The Holocaust Trial
Wearing a $500 bulletproof vest and a red hard hat with the inscription “Freedom of Speech,” a stocky, partly bald man walked out of Toronto’s district courthouse last week after his conviction for knowingly spreading false news likely to cause racial hatred or religious intolerance. Ernst Zundel was smiling, even though a jury of 10 men and two women had just found his most fiercely held convictions to be dangerous lies. The 46year-old publisher and graphic artist had to pay bail of $1,000 to gain temporary freedom; his business suffered severely during his seven-week trial, and he faces a sentence of up to two years in prison. But as hard-hatted supporters and reporters crowded around him, he flashed a defiant victory sign. Said Zundel: “It cost me $40,000 in lost work—but I got $1 million worth of publicity for my cause. It was well worth it.”
Certainly Zundel has gained worldwide attention for his claim that the Holocaust—a universally accepted historical fact—was a hoax designed by Jews to win German reparations for Israel. And Jews and gentiles alike argued over the merits of bringing Zundel to trial at all, because it gave him a platform for his views. Said Toronto lawyer Clayton Ruby: “What have you gained if the process of proving the news false gives him the chance to spread his crazy views?”
Harm: Even the verdict on the two charges was not clear-cut. The jury found that by distributing a pamphlet dealing with the Holocaust—entitled Did Six Million Really Die?—Zundel had wilfully caused harm to racial harmony. But in a second pamphlet Zundel argued that Zionists, Communists, Freemasons and bankers were engaged in a conspiracy to rule the world—and was found not guilty by a jury burdened with the awesome task of trying to distinguish between expressing opinions and distorting facts.
Despite the verdict, which he may appeal, many Jews objected to a legal process that subjected survivors of Nazi death camps to extensive cross-examination about their experiences. Added Ruby: “As a Jew, I want to know why we were compelled to prove that we were tortured and killed.” The outcome of the
trial also disturbed another Toronto lawyer, constitutional expert Morris Manning, who said that although he disagrees with Zundel, the conviction raised questions about the right to criticize a historical event. Said Manning: “If a person cannot do so, then freedom of speech is meaningless.” But 56-year-old Sabina Citron, a survivor of the Auschwitz and Bergen-Belsen concentration camps, said that justice had been served by the exposure and conviction of a man she described as a racist. Declared Citron: “The trial caused a lot of anguish and hard work—but it had to be done.” Slur: Citron is a member of the Canadian Holocaust Remembrance Association, a group which broke away from the Canadian Jewish Congress in 1978 to pursue pedlars of hate literature more vigorously. Five years later Citron laid a private charge against Zundel.
The society’s militant approach has caused deep divisions within the Jewish community, and Citron says that Jews who opposed laying charges against Zundel had a “ga'■ lut mentality”—a Hebrew term describing those who are subservient to persecutors. But Rabbi Gunther Plaut of Toronto’s Holy Blossom Temple disagreed, saying that Zundel’s views had now been given “the legitimacy of a hearing in court.” Plaut added that reacting against attempts to minimize the Holocaust was similar to someone trying to deny a slur suggesting that his mother was a prostitute.
Declared Plaut: “You raise the question that maybe she really was.
Suddenly the obscene has become a matter of free speech.”
The most dramatic and, to many people, the most appalling moments in the trial came in the first weeks, when assistant Crown Attorney Peter Griffiths called Holocaust survivors to testify about their experiences in concentration camps. But observers may have been equally shocked at the aggressive cross-examination by defence lawyer Douglas Christie (page 49). One reason: the Victoria lawyer relentlessly challenged witnesses about their suffering, called some of them liars and argued with others about the combustion properties of human flesh and the color of bodies poisoned by Zyklon-B gas.
Arnold Friedman, 46, for one, a former inmate of the Auschwitz and Birkenau camps, recalled his experiences in detail. Testifying in a 60-seat courtroom in which concentration camp survivors had to sit beside Zundel supporters, Friedman said that inmates who jostled each other in food lines were in danger of being shot by guards or ripped apart by trained dogs. Then he described the flames and smoke that belched from crematoria chimneys at the camp soon after the arrival of new trainloads of prisoners. But in his cross-examination, Christie said that the smell of what Friedman said was burning flesh proba-
bly came from a nearby iron foundry. In the end, Christie succeeded in casting doubt on Friedman’s testimony when he forced him to acknowledge that the flames he saw might not have issued from human flesh.
Corpses: But equally vigorous crossexamination by the defence attorney could not alter the testimony of Holocaust survivor Rudolf Vrba. He is now a professor at the University of British Columbia in Vancouver and he spent two years at Auschwitz before he managed to escape. He said that he remembers seeing burning pits filled with bones, and that prisoners assigned to work on mounds of heaped-up corpses
routinely wrenched gold fillings from the mouths of the dead. Christie accused Vrba of lying, and said it was impossible to dig pits in the marshy ground near the camp and that the prisoners whom Vrba had described as walking to a death by gassing before their bodies were burned in the crematoria were, instead, probably being taken to showers. Replied Vrba: “I saw 1,765,000 people walk into the space before my eyes, knowing that space is absolutely closed with no road out. And nobody came out, except as smoke. Would you perhaps suggest that they are still there?”
Later, Christie spent three days in a laborious cross-examination of Raul Hilberg, a University of Vermont professor who testified that after 37 years of study he had concluded that more than five million Jews died during the Holocaust. Christie challenged the sources of Hilberg’s research and accused him of relying on madmen and liars to create a selective account of history. Then Christie called 20 witnesses, many of whom disputed the existence of concentration camp gas chambers. Robert Faurisson, a professor at the University of Lyons, France, himself convicted in 1981 by a French court of libel, racial defamation and falsifying history, argued that “the gas chamber charge is a fraud.” And Ditlieb Felderer, a Swedish propagandist convicted in his native country of fomenting racial hatred, said he has seen secret areas at Auschwitz that contain a swimming pool, dance hall and sauna where prisoners enjoyed themselves.
Scrutiny: The courtroom battle made the Holocaust itself subject to scrutiny and argument. Such observers as Irwin Cotier, a law professor at Montreal’s McGill University, said that Griffiths should have asked district court Judge Hugh Locke to take judicial notice of the Holocaust at the beginning of the trial. If Locke had done so, said Cotier, he would have then instructed the jurors that the Holocaust was an event of such accepted historical importance that they must simply accept it as fact.
Griffith did in fact ask the judge to make that ruling—but only after he had already called concentration camp survivors and experts on the Nazi slaughter as witnesses. As a result the judge refused the request, saying that it would be unfair without allowing the defence to respond to the Crown’s case. As the trial neared its end Locke told the jury that “the evidence before you is overwhelming that the Holocaust did occur.” Declared Cotier: “The Crown made a tactical error. Otherwise we might have been spared this obscenity of having the Holocaust on trial.”
Before Citron turned to the courts she had tried other methods to stop Zundel from spreading racist opinions. In 1981
she succeeded in having Zundel’s mailing privileges suspended under laws prohibiting the distribution of hate mail. The ban was enforced after police investigators who had seized neo-Nazi material during a massive raid in Stuttgart, West Germany, described Zundel as one of the world’s largest distributors of hate literature.
Then, when a postal review board ruled that it could not permanently ban the privileges, and restored them, Cit-
ron turned to Section 281 of the Criminal Code—Canada’s so-called hate law —which since 1970 has prohibited the promotion of hatred “against any identifiable group.” But the section does not provide for private charges, and no prosecutor has yet managed to secure a conviction using it. Indeed, when Roy McMurtry was Ontario’s attorney general he refused to lay any charges under Section 281 because he was apparently not convinced that his department could win. But when Citron pressed charges under Section 177 of the code McMurtry let the case proceed.
Blunder: As part of the code dealing with public nuisances, Section 177 was not designed to deal with hate literature and it makes no mention of racial intolerance. It has proved as difficult to enforce as the hate law itself, with only two convictions —one overturned by a higher court. And many jurists objected to its use in the Zundel case because it required the prosecution to prove that Zundel knew the information he was distributing was false. According to
prominent Toronto criminal lawyer Edward Greenspan, bringing charges under Section 177 “was a major blunder, an unforgivable error on McMurtry’s part.” Greenspan added that Section 177 required the Crown to prove that the Holocaust had occurred—and gave Christie the opportunity to examine survivors on the validity of their experiences in concentration camps. He added:
“This would have been an entirely different trial under Section 281.2. The use of Section 177 for hate propaganda is wrong.”
University of Toronto history professor Jacques Kornberg, who teaches a course on the Holocaust, added, “The charge hangs on whether or not the person had an honest belief in what he was publishing, and it has the potential for catching a lot of other nonconformist ideas in its net.” And despite his successful prosecution, even Griffiths agreed that the difficulties of Section 177 make its usefulness questionable. Said Griffiths: “I cannot see this section being used regularly.”
Throughout the trial Christie argued that the charge brought against his cli-
ent stripped away his constitutional right of freedom of speech. Judge Locke’s charge to the jury made it clear that he did not agree. But many others acknowledged their concern about the threat to freedom implicit in such a trial. Although Alan Borovoy, general counsel for the Canadian Civil Liberties Association, criticized “the colossal obscenity of portraying Nazi death camps
as Jewish country clubs,” he added: “Freedom of speech is often most important when it creates discontent or disquiet. How in the world can the blunt criminal law distinguish destructive hatred from constructive tension?” Borovoy said that the outcome of the Zundel case might encourage prosecutions for other allegations of historical distortion. Asked Borovoy: “Could Catholic sympathizers be prosecuted for denying the enormity of the Inquisition?” Visible: Three cases pending under Section 281 of the Criminal Code may intensify the debate. Two deal with hate propaganda allegedly directed against blacks and French Canadians but the most visible will involve Christie again. Next month he will defend former Eck-
ville, Alta., mayor and high school teacher James Keegstra. Keegstra lost his teaching position in 1982 for telling his students that the Holocaust was a hoax and for promoting theories of a world Jewish conspiracy. His trial will be highly publicized and—like Zundel’s —could increase pressure on Ottawa to change the controversial hate laws.
As Zundel moved to and from the
courtroom surrounded by supporters and media representatives, he clearly basked in the public attention. He even published his own account of the legal battles, distributing two issues of the Holocaust Show Trial News, in which he wrote that the jury trying him included “11 Caucasians and one Oriental man.” He also told his readers that he had been able “to play the Zionists like one might a Jew’s harp.”
Raids: The Holocaust Show Trial News is the latest of thousands of publications by Zundel’s Samisdat Publishing Co., a company whose name comes from the Russian word for self-published underground books. Indeed, in the aftermath of the police raids in Stuttgart, the Canadian Jewish Con-
gress charged that Samisdat was the world’s largest exporter of anti-Semitic material to West Germany—a claim which Zundel does not deny. Instead he has boasted that he mails “tens of thousands” of letters each year to dozens of countries, including about 5,000 media outlets in North America. And Jurgen Neumann, 34, a Canadian of German descent who has worked closely with
Zundel since 1975, credits that activity with bringing about the current trial. Neumann told Maclean 's: “The best way to kill an idea is silence. We needled our antagonists for so long that they finally did what we would have liked them to do all along.”
As a result, Zundel has had his voice amplified. His ideas, announcements of his personal practices (a professed pacifist) and idols (including Adolf Hitler) have become common knowledge to Canadians in recent weeks. Among the details: he was born in 1939 on a Black Forest farm in southwestern Germany, where his mother still lives. As well, he has four sisters living in Germany and a brother practising law in California. Zundel immigrated to Canada in 1958
and soon after met his future wife, Janick, a French Canadian, in a Toronto English-language class. The couple had two sons, and although Zundel and his wife separated in 1975 he says they are still on good terms. During the trial his former wife offered to cook for the friends and supporters visiting Zundel.
Many of those supporters have offered to help defray an estimated $100,000 in legal bills, but Zundel, who has an excellent reputation as a photo retoucher and graphic artist, said that although his legal battles have harmed
his business, he still earned enough to pay for the trial. Since he began freelancing in 1961 his clients have included the Ontario Milk Marketing Board, Wonder-Bra, Henry Birks and Sons Ltd. and Maclean's. Said Zundel: “I’m perfectly capable of financing the case. I can make as much money as a good attorney.”
UFOs: Zundel’s immersion in the trial left him no time to pursue other interests which range from participating in politics to writing books about unidentified flying objects (UFOs). Six of the 12 books he has written and published deal with UFOs, and he claims to have sold more than 700 of his watercolor and oil paintings. The high point of his political career was a run for the leadership of the federal Liberal party in 1968, a position eventually won by then-Justice Minister Pierre Trudeau. Zundel says that he relishes having annoyed the Liberals as a fringe candidate, particularly because no one bothered to question him closely enough to discover that he was not a Canadian citizen. Said
Zundel: “No one ever asked me. I could not believe it.”
As a landed immigrant with a criminal record, Zundel could be deported to his native Germany if he loses his appeal. But, he said, “Why be a secondclass Canadian when I can be a firstclass German?” The West German government refused to renew his passport in 1982, and Zundel said that being sent back to his homeland would be like being “sentenced to paradise.” He added, “I can’t be punished by being sent to a place where there are comforts, money and supporters.”
Bomb: Meanwhile, Zundel apparently has no intention of abandoning his adopted country or his east-central Toronto house, which he shares with a fluctuating group of six or seven employees and supporters. After a bomb exploded in a garage behind the house last fall, Zundel fortified the three-storey, 14-room Victorian structure with wrought iron and concrete barriers, wire-mesh window coverings and a sophisticated 24-hour closed-circuit-TV surveillance system. Now, its owner calls the house his “defence centre.”
Throughout the trial Zundel kept in touch by walkie-talkie with the enlarged group of 20 supporters taking turns manning the surveillance system. It sweeps over the entrance to the main foyer, which is decorated with examples of Zundel’s graphic art. The third floor is cluttered with almost 6,000 books, and the basement is dominated by a 15-yearold Rex rotary printing press, jammed between a bunk bed and a washing machine. Among the decorations on the main and second floors are models, built by Zundel, of the Auschwitz and Birkenau concentration camps, along with a model flying saucer bearing a Second World War Luftwaffe emblem.
During his trial Zundel announced that after exposing the “Holocaust hoax” he intended to launch a campaign to overturn the verdicts of the 1945-46 Nuremberg war-crimes trials. First, he said, he will appeal the jury’s verdict, although he claims that it has not dramatically affected him. “My writing will be a little more cautious in the future,” he said, “and a little restraint might not be a bad idea. I went into the trial being perceived as a crackpot. I come out of it as a man who certainly has cause to question the things I question.” But his trial has raised far more disturbing questions than it has answered, and they are certain to result in even greater turmoil among lawmakers and, indeed, all people of resolute social conscience in Canada and beyond.
With Paul Berton, Robert Block and Cy Jamison in Toronto and Dan Burke in Montreal.