther than Lipstadt, the Judge branded Irving a “racist” and an “anti-Semite” who had “deliberately skewed the evidence to bring it into line with his political beliefs.” On the specific–and highly contentious–question of what happened at Auschwitz, the judge was equally clear: “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.”
To reach those conclusions Gray had to form judgments about evidence: how much weight to give to eyewitness accounts, when does a document mean what it says (for example Hitler’s many references to the Vernichtung–the annihilation–of the Jews) and when does a document mean the opposite of what it says (Hitler’s equally frequent references to Auswanderung–emigration)? He also had to couch his findings in a language that the public could understand and accept. And finally the judge had to take a view on the proper relationship, if any, between politics and history.
On the questions of evidence the judge’s performance was exemplary. But his reasoned arguments are unlikely to make an impact on either the Holocaust deniers or their opponents. As the latest incarnation of a paranoid tradition, Holocaust deniers are by nature impervious to fact. For them, Irving’s defeat merely confirms his martyrdom; the scale of his undoing merely proves the power of the forces arrayed against them.
For America’s growing Holocaust industry, too, victory over Irving is more likely to act as a stimulus than a restraint. In her statement after the trial, Lipstadt described the struggle against denial as unending. Let me be clear: Lipstadt deserved to win her case. But the encouragement that her victory will give to some of the groups supporting her, such as the Anti-Defamation League, in their efforts to police public discussion not only of the Holocaust but of US and Israeli policies, is no cause for celebration.
Before the trial began, Gray told me he was worried, because “judges aren’t historians.” But in his ruling, the judge repeatedly referred to what an “objective historian” might do. He was right the first time. Historians aren’t–shouldn’t be–judges either. Irving’s problem isn’t detachment, it is dishonesty. The Holocaust has always had a political as well as a historical meaning; in America, that meaning has shifted a great deal from the days when the “Song of the Warsaw Ghetto” was sung in memory of the Rosenbergs and conservatives saw a Communist behind every mention of the 6 million. If the ruling in Irving v. Lipstadt causes that meaning to be honestly debated, then truth and history will really have had their day in court.