deschene005.html = CRITIQUE of Deschenes Report (90kb)
CRITIQUE by Will Zuzak, May 1987
of the Report of the Commission of Inquiry on War Criminals
by the Honourable Jules Deschenes, Commissioner
30 December 1986
Table of Contents
I-1 FINDINGS AND RECOMMENDATIONS
I-2 The Commission
I-3 The Factual Background
I-4 The Concept of War Criminals
I-6 The Mengele Affair
I-7 The Legal Remedies
(2) Prosecution in Canada
(3) Denaturalization and Deportation
I-8 War Criminals in Canada?
I-M Decision Concerning Foreign Evidence
Although the following critique of the Deschenes Commission Report has been written as a working paper for the Information and Anti-Defamation Commission of the Ukrainian Canadian Committee, Montreal Branch, the views expressed therein are strictly those of the author and must not be impugned to be those of the IADC or of the Ukrainian community in general until and unless it has been endorsed by the IADC or by the National UCC executive.
Two sets of apologies are in order. Throughout the critique the terms Justice Deschenes and the Commission are used interchangeably. Thus, certain quotations attributed to Justice Deschenes should perhaps be attributed to Yves Fortier, Michael Meighen or other people associated with the Commission. Secondly, we have concentrated on exposing the negative aspects of the Report and have largely ignored the very substantial positive content in the Report. Finally, we must acknowledge the enormous effort which the Commission obviously had to expend in performing its task.
The second apology is extended to the Jewish ethnic community in Canada. Several Jewish organisations and individuals of Jewish origin are treated harshly in our critique. This was not done lightly and does not imply malice or disrespect to the Canadian Jewish community or the Jewish people in general. Nevertheless, it is the author's opinion that these organisations and individuals have not acted in the best interests of Canadians, in general, and Jews, in particular. Whatever the motives of these organisations and individuals, they are obviously ill-conceived, for the results of their actions is certain to promote tension and hatred between the Jewish and other ethnic communities in Canada.
From the Report it is evident that the subject of "war criminals related to the activities of the European Axis countries during World War II" came into prominence in the United States with the passage of the Holtzman Amendment in 1978 which resulted in the formation of the Office of Special Investigations (hereafter referred to as the OSI) shortly thereafter. Simultaneously in Canada, Robert P. Kaplan attempted to have a private member's bill on the subject passed in parliament. Since then there has been constant unrelenting pressure by Mr. Kaplan and other Jewish individuals and organisations to form an OSI in Canada. The formation of the Deschenes Commission under blatantly discriminatory terms of reference was a step along this path. Although the Report itself shows that the magnitude of the problem was greatly overstated and, in fact, virtually non-existent, we are nevertheless presented with a fait accompli. The Canadian people must now decide how to make the best of a bad situation.
First, let us examine the OSI in the U.S.A. It is our contention that the OSI is a tool of the Soviet KGB which uses it to subvert the U.S. system of justice and to promote dissension and hatred within the U.S. We make this point repeatedly throughout our critique. Of particular concern to us is that the Deschenes Commission appears to have been unduly influenced by the OSI which is apparent from the numerous references to it and the positive comments concerning its operations. Under no circumstances should an OSI-type of situation be allowed to develop in Canada!
Because the terms of reference of the OSI and the Deschenes Commission are so narrow, the general public is left with an erroneous impression that all the atrocities and crimes during World War II were committed by the personnel of the European Axis countries. The German people and Canadians of German origin have had to endure this holier-than thou hypocrisy of North Americans for over forty years. An examination of the crimes perpetrated by the personnel of the Allied forces is long overdue. North Americans, in general, must admit that crimes were committed by all sides in the conflict and the Jewish community, in particular, must realize that millions of other people besides Jews suffered during the terrible tragedy called World War II.
We therefore suggest that the best way to treat the Report of the Deschenes Commission is to consider its contents and recommendations for what they are: a particular subset of the more general problem of "crimes committed outside Canada by Canadian citizens or residents of Canada". Obviously, further study is required in areas not covered by the Commission, as is suggested in recommendation 5 of our critique.
The structure of our critique follows the format of the Report. Our 23 findings and recommendations are summarized and presented in ChapterI-1, followed by an analysis of ChaptersI-2 to I-8 and AppendixI-M.
Chapter I-1 FINDINGS AND RECOMMENDATIONS
A summary of the main findings and recommendations in the critique concerning the Report of the Commission of Inquiry on War Criminals follows:
1. (ChI-2) The method of creation of the Commission and its terms of reference was a gross violation of democratic principles. Measures should be taken to ensure that such violations of our democratic principles cannot occur in the future.
2. (ChI-2, ChI-4) The narrow definition of "war criminals" used by the Commission is ill-conceived and discriminatory. Consequently, because of its narrow scope, the Report lacks the universal validity on which Canada's legal code on war crimes could be based.
3. (ChI-2, ChI-4) Similarly, the terms "Nazi Germany" and "Nazi war criminals" are misleading and inappropriate. The proper terminology is "the European Axis countries" (when referring to World War II or "the German Third Reich" (when referring to Germany per se) and "war criminals associated with the European Axis countries".
4. (ChI-3, findings 1-4) The Report fails to acknowledge and examine the illegal repatriation of Cossacks, Yugoslavs, Ukrainians, Russians and other refugees to certain incarceration and/or death at the hands of the Bolshevik NKVD and Tito's communist partisans immediately after World War II. Similarly, crimes perpetrated by the personnel of the Allied forces against personnel of the Axis forces and the civilian population, in general, are neither acknowledged nor examined.
5. On the basis of the findings above, it is therefore
recommended that the Federal government instruct the Commission
to broaden its mandate and carry out investigations in the
following three areas:
6. (ChI-4) The Commission relies very heavily on the "Charter of the International Military Tribunal which sat at Nurnberg" and the trials associated therewith (hereafter referred to as the Nurnberg War Trials) as a basis for its concept of war crimes, crimes against peace and crimes against humanity. Since the Nurnberg War Trials were acts of vengeance and self-justification by the victors over the vanquished, as evidenced by the fact that not a single "Allied" war criminal was ever investigated, tried and/or convicted at these trials, they lack the universality on which universal laws of jurisprudence can be based. In addition to the three cases cited in our text below, there are many other examples where the Nurnberg Tribunal suppressed information prejudicial to their cause. Under no circumstances should the Nurnberg Charter be used as a basis for drafting Canadian legislation in this area.
7. (ChI-5) Of the 2114 names on the lists (obviously overlapping) supplied to the Commission, 1655 were supplied by various Jewish organisations or individuals. It is not clear if any members of the Judenrate, the Jewish police or Jewish kapos are included in the names within these lists.
8. (ChI-5) The Commission admits to showing the photograph and signature of many of the suspects to witnesses purportedly for purposes of identification, and of forwarding specific names on its Master List to various Jewish organisations and Eastern and Western governments. This appears to be a serious breach of the legal rights of the suspects. The Commission should be asked to clarify its procedures and to notify the suspects involved of the dangerous situation in which they have been placed.
9. (ChI-6) On the topic of Mengele, it is clear that the Canadian representative of the Simon Wiesenthal Center, Sol Littman, attempted to mislead the Commission and that he was supported in this attempt by Irwin Cotler (Canadian Jewish Congress) and David Matas (B'nai Brith Canada).
10. (ChI-3, ChI-7) The actions of Robert P. Kaplan, both as a member of parliament and as Solicitor General of Canada, in actively seeking the extradition of Canadian citizens is reprehensible in the extreme. Serious consideration should be given to the feasibility and advisability of criminal charges being pressed against him.
11. (Ch7, findings 9-16) It is indeed fortunate that the Federal government had the moral courage to reject the Commission's recommendations pertaining to extradition. We are, nevertheless, concerned by the Commission's equating "extradition" with "justice".
12. (ChI-7, recommendation 28) Justice Deschenes' argumentation that enactment of retroactive legislation is made possible by article 11(g) of the Canadian Charter of Human Rights and Freedoms and the "general principles of law recognized by the community of nations" seems to be more an exercise in legal double talk than a matter of principle and justice.
13. (ChI-7, recommendation 28) Although we have no objection to the Canadian government implementing retroactive legislation to deal with all extra-territorial crimes past, present and future, we must object to any reference to the infamous Nurnberg War Trials and to the use of misleading and conflicting terminology.
14. (ChI-7, findings 29-53) Once again we must commend the Federal government for rejecting the Commission's recommendations pertaining to denaturalization and deportation. And once again we must chastise the Commission for parroting the views of the OSI on this subject.
15. (ChI-7, findings 29-53) We must respectfully ask the Commission, in general, and Justice Deschenes, in particular, to withdraw the statement that the OSI standards of evidence are "clear, unequivocal and convincing--- not leaving the issue in doubt" when, in fact, the opposite is the reality.
16. (ChI-8, findings 54-82) Of the 939 total cases considered, 32 are still in abeyance pending external checks and of the 29 relegated to the confidential Part II of the Report, the Commission recommends closing of nine of the cases. Of the remaining 20 cases, it is likely that the majority will be proven innocent before going to trial and that conviction of the remaining fraction of 1% of the original total will prove extremely difficult for a variety of legal and technical reasons.
17. (ChI-8) The frivolous, mischievous and even malicious nature of many of the denunciations described in this chapter, leads one to question the mental equilibrium of many of the individuals and organisations supplying these denunciations.
18. (ChI-8) The Ukrainian community is particularly disturbed that the Canadian Jewish Congress and B'nai Brith Canada as well as Simon Wiesenthal continue to parrot the KGB-sponsored disinformation concerning the Halychyna Division of the Waffen-SS, despite the fact that this Division has been repeatedly cleared of participation in war crimes.
19. (ChI-8, p827) We must object in the strongest possible terms that "In 96 percent of the cases which the Commission has investigated it has not communicated with the suspects." We strongly urge the Federal government to instruct the Commission to inform all the people whose names have been submitted to the Commission, in particular, those whose names have been submitted to hostile organisations and/or governments by the Commission and by Robert P. Kaplan.
20. (ChI-8, recommendation 80) Despite the recommendation not to create an OSI in Canada because it would jeopardize "internal peace between the various ethnic groups" and be "likely to inflict serious and possibly incurable wounds", it is obvious throughout the Report that the Commission has been heavily influenced by the philosophy of the OSI. It should be obvious to the Commission that serious damage has already resulted from the Commission's investigations.
21. (Appendix I-M) A list of 9 arguments in favour of travelling to the Eastern Bloc to gather evidence has been thoroughly refuted by Paul Zumbakis, Soviet Evidence in North American Courts and by others.
22. (Appendix I-M, p890) In addition to the six basic precautions which the Commission feels should be enforced on Soviet-supplied evidence, we have added three more: allowing the defence to be fully represented at all hearings; to search out exculpatory evidence within the USSR; to have all costs borne by the government.
23. (Appendix I-M) The decision of the Commission to travel to the Soviet Union to gather evidence should be reversed by the Federal government until much better safeguards for the accused victims can be ensured.
Chapter I-2 The Commission
On page 17 of the Report responsibility for the creation of the Commission of Inquiry on War Criminals is placed on the shoulders of the "Committee of the Privy Council, on the recommendation of the Prime Minister", Brian Mulroney via Order No. 1985-348, 7 February 1985. (It is of interest that the "French version of this Order-in-Council was revoked and replaced by an amended version on 28 February 1985: P.C. 1985-635.) Since the composition of the Privy Council includes all present and former cabinet ministers, it appears that the leader of the opposition, John Turner and members of the former Liberal administration must also bear responsibility for the creation of this Commission.
As we have stated in the preamble, we view the method of creation of the Commission, and the ability of its proponents to specifically limit its mandate to discriminate against a select minority of Canadians as a very dangerous attack on the very fabric of our society. Indeed it points to some very serious shortcomings of our political system. It is inconceivable that in a free democratic society based on a parliamentary system of government which prides itself in protecting the human rights of its citizens, such a Commission could be created without full debate by elected representatives in parliament or consultation with the ethnic communities directly affected by it. It is not clear what measures could be taken to ensure that such violations of our democratic principles cannot occur in the future.
The justification for the creation of the Commission is
contained in three WHEREAS's which we will examine in more detail
in the text. In light of the Report itself and our analysis of
the contents therein, none of the three reasons are valid:
Nevertheless, on the basis of these three WHEREAS's as well
as his own personal preferences, Justice Deschenes (p3) defines
"war criminals" as follows:
This ill-conceived definition haunts the Report from beginning to end. It is the height of linguistic irresponsibility to restrict a universally general term such as "war criminals" to a very limited time span, geographical area and historical circumstances. Such restrictions are normally imposed by the use of appropriate adjectives and not by redefining a general term. By choosing this unfortunate definition, Justice Deschenes appears to be admitting that his Report lacks the universal validity on which Canada's legal code on war crimes could be based.
To make matters worse Justice Deschenes is not consistent in adhering to his own definition throughout the Report. This creates a great deal of confusion for the reader who must try to decide whether the term "war criminals" is being used in the limited sense defined above or in the universal sense.
Thirdly, by branding "all persons...allegedly responsible for crimes..." as "war criminals", Justice Deschenes is unjustly attaching this label to all 939 persons examined by his Commission and any other persons who may be unjustly accused in the future.
And finally, one would not expect terminology popularized by B-grade war movies to be used in a Royal Commission report. "Nazi Germany" is neither proper or acceptable terminology for the German nation during the period under consideration. And the term "Nazi war criminal" which is used indiscriminately throughout the text should be used only to refer to war criminals who were members of the National Socialist party of Germany during this time.
Chapter I-3 The Factual Background
The factual background which Justice Deschenes presents in
his Report is as limited as his definition of war criminals. It
is clearly insufficient for the reader to even begin to
comprehend the complex sociological issues of that period. A more
balanced view could be obtained if the first three sentences of
the chapter (p25) were amended from:
In commenting on the Nurnberg War Trials from 1945 to 1949 carried out by the victorious Allies to impose their "justice" on the defeated Germans, Justice Deschenes fails to mention that not one Allied war criminal was identified, tried and/or convicted by the Nurnberg Trials even though there was massive evidence in this regard.
In the next paragraph and on page 26 one notes that the "Canadian Forces...held their own public trials in Aurich, Germany" and after the Canadian forces had been repatriated, this function was turned over to British authorities. Needless to say, not one Canadian was ever put on trial for war crimes although once again there was plenty of evidence available.
As Justice Deschenes points out (p29) there was little
interest in the subject of war criminals in Canada until the
advent of the OSI in the U.S. in the very late 1970s when: "In
October 1978, the Honourable Bob Kaplan, then Member of
Parliament, had introduced Bill C-215: "An Act respecting war
criminals in Canada".
Obviously, in the latter years of the Trudeau administration, Robert Kaplan was a very busy man in furthering the interests of the OSI. In passing, it should also be noted that the Canadian Security Intelligence Service (CSIS) patterned after the CIA in the U.S., the Mossad in Israel and the KGB in the USSR was created separate from RCMP control during the reign of Robert Kaplan.
The Report next refers to two studies (see Appendix I-I).The first, by Mr. Donald Caskie indicates that over 12,300 people were convicted of war crimes since World War II. This compares with zero Allied war criminals tried or convicted. The second study by Mrs. Alti Rodal deals with "The Historical and Policy Setting from the 1940s to the Present". Both of these studies should be examined by the various ethnic communities affected (especially the German) to ensure that the true historical facts and their interpretation have not been distorted.
Chapter I-4 The Concept of War Criminals
With this universal sounding title but, in fact, from a much narrower perspective, Justice Deschenes very conveniently justifies not extending his mandate to include all war criminals but then broadens his mandate beyond war crimes to include crimes against humanity and crimes against peace.
Let us first note that from the quotation (p38) "... during
the period 1939-1941 (...) the Soviet government was in effect a
partner of the Third Reich", Justice Deschenes is well aware of
the appropriate terminology for the German state at that time.
And from Article 6 of the 1945 Charter of the International
Tribunal which sat at Nurnberg:
From the definitions in Article 6 of Crimes against Peace, War Crimes and Crimes against Humanity, it is obvious that the "Allied countries" were guilty of crimes in each of these categories and yet not a single "Allied" person, either as an individual or as a member of an organisation was ever brought to justice for these crimes.
The attempts of the Nurnberg Tribunal to justify its acts of selective vengeance (p39-40) "The Charter is not an arbitrary exercise in power on the part of the victorious nations but ...", "the law of the Charter is decisive and binding upon the Tribunal", "The Tribunal is of course bound by the Charter, in the definition which it gives both of war crimes and crimes against humanity" is ludicrous. It is analogous to a Ku Klux Klan lynch mob trying to justify itself because its victim is black.
Three examples of its "justice" should be sufficient:
(2) In the "Adreatine Cave" case (see submission of the Ukrainian Canadian Committee to the Commission) where 335 innocent Italian civilians were massacred as reprisals for the death of 32 German policemen by an exploding bomb in Rome, the British military court did not dispute the "legitimacy of reprisals under international law" as claimed by the defense, but rather claimed "that the reprisals were not proportional to the crime committed". Reprisals against innocent civilians was a very widespread practise by both the Allied and Axis forces during World War II. The attempt of the Nurnberg Tribunal to legitimize this abhorrent practise under international law is a prime example of the moral degeneracy of the Nurnberg War Trials.
(3) In May 1946 on the basis of testimony of Jewish eyewitnesses who claimed that it was impossible that they could be mistaken since such a face could not be forgotten, Anton Brunner was tried and hanged in Vienna for war crimes despite his protestations of innocence. Now, in the 1980s, Israel is attempting to extradite Aloiza Brunner from Syria for the same crimes. (see Oct. 6, 1986 issue of the Ukrainian Voice for a reprint of a letter by Boretsky, Samilenko, Strokata, Karavansky to the Israeli judiciary dated Sept. 3, 1986.) How many more such miscarriages of justice were perpetrated by the lynch mob which called itself the Nurnberg Tribunal one can only surmise.
Justice Deschenes may be correct in feeling that the Nurnberg Charter "offers the most convenient instrument to deal with war criminals" but it is also the most morally repugnant. Under no circumstances should it be used as a basis for any Canadian legislation concerning war crimes.
We agree with the Mennonite submission in questioning the "moral validity" of the Canadian government limiting the Commission's mandate to "war crimes related to the activities of Nazi Germany". It is ironic that Justice Deschenes' argument (p38) that "It does not belong to this Commission to pass judgement on the wisdom of this decision or on its 'moral validity'; nor should the Commission extend its mandate beyond the borders of its obvious meaning" is completely analogous to the common defense at the Nurnberg Trials: "I was only following orders". This defense was not accepted by the Nurnberg Tribunal. One could have hoped that Justice Deschenes had found the courage to either broaden his mandate to include all war criminals or simply decline the assignment. After all, it is unlikely that he would have been shot had he done so.
Chapter I-5 Methodology
The sources of the names of suspects in the Master List compiled by the Commission is summarized on pages 47-48. In addition to the RCMP which contributed 335 names, other substantial sources were Joseph Riwash (Yad Vashem [Montreal businessman?]) 707, Simon Wiesenthal (Vienna) 219, Canadian Jewish Congress (and Professor Irwin Cotler) 209, Sol Littman 171 + 3 lists, B'nai Brith Canada (and David Matas) 100, Department of Justice Canada 81, Simon Wiesenthal Center (Los Angeles) 63, Canadian Holocaust Remembrance Association (Sabina Citron) 54, Israel Police (M. Russek) 54, Jewish Federation of North Jersey (R.Krieger) 49, USSR 43, Ephraim Zuroff (OSI, Yad Vashem, Wiesenthal L.A.) 29.
It is not clear if any members of the Judenrate (the Jewish councils that the Germans established to help them administer the ghettos of Eastern Europe), the Jewish police in these ghettos or the Jewish kapos in the various concentration camps are included in these lists. Certainly their numbers in Canada should be considerable.
There are several aspects of the methodology of the Commission which are disturbing. (1) We quote from pages 49-50: "... the information requested in a citizenship application did not include information as to an individual's activities during the war. It did, however, include a photograph and signature of the applicant, which was quite frequently the earliest picture of that individual available to the Commission. These pictures proved useful in having witnesses identify the individual, as they were usually taken a decade or so of the end of the war." [our emphasis]
This procedure is suspiciously similar to the one perfected by the OSI in the U.S.A. in preparing Jewish witnesses to "appropriately" identify their chosen victim. The trick is to expose the witness to a photograph and name of the victim on several occasions before any court proceedings are undertaken to reinforce the connection of the guilt of the victim in the witness's mind.
It is unclear whether the Commission obtained the permission of the individual concerned before showing the photograph and name to the so-called "witnesses" and whether the individual concerned was represented by legal counsel at such showings. (On page 827 it is stated that "In 96 percent of the cases which the Commission has investigated, it has not communicated with the suspects".) If not, then it is clear that the legal rights of the individuals concerned have been violated by the Commission.
(2) In this same context, the following quotation appears on page 57: "More particularly, the Commission forwarded specific names on its Master List and in some cases specific questions to Centre de documentation juive contemporaine in Paris, the Office of Special Investigations (OSI) in Washington, D.C., the Wiesenthal Documentation Center in Vienna, and the Yad Vashem archives in Israel, as well as to the appropriate departments or agencies of several Eastern and Western governments."
On the one hand, the Commission claims that it took elaborate precautions to preserve the anonymity and rights of the accused individuals; on the other hand, it disseminates this information to organisations and individuals who are more interested in vengeance rather than the rights of the accused. It would be a miracle indeed if the Commission's Master List were not in the hands of the KGB, the Israeli Mossad and the CIA. The real effect of the Commission's "precautions" is to have kept the knowledge of the investigations away from the persons being investigated.
(3) We are deeply concerned that on page 57 the Report describes the OSI in glowing terms: "The Office of Special Investigations (OSI) in Washington was established in 1979, as a unit within the Criminal Division of the United States Department of Justice. Its mandate was to locate Nazi war criminals in the United States, and also to institute prosecutorial proceedings against such individuals where appropriate. Because of its broader mandate and accumulated years of practical experience, the OSI was a valuable source of historical information in addition to providing information on specific individuals having some American connection during or after the war. Of particular value to authorities who might contemplate initiating proceedings against individuals resident in Canada was a series of step-by-step model investigations in the following subject areas: Latvia, Lithuania, Estonia, Slovak Hlinka Guard, Hungary, Romania, Yugoslavia, Poland, Ukrainian Police, Schutzmannschaft (Ukrainian), Einsatzgruppen, concentration camp and SS lists."
We submit that far from being a role model to be emulated in Canada, the OSI should be denounced for subverting the U.S. system of justice and promoting dissension and hatred within the ethnic communities in the U.S. We respectfully request Justice Deschenes to retract his positive opinion of the OSI.
Chapter I-6 The Mengele Affair
Justice Deschenes leaves little doubt that the Mengele affair was just a red herring orchestrated by Ralph Blumenthal of the New York Times and Sol Littman, Canadian representative of the Simon Wiesenthal Center, and believed by nobody except the sensation seeking mass media. We do not know what political blackmail or debts were brought to bear on the Prime Minister and the Privy Council to initiate the Commission with its circumscribed mandate but it is ridiculous to attribute it to Mengele.
More serious is the fact that Mr. Littman attempted to manipulate the Commission and was supported in this attempt by Irwin Cotler (Canadian Jewish Congress) and David Matas (B'nai Brith Canada).
On 1 May 1985 Irwin Cotler stated (p76) that he had found no evidence that Mengele had tried to enter Canada. Yet on 19 October 1985, he and David Matas supported (p80) Littman's refusal to divulge the names of two people who supplied him the information except in an in-camera session. After adjourning until the next day and consulting with Mssrs. Cotler and Matas, Mr. Littman came up with the names of Naylor and Yetter which Justice Deschenes had difficulty in accepting, since their testimony certainly did not support that of Littman.
To quote Justice Deschenes (p80): "Here the picture gets blurred; and, much to its regret, the Commission must say that it takes a dim view of the attitude of Mr. Littman."
Chapter I-7 The Legal Remedies
The Commission lists and studies the possible legal remedies in the following order of preference: (1) Extradition, (2) Prosecution in Canada, (3) Denaturalization and Deportation.
We must confess that we find much of the material in this chapter to be legal double-talk and double-think of the type used by the legal profession to particularize general concepts in the interests of a specific point of view, and against the interests of another. The danger with this approach is that general moral principles are drowned in an endless plethora of words.
In this Report we submit that the relevant issue has passed
through six narrowings from:
The findings and recommendations of the Commission are thus extremely limited in scope and can only act as a subset to the findings and recommendations of a more general study.
On the other hand, any legislation contemplated by the Federal government must be applicable in the broadest, most universal sense. It is not desirable nor should it be necessary to narrow the general terminology of "crimes" to the more specific "war crimes, etc.". And, of course, in order to maintain its universality such legislation may not make reference to any particular place, time or circumstance.
With these reservations in mind, we shall nevertheless
examine the material in this chapter, at least in a cursory
Similarly, the quotation on page 111 attributed to Kenneth Narvey of the North American Jewish Students' Network - Canada: "Extradition remains the best way of bringing to justice alleged Nazi war criminals found in Canada, when it is available", should more realistically be rephrased to emphasize that "Extradition remains the best way of circumventing justice and repatriating Canadians of East European origin to their deaths behind the Iron Curtain - sort of completing the job which the Allies carried out immediately after World War II."
By no stretch of the imagination could extradition be equated with justice!
On page 88 Sol Littman is again chastised for making misleading statements concerning Soviet requests for extradition.
Of more concern to us is the following paragraph on page 88 concerning the former Solicitor General Robert Kaplan: "During the course of his evidence before the Commission, Mr. Kaplan stated that 'there were well over 100 requests'. It has now been made clear that Mr. Kaplan was referring to police investigations in relation to possible extradition rather than to formal extradition requests (ibid.) and that, indeed, the majority of them had been 'initiated in Canada rather than initiated by a foreign request'."
We are shocked that the office of the Solicitor General, whose duty is to protect the rights of Canadian citizens, would actually lobby foreign governments to seek extradition of these verycitizens. It is an unheard of abrogation of responsibility! In many countries of the world Robert Kaplan would be facing criminal charges of treason for such action.
The hypocrisy of Robert Kaplan is further illustrated by the statement attributed to him on page 94: "I am suggesting that the bar which exists in our treaty ought to be removed. On the recent visit to Canada of the Foreign Minister of Israel, Yitzhak Shamir, I raised the matter with him in a meeting that he had with some members of the Liberal caucus in Ottawa. After raising the point, he took note of it, and a few weeks later we were informed that Israel would be prepared to see the treaty amended in that way."
When Yitzhak Shamir was in Canada why did not Robert Kaplan accuse him of war crimes and crimes against humanity for his terrorist activities as leader of the Stern gang in 1948 and earlier? The same can be said for Menachem Begin and his Irgun who were directly responsible for the Deir Yassin massacres 9 April 1948 where over 250 Palestinian villagers were murdered. It is the height of hypocrisy for Robert Kaplan as Solicitor General of Canada to collaborate with proven war criminals for the extradition of Canadian citizens whose rights he has sworn to uphold!
Under no circumstances should recommendation #11 concerning amendment of the Canada-Israeli extradition treaty be implemented.
(2) Prosecution in Canada (p111-168)
Justice Deschenes claims that enacting such legislation is
made possible by article 11(g) of the Canadian Charter of Rights
and Freedoms (p131):
Justice Deschenes outlines the tortuous development of so- called international law in this area from 1922 when the term "principles of justice which are common to all civilized nations" was in common usage; through the infamous Nurnberg Trials after World War II when the victors wreaked vengeance upon the vanquished but ignored war crimes in their own bailiwick; and to the present day when the term "general principles of law recognized by the community of nations" has come into vogue. (This expression is repeated 25 times throughout this section of the Report.)
In following the evolution of article 11(g) through parliamentary debate Richard B. Wagner (p146) concludes: "This last statement confirms that s. 11(g) of the Charter was specifically amended to provide for the constitutional validity of "enabling legislation" for the prosecution of Nazi War Criminals."
And on page 132 Justice Deschenes concludes: "In Canada, a person charged with an offence has henceforth no right to an acquittal if the act, when committed, was criminal according to the general principles of law recognized by the community of nations. In entrenching that provision in its Constitution, Canada could not have more clearly acknowledged its respect for international law; it could not have bowed more reverently to the universal belief in a basic law common to all mankind; it could not have more eloquently adopted that law into its own legal system."
We beg to differ with Justice Deschenes on several counts. Both terms "civilized nations" and "community of nations" are misleading and meaningless when used in a legal context. No nation on this planet could successfully claim to be particularly "civilized" or that its "general principles of law" are acceptable and/or accepted by the rest of the nations of the world. Similarly, there has never been any consensus among the nations of the world or within Canada itself of the validity or applicability of "international law" in the general sense. And certainly not in the area of war crimes. To state that Canada has "adopted that law into its own legal system" via article 11(g) of the Canadian Charter of Rights and Freedoms is absurd!
Finally, it is rather hypocritical of Justice Deschenes to refer to the "universal belief in a basic law common to all mankind" when his own findings and recommendations are neither universal, basic, nor common to all mankind.
We also wish to disagree with Justice Deschenes' implication of the overriding power of the Canadian Charter of Rights and Freedoms in the following statement on page 134: "The Charter is that part of that special brand of statute which is called a constitution; it must be construed with full consideration for the circumstances of the country and the people for whom and by whom it was adopted."
We would like to point out that since neither the Charter nor the Constitution of 1982 was ever adopted by the people of Canada via a referendum, their validity and applicability are questionable. Virtually all other nations on this planet recognize the necessity of the Constitution and all amendments thereto being ratified by the people. Only in Canada can a Constitution be formulated by their politicians and their legal advisors and then unilaterally imposed on the populace. Because of this, the Canadian Charter of Rights and Freedoms, as well as the Constitution of 1982, shall never have the moral or legal validity which Justice Deschenes attributes to them.
Although we have no objections to the Canadian government
implementing retroactive legislation to deal with all extra-
territorial crimes past, present and future by people of any
ethnic origin and political persuasion against people of any
ethnic origin or political persuasion, we do have three
reservations concerning recommendation 28 on page 167:
In concluding this section we must emphasize that the most important aspect of any Canadian legislation dealing with extra- territorial crimes be its even-handed applicability. It should be just as applicable to an NKVD operative during the 1930s, as to a Zionist terrorist in 1948, the Korean War during the 1950s, the Vietnam War during the 1970s, the Middle East Wars during the 1980s, or to conflicts of the future.
(3) Denaturalization and Deportation (p136-239) The most striking aspect of this section is the complete dominance of OSI philosophy in the Commission's thinking. It is extremely disturbing that the Commission either does not see or ignores the gross violations of justice perpetrated by the OSI.
Let us quote from the Report:
p173 - "... the duplication and repetitiveness of evidence, the expense and delays involved, create a serious impediment to the efficient and fair administration of justice."
"One way of avoiding such an unfortunate result would be - at least in the case of Nazi war criminals - to consolidate denaturalization and deportation into a single set of procedures."
"Denaturalization denies any right of judicial appeal: why not apply the same rule to deportation?"
p185 - "In the U.S.A. the civil nature of the process leading to revocation of citizenship has never been put in doubt. ... Nor has it ever been questioned that the burden of proof falls on the prosecuting government. It follows that the government must prove its case in accordance with the rule which avails in civil matters: according to the balance of probabilities."
p186 - "The British standard, a probability of high degree, is very demanding; yet it appears to fall somewhat short of the American rule: clear, unequivocal and convincing ... not leaving the issue in doubt, which is tantamount to adopting the criminal law standard."
p188 - "..., the Commission is of the view, with all due respect for the U.S. Supreme Court, that the British approach is more consistent with the civil nature of the process and the consequent choice of the civil standard of evidence: the courts should not be satisfied with less, but should not look for more than a probability of a high degree."
p225 - "It appears desirable to find an objective criterion which, while retaining the basic fairness exacted by our system of law, might lighten to some extent the burden of the prosecution. With this goal in mind, inspiration can wisely be gained from a reading of the so-called "Holtzman amendment" adopted by the U.S. Congress in October 1978. In the words of Congress itself, the act was intended "To amend the Immigration and Nationality Act to exclude from admission into, and to deport from, the United States all aliens who persecuted any person on the basis of race, religion, national origin, or political opinion under the direction of the Nazi government of Germany...".
The congruence of the views of Justice Deschenes with those of the OSI is evident from these quotations. It is particularly galling to have the OSI standards of evidence described as "clear, unequivocal and convincing... not leaving the issue in doubt" when, in fact, the exact opposite is the reality. This has been convincingly demonstrated by Paul Zumbakis in his document Soviet Evidence in North American Courts as we will presently show while treating Appendix I-M below.
Neither here, nor anywhere else in his Report does Justice Deschenes make clear that the OSI has never provided "clear, unequivocal and convincing" proof that any of its victims have perpetrated war crimes. It only alleges such crimes (usually on evidence supplied by the KGB) and then attempts to find some irregularities in the victims immigration and/or citizenship applications. The victim is thus deported on a technicality rather than any proof of having committed war crimes. Such is the "justice" of the OSI!
On pages 168-169 it is stated that the following people were deported from the United States by the OSI: Hans J. Lipschis to West Germany on 14 April 1983 Feodor Fedorenko (Ukrainian) to the USSR on 21 December 1984 Valerian Trifa (Romanian) to Portugal on 13 August 1984 and the following people were extradited: Andrija Artukovic (Croatian) to Yugoslavia on 12 February 1986(?) John Demjanjuk (Ukrainian) to Israel on 27 February 1986 Hermine Braunsteiner Ryan to West Germany on 6 August 1973 (pre OSI) Karl Linnas (Estonian) to the USSR on 20 April 1987 (post Report)
We are not familiar with the cases of Ryan and Lipschis but in the five other cases the overwhelming sentiment within the Romanian, Croatian, Ukrainian and Estonian communities is that the U.S. Department of Justice has been corrupted by OSI collaboration with the KGB. Large segments of North American society have lost confidence in the U.S. system of justice. No moral person could claim that justice has been served in these cases.
Surely Justice Deschenes must realize that implementation of most of his recommendations 29 to 53 concerning denaturalization and deportation would destroy the confidence of Canadian citizens in their judicial system. It is fortunate, indeed, that the Federal government has had the moral courage to reject the Commission's recommendations.
Before concluding our comments on this section we would like to note that both David Matas of B'nai Brith Canada (p190) and Irwin Cotler of the Canadian Jewish Congress (p195) argue forcefully that the people they accuse of being war criminals had a "duty to disclose" all information which may have been prejudicial to their application for immigration even if such information was not asked by the immigration officer. Strangely enough, as evidenced by a recent article in the Edmonton Journal, Mr. Cotler does not extend this duty to Jewish immigrants.
Chapter I-8 War Criminals in Canada?
As far as we can tell, the total number of cases considered in this chapter (including those with multiple numbering, those stricken off, the 38 name addendum and the 73 name list of German scientists but excluding case No. 400 which is missing) is 939.
Of the 939 total cases 34 - 2 (see p834) = 32 are still in abeyance pending results of external checks and 29 have been relegated to the confidential Part II of the Report. Of the remaining 878 cases, 77 denunciations are attributed to private citizens (presumably Canadian) and 56 to private individuals (presumably non-Canadian) often communicated through Irwin Cotler of the CJC, David Matas of B'nai Brith Canada or the RCMP-CSIS. The rest must be attributed to the organizations listed on pages 47-48 of the Report. Oddly enough Joseph Riwash of Yad Vashem who supplied 707 names is not credited with any denunciations and Ephraim Zuroff (with connections to the OSI, Wiesenthal Center, L.A. and Yad Vashem, Israel) who supplied 29 names (p48) is credited only with cases #85 and #86 (and perhaps #08 which is attributed to a researcher at Yad Vashem).
In reading through these cases one is often struck by the frivolous, mischievous and even malicious nature of these denunciations. Perhaps one could expect a few such denunciations from mentally deranged individuals, but certainly this should not be acceptable from organizations who claim themselves to be respectable and objective such as Yad Vashem, the Simon Wiesenthal Centers at Vienna and Los Angeles, the Canadian Jewish Congress and B'nai Brith Canada. It indicates that these individuals are run by individuals who have completely lost their objectivity and are living in a world of paranoid fantasy --- creating war criminals to satisfy their psychological needs.
To the Ukrainian community, what is particularly disturbing is that these Jewish organizations persist in labelling members of the Halychyna Division of the Waffen-SS who fought against Bolshevik tyranny during World War II as Nazi War Criminals. This accusation was levelled by Samuel Bronfman of the Canadian Jewish Congress in 1950 when he tried to prevent immigration of Ukrainian refugees to Canada. The situation was thoroughly investigated by the Canadian government (p251) and the immigrants were thoroughly screened (3 times) before being allowed entry. It is disturbing that the CJC and B'nai Brith Canada continue to parrot this KGB-sponsored disinformation.
There are four particular issues in this chapter for which the Commission must be berated:
(1) With respect to the modus operandi of the Commission we are disturbed that in five cases (#80, 82, 205, 514, 769) "In addition, in 1985 the Commission wrote to the Centre de documentation juive contemporaine in Paris requesting any information that the centre had on the activities of the particular paramilitary organization in general and a number of named individuals, including the subject under investigation. There was no response to that letter." and in one case (#109): "In 1985, the Commission wrote to the Yad Vashem archives and stated that it had located the subject in Canada."
Should these cases include subjects of Ukrainian origin, the Ukrainian community must protest that the Commission would so thoughtlessly supply names to these organisations who have so consistently shown their anti-Ukrainian bias --- magnifying certain events and suppressing others so as to promote a distorted view of Ukrainian-Jewish relations in Eastern Europe.
(2) Although we generally applaud the Commission's handling of most of the cases, we have some reservations concerning cases #223, 333, 435, 655, 658.1, 732. Justice Deschenes has gone to great pains to limit his mandate to the time period 1 September 1939 to 9 May 1945 and to war crimes and crimes against humanity perpetrated by "Nazi war criminals". And yet, when it suits his purpose, he shows interest in "Nazi" activities from 1922 to the present day, in a manner reminiscent of "Commie hunting" during the McCarthy era of the early 1950s.
(3) We are appalled by the following decision (p827): "In 96 percent of the cases which the Commission has investigated it has not communicated with the suspects. The latter have not been made aware of the Commission's interest. There is no reason to alert now, especially, the 606 people, or their successors, whose files the Commission recommends should be closed."
This decision is so contrary to the concepts of justice as viewed by democratic societies that it must not go unchallenged. In a free and democratic society one does not spend 21 months ferreting into the lives and histories of hundreds of innocent people, publicize and sensationalize the proceedings, and then not even inform the potential victims that they have been the subject of a thorough investigation based on unjustified accusations.
Despite Justice Deschenes' claim that full secrecy has been
maintained, it is quite likely that the KGB, Israeli Mossad, CIA
or any other private or national intelligence service that would
have wanted to, would have obtained the full Master List of
suspects by now. Having compiled the Master List and thus exposed
the names therein to future harassment and blackmail, the
Commission now has the responsibility to protect the innocent by
at least informing them that their names have been exposed. This
is especially true for the people that the Commission recommends
We, therefore, strongly urge the Federal government to instruct the Commission to consult with each of the people whom they have placed in jeopardy as to how best they can be protected from future persecution.
(4) Although in two short paragraphs on pages 828-829 Justice Deschenes concludes that Canada should not set up a US-style OSI, he does so for political and sociological rather than judicial reasons. He rightly points out "the noisy clashes between Jewish organizations and East European groups as well as the never-ending debates over the reception of Soviet-supplied evidence and the alleged co-operation between the OSI and the KGB." And he rightly fears that an OSI in Canada would jeopardize "internal peace between the various ethnic groups" in Canada and be "likely to inflict serious and possibly incurable wounds".
On the other hand in the same paragraph Justice Deschenes lauds "the investigative and prosecutorial authority" of the OSI set up within the Department of Justice of the U.S.A. which he claims "presents undeniable advantages: acquisition of experience, centralization of decisions, streamlining of the whole process from denunciation to conviction". We agree that the OSI system based on civil rather than criminal court proceedings does possess advantages for "denunciation and conviction" of innocent victims via the mass media, but the whole point of the exercise should be justice not denunciation. Justice Deschenes appears to be either ignorant of, or indifferent to, the miscarriages of justice being perpetrated by the OSI.
Appendix I-M Decision Concerning Foreign Evidence (14 Nov. 1985)
In this Appendix, Justice Deschenes goes to great lengths to
justify his decision to have the Commission gather evidence
within the Eastern Bloc, in general, and the Soviet Union, in
particular. Since in this document he appears to favour an
OSI-type of collaboration with the KGB, it is perhaps fortunate
that it finally proved impossible to travel to the Soviet Union
to gather evidence (p266-267). This pro-OSI bias may perhaps be
explained by the following sequence of events (pp58, 869, 875):
Certainly, a close working relationship (see p57) was established between the OSI and the Commission, such that the views of the OSI appear to permeate Justice Deschenes' philosophy. The heinous collaboration between the OSI and the KGB has been well documented by Paul Zumbakis, Soviet Evidence in North American Courts (Americans for Due Process, PO Box 85, Woodhaven NY 11421 - Jan. 1986 and/or Canadians for Justice, 2445 A Bloor St. W., Toronto, Ont. M6S 1P7 - Jun. 1986) and Lydia Demjanjuk, Nazi War Criminals in America, Parts I and II, (PO Box 31424, Cleveland, Ohio 44131)
It is unfortunate and disquieting that the Commission has not included these two studies in the bibliography of this Report. One wonders whether this omission is inadvertent or a deliberate attempt to suppress views contrary to those of the OSI.
For example, a list of nine arguments in favour of travelling to the Eastern Bloc to gather evidence (p878) has been thoroughly refuted by Zumbakis and others.
Justice Deschenes admits (p882) that much of the jurisprudence of the OSI is not reported, then lists 18 cases where Soviet evidence was made available. In the first 6 of these cases Soviet evidence played no part in the final result. In the following 6 cases Soviet evidence was assessed negatively. The commentary of the various judges on the conduct of the OSI and the reliability of the Soviet-supplied evidence is often scathing. We would like to comment on the 5 of the last 6 cases where Soviet evidence was assessed positively:
Osidach - Justice Deschenes fails to mention that the "defendant died before the Soviet evidence issues were challenged on appeal" (Zumbakis, p119).
Demjanjuk - "..., the Court concludes that Government's Exhibits 5 and 6 are authentic and clearly show that defendant was at the German SS training camp of Trawniki" (trial judges excerpt on p887). However, according to Zumbakis (p120): "Two forensic experts, who were not permitted to view the original document, found certain obvious irregularities apparent on the copy of it. Their testimony became available too late to affect the outcome of the proceedings, but the document, as well as its appearance and disappearance from the court file, is a matter which warrants a full review by appropriate authorities."
As of the time of this writing (April 1987), there are still doubts as to the authenticity of this document. In fact, it is conceivable that the question will never be answered. The moral of the story is that it is very easy for the Soviet Union to "manufacture" evidence; it is extremely difficult (and expensive) for the accused victim to disprove it.
Linnas, Koziy, Palciauskas - for various reasons (financial, refusal to take part in a sham, belief that participation in the proceedings would legitimize Soviet conquest of the Baltic countries, etc.) the defendants were not represented by counsel at the hearings within the USSR. Unfortunately, the response of the trial judges in the subsequent proceedings was to proclaim (wrongly) that the depositions obtained in the Soviet Union were thus valid.
It must be pointed out that all 18 cases cited above were civil processes associated with denaturalization and deportation proceedings (without jury and using lax rules of evidence) and were not criminal cases where rigorous rules of evidence are enforced. In each of these cases, the OSI can be fairly accused of being more interested in persecuting, bankrupting and defaming the accused rather than ascertaining the truth and ensuring that justice is done.
On page 890 the report lists six basic precautions which they feel should be enforced on Soviet-supplied evidence. We shall comment on these in turn and add three more:
(1) protection of reputations through confidentiality - Secrecy and justice are not compatible concepts. How can Canadian citizens be reassured that justice has been carried out fairly if all proceedings are secret? In fact, the opposite would be preferable!
(2) independent interpreters - good, but at least one interpreter should be supplied by the defence.
(3) access to original documents - should read "access to all original documents relevant to the case and made available to the defence, in particular."
(4) access to witnesses' previous statements - ... "and all other documentation and information concerning the witnesses themselves".
(5) freedom of examination of witnesses in agreement with Canadian rules of evidence - this is a motherhood type of statement which (following the OSI example) is extremely difficult to enforce in a foreign (and hostile) country.
(6) videotaping of such examinations - ... "by both the Commission and the defence". In addition, provision should be made that these tapes cannot be "edited" which is a charge that has been levelled at OSI-supplied videotapes.
(7) "The defense must be fully represented at all such hearings."
(8) "The defense must have the right to search out witnesses and information exonerating the suspect." This could perhaps be done by means of advertisements in newspapers, radio and television. This must also include the right to travel to the various locations to interview relevant witnesses. This basic precaution would alleviate the key concern which was so aptly expressed by the trial judge in the Kowalchuk case (p885): "Neither the government nor the defendant was permitted to interview other persons in Soviet- controlled territory having knowledge of the facts, or even to visit Lubomyl, where a great many persons familiar with the events still reside".
(9) All defense costs are to be borne by the Government". The resources of the KGB in framing an innocent victim are virtually unlimited. The financial costs to the victim in attempting to defend himself are enormous and beyond the means of most ordinary Canadian citizens. Indeed, the favourite tactic of the OSI-KGB collaborative effort being carried out in the United States is to burden the victim with so many financial costs as to render him bankrupt and unable to defend himself.
We would like to quote several sentences from this Appendix so as to present the gist of the Commission's philosophy:
(p874) - "What is at issue is simply the hearing of people who are alleged to have been witnesses to crimes perpetrated by suspects now living in Canada." "This is an inquiry, not a trial."
(p875) - "That is the Achilles' heel of the argument: the defects cannot be shown to affect the evidence before the evidence has actually been taken."
(p890) - "It is worth recalling that this Commission is not trying anybody. It is inquiring into allegations of war crimes and, for that purpose, it must hear and collect evidence, wherever it may be." "There is no support in jurisprudence why this effort should be stopped a priori."
(p891) - "It must be recalled - though it was so stated earlier - that this is an inquiry, not a trial."
It is perhaps more than a coincidence that this is the argumentation used by the OSI. The real scenario is as follows: We are an investigative body and are thus not subject to the rigorous rules of evidence of a judicial court. We go to wherever the "evidence" is. We do not care whether such evidence has been fabricated by the KGB or not. We bring this evidence back to the United States and if the trial judge in the deportation or denaturalization proceedings believes it, so much the better. If not, the news media will carry out its role of spreading the disinformation and defaming the victim.
The central issue of this whole question is justice. Is it even theoretically conceivable that the fundamental concepts of Canadian justice be maintained even with the 6 basic precautions listed above being enforced? The answer is a resounding NO! No amount of double-talk and double-think can disguise the fact that the accused victim has no effective way of defending himself against false accusations. He is not allowed access to the archives of the Soviet Union to search out exculpatory evidence, he cannot examine the history and credibility of the witnesses and their testimony, he cannot seek out and interview witnesses favourable to his case, he is not even allowed to visit the scene of his purported crime to ascertain the accuracy of the testimony.
Even if the three extra basic precautions which we have added above could be enforced, the odds would still be stacked against the defendant. Only if the KGB itself became interested in justice rather than furthering the political ends of the Soviet hierarchy, would it become possible, at least in theory, to reconcile the Canadian concepts of justice to that in the Soviet Union.
One final point. Does the Commission realize that its proposed collaboration with the KGB is likely to increase repression within the Soviet Union? The KGB will coerce witnesses into giving the "appropriate" testimony by threatening them and their families with incarceration. And as with the OSI proceedings, the KGB will laugh at the aspirations for freedom of the Estonian, Latvian, Lithuanian, Byelorussian and Ukrainian nationalities, rightfully pointing out that the North American judicial system is collaborating with them in deporting "traitors to the Fatherland" who had dared fight Communist tyranny during World War II.-----------
deschene005.html = CRITIQUE of Deschenes Report (90kb);
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