The Holocaust on Trial: The Case of Ernst Zündel

By Robert Lenski

This book is a condensation of the Second Holocaust Trial that played in Canada in 1988. It is a popularized version of trial proceedings and court documents, written for easy mainstream reading, highlighting a crucial, highly complicated legal battle for freedom of speech and assembly.

Although the book was published before the highest court of Canada threw out the False News Law as unconstitutional, the reader gets the flavor of this battle that hasn't ended yet because the forces that opposed Ernst Zündel from the start are gearing up to move in stronger "Hate Law" statutes to prevent him from having his say.

World-wide, his supporters are watching this battle. Below is the author's introduction to this important volume pertaining to the trial in 1988:

Just about everyone has heard that Adolf Hitler's National Socialist regime exterminated six million Jews during the Second World War.

What is not well known is that, for some years now, a small but persistent group of people who call themselves "revisionists" has been disputing the seemingly indisputable. They insist that the Holocaust - the systematic extermination of six million Jews, most of them in gas chambers - is a myth. These people don't get much media attention and, when they do, are usually dismissed as cranks or anti-Semites.

Canada's best-known and most flamboyant revisionist is a gregarious and determined immigrant from Germany's Black Forest region named Ernst Zündel. For publishing a slim booklet entitled "Did Six Million Really Die?" he was twice put on trial and convicted on a charge of spreading "false news."

Regardless of what one might think of Zündel and his views, much of the evidence presented by his witnesses and defense team in the Toronto "Holocaust trial" of 1988 cannot be dismissed out of hand. The purpose of this book is to give it the fair hearing it deserves.

This book tells the story of Zündel's 1988 trial - an event that raises disturbing questions about our understanding of what is perhaps the most emotionally charged chapter of history, and about the proper limits of free speech in a democratic society.

It is important to understand that those who reject the Holocaust story do not dispute that large numbers of Jews were deported to concentration camps and ghettos, and that many Jews were killed during the Second World War. Every serious revisionist acknowledges that Europe's Jews suffered a catastrophe during the Hitler years. They were ruthlessly uprooted, taken from their homes, and herded into horribly overcrowded ghettos and miserable concentration camps, where many of them perished. Their property and their rights were taken away.

While conceding all of this, the men and women who testified on Zündel's behalf gave their reasons for rejecting the idea that there was a German program to exterminate Europe's Jews, and for disbelieving the stories about mass killings in gas chambers.

For example, America's leading expert on gas chambers, a Boston engineer named Fred Leuchter, testified on April 20 and 21, 1988, about his detailed on-site investigation of the "gassing facilities" at Auschwitz, Birkenau (Auschwitz II) and Maidanek (Lublin) - supposedly three of Hitler's most notorious extermination centers. Leuchter told the court that the alleged "gas chambers" at these camps could not possibly have been used to kill people.

Leuchter and a second witness, Ivan Lagace, also stated that the crematoria at Auschwitz, Birkenau and Maidanek could never have been used to dispose of anything like the number of bodies alleged in the standard Holocaust literature. Lagace operates the state-of-the-art crematoria used by Calgary, Canada.

Professor Robert Faurisson, the leading French revisionist historian, wrote of Leuchter's meticulous testimony: "I am convinced that during those two days I was an eyewitness to the death of the gas chamber myth."

And best-selling British historian David Irving called Leuchter's technical report on his investigation a "shattering" document which hardened his growing conviction that portions of the orthodox Holocaust story are open to grave doubt.

Some students of the two Zündel trials are more interested in their implications for freedom of speech. This became a lively issue in Canada in 1970, when the Parliament, ignoring warnings from many leading editors and publishers, enacted a new section of the Criminal Code which makes it an indictable offense to "promote hatred against any identifiable group."

Identifiable groups, as it turned out, do not include such allegedly "secure" groups as whites, Christians, Anglo-Saxons and Germans. The result, which was foreseen by heads wiser than those prevailing in Ottawa, has been the creation of two classes of Canadian citizens, with widely differing rights. This development resembles what was brought about by "Affirmative Action" or racial quota rulings by American courts.

Actually, Zündel was never prosecuted under the "group hatred" act, though other Canadians have been. Those interested in putting him out of business resorted instead to an obscure and anachronistic section of the Criminal Code, which states, "Everyone who willfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offense and is liable to imprisonment for two years."

The "false news" which Zündel was charged with publishing was a 28-page revisionist booklet called "Did Six Million Really Die?" by an Englishman, Richard Verrall, under the pen name of Richard E. Harwood. It first appeared in Britain in 1974 and subsequently enjoyed a large underground circulation and numerous translations. Zündel's Canadian edition added four pages of introductory and concluding remarks by himself.

The Harwood pamphlet is an early and hastily written revisionist work containing a number of fairly obvious mistakes. To Sabina Citron, an activist with the "Canadian Holocaust Remembrance Association," bringing a private complaint against it as "false news," it seemed like the surest means of prevailing against Zündel. Bringing charges under the "group hatred" act requires the consent of the provincial attorney general, which was not forthcoming, quite possibly because Harwood contains nothing "hateful".

The origin of the "false news" law is an old English crime called De Scandalis Magnatum, which first appeared in the statute books in 1275 and wasn't abolished by English law makers until 1888. In the thirteenth century the great nobles felt they were being slandered by peasants who went around reciting scurrilous ballads and rhymes. Although this was the only outlet the common man had to protest his fate, the nobility viewed it as intolerable. When Canada's existing Criminal Code was enacted in 1892, the crime of "false news" somehow slipped into the law books.

Prosecution under this holdover from feudal times have been extremely rare. In 1907, a merchant in Alberta of American origin was indicted for claiming in an advertisement that Canada was unfriendly to his former countrymen. That was obviously a wicked lie, the jury reasoned, and convicted him. In 1951 and 1970, prosecution under Section 177 (then Section 166) resulted in acquittals.

Citron brought her private complaint against Zündel on November 18, 1983. The province of Ontario, under constant prodding by Jewish groups, later took over the case.

What followed, in early 1985, was widely called the Great Holocaust Trial. Though Zündel was convicted and sentenced to 15 months in prison, he proclaimed a victory of sorts, which the Canadian media grudgingly conceded. His 22 defense witnesses, including half a dozen leading revisionists, succeeded in bringing scholarly criticism of the Holocaust to a daily audience of millions. Canada's reporters and their editors and publishers, bound by traditional standards of fairness and legal restrictions on coverage of a trial in progress, described the revisionist testimony each day with relative even-handedness. When the trial finally ended, Canadian Jews erupted with volleys of scathing abuse for the nation's news media. They had, it was said, given "a parade of kooks from around the world" a serious hearing they did not deserve.

The full implications of this orchestrated denunciation, which quickly blossomed into media-haranguing conferences and "workshops," did not become obvious until January 1987, when a five-judge panel of the Ontario Court of Appeal (The Supreme Court of Ontario), citing errors of law committed during the first Zündel trial, overturned his conviction. After the Supreme Court of Canada upheld the panel's decision, a retrial was ordered by Ontario Attorney General Ian Scott. At this point, most of Canada's major Jewish organizations began reminding the media of their alleged sins in the 1985 trial. They demanded that the "kooks" and "hate mongers" not be given a second hearing. Jewish survivors of the Holocaust and their descendants would not be able to bear the "trauma" of seeing more headlines that questioned some of their testimony and travails.

The second Zündel trial, in early 1988, received substantially less publicity than the first. Jewish "sensitivities" were permitted to count for more than the right of other citizens to be informed. The censors prevailed.

Editors, challenged by angry letters and phone calls to explain their negligence, fell back on the stock argument that the Zündel case was "news only the first time around." The record clearly shows otherwise. The revisionist testimony in the second trial, much of it by new witnesses, was even more unsettling than that offered in the first. Further, the editors' own past comments regarding the extraordinary pressure to which they had been subjected could not be retracted.

Those who believe in selective freedom of speech had it both ways. Zündel was prosecuted at their instigation, yet the general press was nearly silent, and only the "Canadian Jewish News," covered the story in detail. Only Jews were able to avoid being kept in the dark. So much for the concern for "traumatized Jewish survivors."

Reconvicted and resentenced, Zündel proclaimed another victory. Though censorship kept many Canadians from hearing about the often stunning testimony on his behalf, the transcript of the trial remained as a permanent public record.

After the trial, Fred Leuchter made two simple observations which suggest that Zündel had reason to celebrate. A major argument against Zündel's prosecution had been the question of how anyone could presume to know that he published the Harwood pamphlet "knowing" it to be false. Is it possible for anyone, judge or jury, to look inside a man's mind? The forensic investigation of Auschwitz, Birkenau and Maidenek, made with a five-person team utilizing the appropriate physical, chemical and biological knowledge, was undertaken entirely at Zündel's instigation and expense. Had Zündel actually doubted his own claim that the gas chamber story is mistaken, would he have dreamed of hiring America's foremost authority on gas chambers - a man firmly convinced of the standard Holocaust story when he began - to test the reality of the gassings? Leuchter marveled at Zündel's sincerity and self-assurance in hiring him, and at the bad faith of a judge and jury who, to the end, refused to concede Zündel's motives.

Leuchter's second point was his reply to a revisionist who had asked him: "Can't the other side hire its 'own' engineer to study the alleged gassing sites and make an opposite set of declarations under oath?" Leuchter's reply was instantaneous: "Any engineer who would do such a thing would be committing professional suicide."

The laws of physics and chemistry are not suspended for Germans, not even Nazi Germans. This point has been made before by revisionists, among whom engineers are prominent, in refuting such fables as Elie Wiesel's "geysers of blood" appearing over Jewish mass graves. It was made by Leuchter with regard to the gas chambers. Nature is of a piece, and the gassing stories simply don't fit.

Canada today is a nation at a crossroads. Powerful elites have decreed that a lengthening list of books, magazines and pamphlets dealing with a widening range of political, religious and historical topics must be made inaccessible to ordinary citizens. This censorship comes at a time when the nation faces unprecedented decisions concerning its political, economic and cultural future.

One decision confronting Canadians is whether or not the Holocaust should pay a central role in their public life. As in the United States, Holocaust study, ceremony and worship are on a phenomenal upswing, with semi-official liturgies actively promoted by government agencies and private corporations alike. In his book, "Propaganda," the French social philosopher Jacques Ellud warned of the contaminating impact which action can have on knowledge and belief:

Action makes propaganda's effect irreversible. He who acts in obedience to propaganda can never go back. He is now obliged to believe in that propaganda because of his past action. He is obliged to receive from it his justification and authority, without which his action will seem to him absurd or unjust, which would be intolerable. He is obliged to continue to adhere in the direction indicated by propaganda, for actions demand more actions.

Thoughtful revisionists have asked: Can a governor or mayor or chief executive officer who has wept in public about "the gassings" on nine occasions ever go back on his belief?

Ellul would be doubtful. Activity, he said, carried to a certain point, makes belief superfluous.

Canada today is a land where most expressions of Holocaust revisionism have been banned. The censors are unwilling to meet the dissidents in appropriate forums on anything like even ground. Rather than addressing the problems raised by the Leuchters and the Lagaces, the Faurissons and Irvings, they have forced revisionism into a costly legal battle for survival.

Toronto publisher Ernst Zündel has been and remains the focus of this extraordinary Canadian fight, which may be a harbinger for the United States. One thing is certain. However the lawyers and judges may decide the Zündel case and the case of revisionism, the engineers, technicians and allied historians will feel free to withhold support, and to convene a "court" of their own.

 

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