The British press paid careful attention to the case and the verdict. A number drew parallels with the Eichmann trial. The Daily Telegraph declared in its lead editorial, “This trial has done for the new century what the Nuremberg tribunals or the Eichmann trial did for earlier generations.” Newspaper hyperbole aside, there was something else binding the two events. A few weeks earlier, the trials had been linked in a more overt fashion. During his trial, Eichmann wrote a memoir. After Eichmann’s execution, Prime Minister David Ben-Gurion agreed, at the suggestion of prosecutor Gideon Hausner, to seal the manuscript in Israel’s National Archives. Hausner contended that Eichmann had been given extensive opportunity to present his case, and therefore Israel had no further obligation to publicize his version of events. In the late 1990s, one of Eichmann’s sons requested the release of the manuscript. A debate ensued as to what should be done. Some Israeli historians wanted a German research institute to annotate Eichmann’s false assertions prior to publication. Other historians contended that Israel should just release the manuscript and allow the normal scholarly process to take its course. In the spirit of much else in the Middle East, nothing happened. During my trial, one of my former students suggested I look at the manuscript to determine if it contained anything that might be useful to my defense team. Our objective was to prove that Irving’s claims about the Holocaust were lies. It was not to prove that the Holocaust happened. However, we thought that a direct statement from Eichmann’s manuscript about the mass murders would, at the least, demonstrate that Irving denied the very things that those who had engaged in the killings freely admitted. Though it was a long shot, I asked my lawyer to request that Israel release the memoir. A few weeks later, I received a call from retired Israeli High Court Justice Gabriel Bach, who had served as Hausner’s first assistant during the Eichmann trial. Bach told me that the current attorney general had consulted with a high-ranking group of jurists and historians and they had unanimously agreed that my request be honored. Even the prime minister had weighed in on the matter. The next day, my barrister, Richard Rampton, arrived in court carrying a small yellow computer disk with an electronic version of Eichmann’s manuscript, which had just been downloaded to him. When Rampton, who as barrister had the task of pleading or litigating the case in court, introduced the contents of the disk as evidence, it was the first time the memoir was in the public’s hand since Eichmann wrote it.
When I returned to my hotel that night, a hard copy of the manuscript was waiting for me. As I looked through it, I found myself comparing what I was experiencing to what had happened in Jerusalem in 1961. The importance of the Eichmann trial dwarfed mine. Irving cannot be compared to Eichmann in terms of either historical significance or the damage he caused to the Jewish people. Yet there were certain parallels between the two events. One of these men helped wiped out one-third of world Jewry. The second had dedicated himself to denying the truth of this. Neither man started his career expressing overt anti-Semitism. Both men seemed to me to have either conveniently adopted that ignominious mantle or let it emerge from where it had always been when it served their purposes. In the newly released memoir, Eichmann expressed himself as an inveterate Nazi and anti-Semite. In contrast to claims that would be made by Hannah Arendt that he did not really understand the enterprise in which he was involved, the memoir reveals a man who considered his Nazi leaders to be his “idols” and who was fully committed to their goals.
Most important, both The State of Israel v. Adolf Eichmann and David Irving v. Penguin UK and Deborah Lipstadt addressed phenomena that had a common source: anti-Semitism. Without centuries of this persistent hatred, the Third Reich would have found it impossible to mobilize hundreds of thousands of people to despise, scapegoat, and ultimately participate in the murder of European Jewry. (Could they have convinced countless people to take similar action against bicycle riders or redheads?) Holocaust denial would be impossible but for centuries of anti-Semitism. Deniers build their pseudo-arguments on traditional anti-Semitic stereotypes and imagery. They contend that Jews created the myth of the Holocaust in order to bilk the Germans out of billions of dollars and ensure the establishment of Israel. Once again the devious Jews have harmed innocent multitudes—Germans and Palestinians in particular—for the sake of their own financial and political ends. To someone nurtured by the soil of anti-Semitism, this makes perfect sense.
Yet, in a number of important ways, these two trials were diametric opposites. The most obvious contrast, of course, is that in Jerusalem the Nazi was the defendant. In London it was the Holocaust historian who was on trial. There is, however, an even more striking contrast. In Jerusalem testimony by the victims constituted the central element of the prosecution’s case. Attorney General Hausner was determined that their voices should be heard in all their intensity. It was this decision by him, however questionable from a legal perspective, that gave survivors, such as the women I encountered at the meeting about displaying the hair in the Holocaust Museum, an iconic, almost mythic authority. In contrast, at my trial, we did not use survivors as witnesses. Though they inundated us with offers to testify, we eschewed their testimony for strategic reasons. Survivors would have constituted “witnesses of fact,” attesting to the facts of what had happened. Because the Holocaust has the dubious distinction of being the best-documented genocide in history, we considered such testimony unnecessary. We did not want to suggest to the court that we needed witnesses of fact in order to “prove” the event. From the outset, one of my greatest fears was that my trial might become a “Did the Holocaust happen?” exchange. This is what had occurred during the trial of Holocaust denier Zündel. The court was transformed into a site for a debate over whether the Holocaust had happened. Zündel’s lawyer challenged Holocaust survivors on the most minute details of their assertions. Holocaust historians found themselves having to defend the most basic fact. Historical nuance was mangled. Deniers testified for the defense and made all sorts of outlandish and historically unsubstantiated claims about the Final Solution. The newspapers and other media outlets reported the courtroom debates over whether there were gas chambers, whether Auschwitz had recreational facilities for the inmates, and other such historical absurdities. They treated deniers’ claims as fact. Matters became so chaotic that the jury could not reach a decision and the case had to be retried. (At the retrial, the judge took “judicial notice” of the Holocaust, and this nightmare was avoided.) Had this occurred at my trial, I would have considered any victory I might have achieved to be Pyrrhic in nature. I knew we could demonstrate that every one of Irving’s claims was bogus. We could show that Irving and, by extension, all deniers built their cases on inventions, distortions, and outright lies, and that the so-called evidence that they offered to prove their claims failed to do so. I worried, however, about a Zündel trial redux. Would labyrinthine courtroom exchanges with Irving about gas chambers and mass killings suggest to the general public that the existence of the Holocaust was something to be debated? I had read the transcript of Zündel’s first trial. Distressed at how poorly both the Holocaust and history had fared in that courtroom, I lost sleep trying to imagine how the judge—there was no jury—would rule in mine. I feared that the miasma of denial might lead him to render a “split” decision. He might find for me but would use an “on the one hand, yet on the other hand” approach. I feared he might be befuddled by Irving’s authoritative demeanor. I wanted an unequivocal and precise judgment. I believed the public had to be shown that denial was not an “other side,” an “opinion,” or a “view.” My object was to demonstrate that it was a tissue of lies with no historical standing at all. My fears were for naught. The judge used the following terms to describe Irving’s claims about the Holocaust: “perverts,” “distorts,” “misleading,” “unjustified,” “travesty,” “reprehensible,” and “unreal.” Furthermore, the judge found that Irving’s “falsification of the historical record was deliberate and … motivated by a desire to present events in a ma
nner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence.”5 Our victory was sweeping. History had had its day in court and emerged triumphant.
One other thing linked these two events. I leave it for last because it discomfited me throughout the trial and continues to do so to this day. Ben-Gurion justified holding the trial in Israel because he believed that Israel, as the Jewish state, had the right to speak in the name of those who had been killed as Jews. Hausner had begun his opening statement by asserting that standing by his side were six million victims. When survivors heard of my coming legal battle, they sent me notes, letters, and copies of their books. All came with a similar message: “This is my story. This is what happened to me and to my family. This is what David Irving and his cohorts wish to deny. This is the history you must protect. You must stand up for us.” I had never thought of what was facing me in such global and momentous terms. I saw myself as fighting a pseudo-historian who also engaged in overt racist and anti-Semitic expression. If I represented anyone, it was historians who wished to practice their craft and were willing to fight those who would abuse it for nefarious ends. However, as my trial approached, I found a larger meaning thrust upon it and upon me by survivors who were worried and frightened. I tried to reassure them that, even if I did not prevail, their history would be safe. They brushed aside my assurances. One survivor told me that he had attended a session of the Eichmann trial and hoped to come to mine. “Then the Nazi was in the dock. Now it is backwards.” Now I see, as I look back, that this perhaps was for them a moment that meant the Eichmann trial and all it represented was ongoing. That the English High Court would be the venue for a Holocaust denier to spew lies and fabrications about things that had happened to them and had obliterated their families and the life they once knew seemed surrealistic at best.
Ironically, at the same time that they were investing what was facing me with such personal import, I was also receiving a very different message from other sources, particularly intellectuals and scholars in the field. Holocaust denial, they insisted, was the equivalent of flat-earth theory and, as such, was worthy of nothing more than utter ridicule. I should not, these skeptics insisted, take Irving’s charges seriously. I was “silly,” one leading historian opined, to invest so much time, effort, and resources into fighting them. “Just ignore it” was his sage advice. Though I agreed with these scholars about the total absurdity of denial, I explained that if I followed their advice, Irving would win by default. Because the British justice system placed the burden of proof on me, my failure to fight would result in a ruling that I was indeed guilty of libeling David Irving by calling him a denier. Irving could then legitimately interpret such a ruling as having concluded that his version of the Holocaust—no plan to kill the Jews, no gas chambers, no Hitler involvement—was legitimate. “So what?” the historian continued. “No one will believe it anyway.” From my then budding awareness of the Internet, I knew he was wrong. There were many people who, though not fully accepting deniers’ claims, might wonder if there was not some justification to Irving’s positions.
Many British Jews did not want me to fight and pressured me to find some way “to settle this whole matter.” Irving, they were convinced, would “win,” irrespective of the outcome. “Even if he loses,” one told me, “he will wrest so much publicity from the matter that he will end up ahead.” Anthony Julius, my solicitor, the lawyer who prepared the case, developed the forensic strategy, and then turned it over to Richard Rampton to litigate in court, asked those who counseled me to settle what they thought my bottom line should be: Two million Jews? Three million? One death camp? Two or three? (Most dropped the matter at that point.) I juxtaposed these suggestions that I ignore the matter with the messages I was receiving from survivors. I could not look them in the eye and say, “When given the chance to stand up to this complete distortion of your history, I chose not to fight.” These skeptics’ arguments notwithstanding, I became convinced that I owed the survivors a full-fledged fight against those who would assault their history.
If I had any lingering doubts about my decision, they were erased for me on the first day of the trial. In front of a packed courtroom, Irving had spoken for three hours. Predicting a great victory for himself, he had repeatedly denied the Holocaust. I seethed with anger as I listened to the historical distortions and the anti-Semitism I found riddling his speech. When the session ended and we emerged from the courtroom, both of us were surrounded by reporters. He happily engaged them. I, however, was stymied. Because I was not giving testimony during the trial, my lawyers had asked me not to speak to the press. They did not want to antagonize the judge and give Irving room to say to him, “Lipstadt won’t give testimony in your courtroom, but she was speaking on the BBC last night.” I turned to my lawyer, who was standing next to me, and insisted that I should “give them something.” He stood his ground: “Say nothing.” As we debated the matter back and forth, an elderly woman worked her way through the crowd, approached me, touched me on the arm, and then rolled up the sleeve of her sweater. Pointing to the number tattooed on her arm, she said: “You are our witness.” I forgot about talking to the press.
I never would have brought a matter of Holocaust denial to a court, but once I had been forced to enter that arena I had no choice but to respond with all my abilities. Though I did not represent the survivors, I felt their presence in that courtroom. They filled the public gallery. They gave me lists of the names of their murdered relatives. And when I prevailed, they embraced me, laughed, and cried with me. Though I’d never intended to do so, I ended up fighting for them.
In a larger sense, these two choruses of voices—those of the victims for whom evil is still present and the fight is still in some sense ongoing; and those who believe the battle has been won and that anti-Semitic horrors are the province of either the past or the “crazies” who are better ignored—still constitute the foundation upon which we build our understanding of Eichmann, the judgment against him, and his sentencing. Although some look back and see a trial of momentous importance because it brought to justice one of the key players in the Final Solution, others dismiss both the trial and Eichmann himself as things of little importance. They charge that Israel aggrandized the matter for political ends. They dismiss Eichmann as simply a transportation “specialist” and fault Israel for using the trial for Zionist ends. They claim he was a bureaucratic “clown,” who really did not understand what he was doing. These differences of opinion about the Eichmann trial may well be metonyms for attitudes toward and perceptions of contemporary anti-Semitism. Some find the overt anti-Semitism of Holocaust deniers the ranting of idiots who are best ignored. Others take these comments quite seriously and see a dire and existential threat to Jewish well-being. They see a Holocaust-denying president of a large country, one that is poised to have nuclear weapons, occupying the podium of a world forum that was founded in the wake of the Final Solution with a mandate to stop genocide. They hear him deny the Final Solution and threaten the existence of the Jewish state. When they react strongly, they are cautioned by commentators and policy makers that they are overreacting or misunderstanding his charges. For them the issues that were adjudicated in Jerusalem are neither dead nor academic.
Historians often insist that they come to their research with a tabula rasa, that they judge each situation on its merits and do not let other matters shape their perceptions. In fact, no matter how much they may deny it, their personal experiences constitute facets on the prism through which their view of past events is refracted. For the sake of her readers and herself, a historian must acknowledge their presence and try to ensure that they clarify, rather than cloud, her understanding. And so, with my own encounter with history, the law, the study of the Holocaust, and raw anti-Semitism as a backdrop, I began to explore what happened in Jerusalem five decades earlier.
The Eichmann Trial
1
On the afternoon of
May 23, 1960, members of Israel’s Knesset were gathered for what promised to be a run-of-the-mill budget debate. Then Prime Minister David Ben-Gurion rose, walked to the podium, and, speaking with what The New York Times described as “dramatic understatement,” began a two-sentence announcement that sent shock waves around the globe:
I have to inform the Knesset that a short time ago one of the great Nazi war criminals, Adolf Eichmann, the man responsible together with the Nazi leaders for what they called the Final Solution, which is the annihilation of six million European Jews, was discovered by the Israel security services. Adolf Eichmann is already under arrest in Israel and will be placed on trial shortly under the terms of the law for the trial of Nazis and their collaborators.1
Providing no further details, Ben-Gurion departed, leaving behind a stupefied parliament. After a few moments of silence—estimates differ radically—the room erupted. People wept, hugged, and marveled: Eichmann b’yadenu, Eichmann is in our hands. On the street, similar scenes ensued. People crowded around radios and newspaper kiosks seeking details. The historian Tom Segev compared the emotions that swept the country to what had happened twelve years earlier. “Israelis had not known, since the Declaration of Independence, so deep a sense of national unity.” Israel’s half-million survivors had a more alloyed response. Warsaw Ghetto fighter Yitzhak (Antek) Zuckerman voiced these contradictory emotions: “Joy and sadness have alighted upon us, entwined with each other.” This strange mix of emotions was exemplified by the verse from Psalm 94 which the editors of the profoundly secular newspaper Maariv chose to headline the story: “El nekamot hofea,” “The Mighty God to Whom Vengeance Belongs Has Appeared.”2
The Eichmann Trial Page 2
