Canadian Jewish News | Jun. 17, 2004 | Paul Lungen

Oberlander case throws war crimes process into question

A decision by the Federal Court of Appeal to restore the citizenship of Helmut Oberlander, an interpreter with a Nazi murder squad, puts into question Canada’s entire process of removing war crime suspects, a top immigration lawyer contends.

“The decision basically guts the process of war criminal citizenship revocation,” said Winnipeg lawyer David Matas. “It is the equivalent in revocation cases of the [Imre] Finta decision [in criminal prosecutions]. It’s basically a blanket immunity. It would spell an end to the effort and mean our laws aren’t working and that we’re a haven criminally and civilly.”

Matas, who also serves as senior legal counsel for B’nai Brith Canada, said federal authorities should appeal the case to the Supreme Court of Canada.

Keith Landy, outgoing president of Canadian Jewish Congress, said “Holocaust survivors feel insulted by the decision, in that the victims weren’t accorded the kind of deference and treatment we as Canadians are giving Oberlander. The sense of frustration is being keenly felt.”

He also called on the attorney general to seek an expedited appeal to the Supreme Court.

Last week, the Federal Court of Appeal released a judgment that overturned a lower court decision and restored Oberlander’s citizenship. Oberlander had been stripped of his citizenship by a decision of the the federal cabinet based on a recommendation by the minister of citizenship and immigration.

That recommendation came after Federal Court judge Andrew MacKay ruled Oberlander had entered Canada after he lied about his wartime service in an SS killing unit.

Evidence at that trial showed Oberlander, an ethnic German living in Ukraine, joined Einsatzkommando (Ek) 10a in October 1941, after Germany invaded the Soviet Union. He served as an interpreter with the unit, which was created specifically to murder Jews and other enemies of Nazi Germany.

The appeal court decision, written by Judge Robert Décary, with Judges Edgar Sexton and B. Malone concurring, quotes MacKay, who found that Ek10a operated under the SS and was one of four similar task forces that carried out Nazi objectives.

“Among their roles they operated as mobile killing units and it is estimated that the Einsatzgruppen and the Security Police were responsible for the execution of more than two million people, mostly civilians, primarily Jews and communists, and also Gypsies, handicapped and others considered unacceptable for Nazi Germany’s interests,” the Appeal Court judgment recounts.

Having reviewed the trial judge’s comments, the appeal court judges nevertheless write that despite “substantial execution activities, Justice MacKay made no finding as to whether Ek 10a was an organization with one single, brutal purpose, e.g. a death squad.”

They go on to cite the trial judge’s findings that there was no evidence Oberlander personally participated in war crimes and that in reporting to cabinet, the minister didn’t refer to Oberlander’s assertion he was involuntarily conscripted.

The judges downplay Oberlander’s wartime service, saying the minister failed to explain why the government’s policy, which is to apply only to suspected war criminals, “applied to someone who served only as an interpreter in the German army.” (In fact, Oberlander never served in the German army, but was attached to the SS.)

The court goes on to say cabinet’s decision was not reasonable, since it failed to “examine and decide that Ek 10a was an organization with a single, brutal purpose and that Oberlander was complicit in the organization’s activities.”

Matas called that line of reasoning “strange.”

“What we have in Oberlander is in effect denial of the criminality of Einsatz groups” which had been established at Nuremberg, he said. What’s more, the judge is overturning Canadian law, which holds that misrepresenting key facts when immigrating is in itself grounds for inadmissibility. The appeal court, in effect, is saying that if you weren’t caught in a lie when you entered the country and you got away with it for 50 years, you can’t later lose your citizenship, he said.

Matas said Décary is the same judge who overturned the deportation of Leon Mugasera of Rwanda, who had made a radio broadcast that prompted murderous rampages in that African nation.

“What we have here is a judge [who is] creating a system of immunity for the most serious criminals we’ve ever seen in this country,” Matas said.

Landy agreed that Oberlander’s presence in Canada is a result of “fraud,” but he suggested the case did not serve as a precedent for other war crimes cases.