Court ruling cuts both ways

Saturday May 6, 2000
Philip Jalsevac and Jeff Outhit

When Federal Court Justice Andrew MacKay handed down his ruling on Helmut Oberlander in February, his verdict was a double-edged sword. On the one hand, it dismissed Ottawa's original allegation that Oberlander had been involved in war crimes.

On the other hand, it cut sharply into the credibility of the 76-year-old Waterloo man, saying Oberlander's testimony revealed a "pattern of less than full acknowledgment of his wartime role."

That's the key reason he may be stripped of his Canadian citizenship and deported, MacKay wrote in his Feb. 28 ruling.

"In the final analysis, I simply do not believe his evidence . . . because there are many inconsistencies or implausibilities in his recollection of past events and circumstances on different occasions and because I conclude that on some other occasions he has avoided revealing his involvement in events," the judge wrote.

MacKay ruled that, on a "balance of probabilities," Oberlander failed to disclose his record with an infamous Einsatzkommando in the Second World War when applying to come to Canada.

The murderous unit of the Nazi regime was part of a larger Einsatzgruppe that was responsible for the deaths of 91,000 civilians, mostly Jews, but also Gypsies, communists and others.

Ottawa originally claimed that Oberlander participated in the executions. However, MacKay found there was no evidence Oberlander played a role "in any of the atrocities committed against civilians by Ek 10a."

At the same time, the judge raised large questions about Oberlander's truthfulness.

In particular, MacKay contrasts what Oberlander says today about his war years with what he told west German investigators in 1970.

At that time, the Germans were investigating members of Ek 10a for war crimes. They closed their probe of Oberlander for lack of evidence.

Following are some of the key findings in MacKay's ruling:

At his hearing in 1998, Oberlander said he spoke only to a person he believed to be an immigration officer when interviewed in August, 1953 in Karlsruhe, Germany, and was never asked about his wartime record

But MacKay gave more weight to the evidence of two former RCMP security officers who served overseas and to William Kelly, the liaison officer in London in charge of security screening in post-war Europe.

"Clearly, even if they were not at Karlsruhe at the time here significant, they were experienced in the operating process for considering immigrant applicants in the 1950s," MacKay wrote.

Their evidence, he added, "was that a security officer always conducted an interview" to check if the person was admissible. And if Oberlander had truthfully answered their questions about his war service, he would have been rejected.

On Oberlander's version of events, the judge ruled: "In the final analysis, I simply do not believe his evidence on this key issue."

Oberlander claims not to have learned that his unit was killing Jews until he had served with it for a period of time in 1942. This contradicts his 1970 statement to German investigators that he never knew his unit was killing Jews.

MacKay found it "not worthy of belief" that it took Oberlander so long to grasp its activities.

"He could not have been unaware of the function of the unit," MacKay wrote. "In all the circumstances, it is not plausible that he remained ignorant of the execution of Jews and others, as a major activity of the men with whom he served."

Oberlander testified he did not know the term Einsatzkommando until interviewed by German authorities in 1970. The judge called that "highly implausible."

MacKay cited a copy of an order stamped "kommando 10a" in 1942 in preparation for an operation against a band of partisans, naming Oberlander as one of the interpreters to be used.

"Mr. Oberlander must have seen unit orders of this sort on numerous occasions," the judge said.

MacKay found it "implausible" that Oberlander could not recall the names of the commanders of the unit.

In 1970 Oberlander denied receiving a war medal for his service with the death squad. In 1998 he recalled the medal he received in 1943 for saving two wounded German soldiers.

In 1970 Oberlander denied taking part in interrogations and said he had no rifle and no function beyond interpreting. He later acknowledged he took part in anti-partisan activities, was armed with a machine pistol, and was present as an interpreter during interrogations.

When interviewed by RCMP officers in 1995, Oberlander said he could not recall filling out what was called an O.S.8 application form to emigrate to Canada. However, MacKay noted: "In these proceedings . . . his recollection is clear that he filled out such a form (after he was shown one)."

Oberlander told the Mounties in 1995 that he was asked in Karlsruhe about his rank and whether he served in the German army. At his 1998 hearing, however, he denied he was asked about his military service.

In 1970, Oberlander denied knowing of an alleged order requiring all unit members to participate in an execution. In the 1995 interview with the RCMP, he said older men in the unit (excluding him) were required to participate in executions.

MacKay also cited a number of documents -- including his discharge certificate after a short stint with the army near the end of the war and a registration form completed in 1947 in Germany -- which "demonstrate a pattern of less than full acknowledgment of his wartime role, with no reference to the SD (security service), which he now acknowledges he served."

Oberlander also lost out when MacKay rejected the testimony of two key defence witnesses.

MacKay gave "little weight" to the evidence of Oberlander's wife, Margret, who said she accompanied him at the immigration interview. The judge found her credible but said she could not be regarded as an independent witness "because she and her husband discussed what happened at Karlsruhe in 1953."

Peter Bufe, who served in the Luftwaffe, testified that he also applied at Karlsruhe to come to Canada in late 1951 or early 1952 and was never asked about his wartime service.

But MacKay dismissed his evidence as having "no weight," primarily because "it provides no direct evidence of the process followed a year or more later when Mr. Oberlander was interviewed."

The only criticism MacKay had of the government side was the surprise visit by the two RCMP officers to Oberlander's home in 1995. He noted Oberlander, on at least four occasions, expressed concern about consulting a lawyer, "but the officers continued their questioning and only after the interview did they suggest it might be wise for him to contact a lawyer."

He added that Oberlander had not been cautioned that anything he said might be used against him.

"The process smacks somewhat of unfairness," MacKay said. However, he admitted the Mounties' testimony, saying "it cannot be ignored."

As for his wartime activity, MacKay ruled that Oberlander was not a member of the SS (Schuzstaffel) or its sub-group, the SD. But he found him to be a member of the Einsatzkommando as an auxiliary interpreter.

"Its purposes he served, even if that service were not willingly given," he concluded.

However, MacKay ruled Oberlander's testimony and the evidence before the court "does not include any activity directly involved with Ek 10a's worst and most heinous operations."

For that matter, he found there was no evidence of "his involvement in aiding and abetting others in the commission of criminal activity."

On another point, MacKay cited the testimony of John Huebert and Nikolai Sideronko, who also served in Ek 10a. Both witnessed civilian executions but did not see Oberlander or any auxiliary interpreter at such times.

The absence of such interpreters "may be explained by the inclusion in the unit of Russian-speaking Germans who came from Germany, regular police force members who also served as interpreters," the judge wrote.

MacKay also pointed out that the only direct evidence about Oberlander's immigration interview came from Oberlander himself, since any documentation had been destroyed by the government in 1982 and there were no witnesses with first-hand knowledge of his application.

He also found the immigration application form Oberlander was asked to complete asked no questions about his wartime service.

Nevertheless, the judge concluded that Oberlander entered Canada "by false representation or by knowingly concealing material circumstances."

Defence lawyer Eric Hafemann disputes the decision and will make counter arguments to the federal cabinet, which will decide whether to revoke Oberlander's citizenship as a first step to deportation.

Hafemann said it defies logic to say Oberlander was a member of Ek 10a but not the SD, because one could not possibly be one without being the other at the same time.

As for Oberlander's conflicting testimony, Hafemann said his client made statements under very different sets of circumstances over the years.

When questioned by German authorities, he was ordered not to incriminate himself and to confine his testimony to only those matters of which he had first-hand knowledge.

At the 1998 hearing, Oberlander had years to scour his memory and records to more accurately reconstruct events, Hafemann said.

It is not known when the cabinet will make its decision, but Hafemann has until May 15 to make his submissions.

Conflicting Accounts

"I know nothing about the execution of Jews or mentally and physically disabled people by my unit. l did not observe anything myself. And no one told me anything about that at the time." - Helmut Oberlander, 1970

"There was always (an) advanced unit which arrived first in a city which looked after the settlement of Jews ... I guess after a while I did find out they were killed."

- Helmut Oberlander, 1998

Canada vs. Oberlander: Key Dates

Jan. 27, 1995: Ottawa serves Oberlander with a notice of revocation of citizenship, alleging he failed, when applying to come to Canada, to disclose his membership in the SD (security service) and Einsatzkommando and his "participation in the execution of civilians."

Within the prescribed 30 days, Oberlander asks that the matter be heard in the Federal Court of Canada.

A series of lengthy pre-trial motions and arguments ensue, which are overtaken by claims of interference in the judiciary by a senior Justice Department official. An application is subsequently made to stay the proceedings.

July 4, 1996: Trial division of Federal Court agrees to the stay but the ruling is later overturned by the appeal division.

Sept. 25, 1997: The Supreme Court of Canada upholds the appeal decision, ruling the interference was improper but not serious enough to warrant halting the case against Oberlander and two other accused.

August, 1998: A hearing into the merits of Oberlander's case finally begins, concluding just before Christmas.

Feb. 28, 2000: Justice Andrew MacKay releases his decision, which finds there is no evidence Oberlander was involved in war crimes, but that he nevertheless failed to disclose his membership in the Einsatzkommando.

March 28, 2000: An application is filed with the Federal Court seeking an order to prohibit the cabinet from revoking Oberlander's citizenship. At the same time, Oberlander's lawyer works on separate submissions to the cabinet. It is not known when the cabinet will make its decision.