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Annual 7 Chapter 8
 

Ethnic Politics Canadian Style:
The Clash over Nazi War Criminals
by Earlean M. McCarrick

Harold Troper and Morton Weinfeld. Old Wounds: Jews, Ukrainians, and the Hunt for Nazi War Criminals in Canada. Chapel Hill and London: University of North Carolina Press, 1989. 434 pages.

After years of inaction, the Canadian government introduced and passed legislation in 1987 that made possible the trial of Nazi war criminals in Canadian courts. In 1988 the first trial of a Canadian for crimes committed during World War II -that is, prior to his immigration to Canada -started in Toronto. Harold Troper, a historian at the Ontario Institute for Studies in Education in Toronto, and Morton Weinfeld, a sociologist at McGill University in Montreal, have produced a study that probes the background for this revolutionary development. The dominant theme of their study is the clash between Canadian Jews and Ukrainian Canadians as each tried to control public policy on Nazi war criminals in their country. The former actively pressed the government to move against Nazi war criminals whereas the latter opposed any action. A recurrent chord is the response to Nazi war criminals in the United States, a response that energized Canadian Jews and outraged Ukrainian Canadians.

American and Canadian policies toward the immigration of Jews and toward holding Nazi war criminals accountable for their crimes, though divergent in timing and technique, followed roughly similar broad patterns. Both countries turned their backs on Jews seeking a safe haven from Nazi Germany during the 1930s and early 1940s, and only reluctantly accepted Holocaust survivors in the late 1940s, opting to submerge a relatively small number of Jews among the more numerous Eastern European displaced persons who refused repatriation to their Soviet-dominated homelands.1 While disinclined to relax their immigration laws to accommodate Holocaust survivors, both circumvented their immigration laws as they competed with the Soviet Union to entice Nazi scientists and Nazi intelligence experts.2 For over 40 years, both governments largely ignored allegations that Nazi war criminals had entered after World War II, and resisted demands for their expulsion. Both eventually responded: the United States in the late 1970s by creating the Office of Special Investigations (OSI) to institute denaturalization, deportation, and extradition proceedings against Nazi war criminaIs;3 Canada in the late 1980s by amending its criminal code to authorize trials of war criminals in its own courts.

Because the American government responded a decade before the Canadian government, because the prime targets of OSI's litigation were East Europeans, and perhaps because most American judges admitted documentary evidence and oral testimony from Communist countries (though some, particularly immigration judges, were skeptical and disparaged it), the American example served as a model of what to do for Jewish Canadians and what not to do for Ukrainian Canadians. In the end, however, Canada did not follow the American example of denaturalization and deportation. Instead, Canada changed its criminal law to permit the trial of war criminals in Canadian courts.

Troper and Weinfeld analyze the historic and contemporary animosities between Jews and Ukrainians that gave Canada's struggle to deal with Nazi war criminals a politically charged ethnic tinge. They focus not upon Nazi war criminals in Canada or upon governmental and legal processes to cope with them, but upon pressure group politics: the efforts of Jewish groups to force the government to deal with the problem and the efforts of Ukrainian groups to block such action. With access to the leaders and to the files of both communities, theirs is an evenhanded treatment -perhaps too evenhanded, since they document the activities and views of both groups from the perspective of each but offer little assessment of the merits of either. Nor is it clear whether either group had much of an impact on public policy. At the two most decisive stages in the evolution of that policy, namely, the appointment of a commission and the government's choice of a policy, the government apparently acted without consulting either interest group.

Troper and Weinfeld set the stage for their examination of the conflicts between the two Canadian communities by discussing the history of the tortured relationship between Jews and Ukrainians. They cover the early migration of Jews into the Ukraine to escape the pogroms in the West, the mid- seventeenth century pogrom that killed two-thirds of the Ukraine's Jews, the Polish and Russian occupations that fueled Ukrainian nationalism and animosity toward Jews, the Stalinistimposed famine of the early 1930s that starved millions in the Ukraine, and the Holocaust that murdered 90 percent of Ukrainian Jews.4 Behind every successive trauma, each saw the hand of the other. The most pronounced grievance for ethnic Ukrainians was rooted in the conviction that Jews were Communists and servants of Ukrainian oppressors, and thus responsible for - among other catastrophes - the famine of the 1930s. For Jews the certainty of Ukrainian collaboration with the German destruction of the Jews was a manifestation of historic antisemitism.

Ukrainians and Jews had settled in Canada long before either the famine of the 1930s or the Holocaust. The most broadly based and prominent organizations representing the interests of the two communities in general, and their views on the issue of Nazi war criminals in Canada in particular, are the Canadian Jewish Congress (CJC), the B'nai B'rith, and the Ukrainian Canadian Committee (UCC), though additional groups formed around the issue of Nazi war criminals.

Both communities actively entered the political arena on behalf of their European kin after World War II to convince their government to relax stringent immigration restrictions to permit the entrance of Europe's displaced persons (DPs). Jewish organizations were primarily interested in Holocaust survivors, and Ukrainian groups were concerned about their compatriots who refused repatriation to their Communistcontrolled homeland. Both groups were ultimately successful, though in differing degrees. Although most Jewish refugees had immigrated to Israel and elsewhere by the time Canada permitted their entrance and most DP slots were allocated to East Europeans, both European Jews and ethnic Ukrainians were among the displaced persons immigrating to Canada in the late 1940s.

The two Canadian communities first clashed over the issue of Nazi war criminals in connection with the admission of DPs, specifically over the immigration eligibility of members of the Galicia Division, a volunteer Ukrainian unit of the Waffen SS. Like the American Displaced Persons Act, Canadian law prohibited the entrance of Nazi war criminals, including members of the Nazi German armed forces. Members of the Galicia Division were thus denied entrance. Ukrainian Canadians, however, insisted that the division was not a Nazi entity but a nationalist unit of patriots dedicated to the expulsion of Soviet occupiers from their homeland. The Ukrainian Canadian Committee lobbied for their absolution and admission. To Jews, the division was a criminal SS organization responsible for the murder of Jews.

Caught off guard by Ukrainian lobbying and the government's sympathetic response to it, Jewish organizations launched a belated fight to prevent the entrance of division members. They were, however, unable to bear the government-imposed burden of proving that individual members of the division had personally committed atrocities against civilian populations because of race, religion, or national origins. The Ukrainian Canadian Committee was victorious in this first political confrontation; in 1950, the government lifted the ban. The conflict, however, heightened distrust between the two groups. The struggle to expel Nazi war criminals from Canada would create even greater antagonisms, despite periodic efforts of the two groups to reduce tensions.

While the presumed presence of Nazi war criminals in Canada had been of concern since the 1940s, a series of events from the 1960s through the 1980s combined to revive interest in the Holocaust and to intensify efforts to force the government to act: the Israeli trial of Adolf Eichmann, the debate over the statute of limitations in West Germany, the Arab-Israeli war, the refusal of the Canadian government to honor the Soviet Union's request for the extradition of two Nazi war criminals, the creation in the United States of OSI, the American extradition of Hermine Braunsteiner Ryan to West Germany, adoption of the Holtzman amendment by the United States Congress directing the deportation of Nazi war criminals, the television mini-series that portrayed the Holocaust, and the publication of the book None Is Too Many.5

Though Canada extradited one suspected war criminal, Albert Helmut Rauca, to West Germany in the early 1980s, efforts to convince the government to emulate American policy seemed no more successful than earlier attempts to prevent the immigration of members of the Galicia Division. Despite the access of the Canadian Jewish Congress to members of Parliament and to cabinet ministers, the Liberal government adhered to its long-held view that Canadian law offered no remedy against Nazi war criminals other than extradition, and that extradition was possible only to those countries with which Canada had an extradition treaty and whose system of justice and rules of evidence conformed to those of Canada - conditions that effectively ruled out Communist countries. Nonetheless, increasingly sympathetic responses by cabinet ministers and members of Parliament, and the prosecutor's determination in the Rauca extradition case that denaturalization and deportation were possible under Canadian law apparently convinced leaders of the Canadian Jewish Congress that an agreement with the Liberal government was near.

In September 1984 Brian Mulroney's Conservative Party replaced the Liberal government. Jewish organizations had little contact with the new prime minister, his party, or members of his government. Before they could remedy this lack of access, Mulroney acted without consulting either Jewish or Ukrainian organizations, nor apparently his own advisers or members of his government. In early 1985 he announced the appointment of a Commission of Inquiry on War Criminals to be headed by Quebec Superior Court justice Jules Deschenes. Since their research focuses on the two ethnic communities, neither of which had been involved and both of which were surprised by Mulroney's announcement, Troper and Weinfeld can only speculate upon the most intriguing questions raised by Mulroney's decision: why he acted at all, why he turned to a commission rather than to governmental officials knowledgeable about the issue, why he chose to create a commission with only one commissioner, why he appointed as commissioner one of the relatively few legal experts to question the legitimacy of the Nuremberg trials, and why he acted without prior discussions with those groups most likely to have strong views on the desirability of a commission, its personnel, procedures, and charge.

The Deschenes commission's charge was to determine whether there were Nazi war criminals in Canada, to examine the circumstances under which they had entered, and to recommend legal remedies to hold them accountable for their crimes. Neither Jewish nor Ukrainian organizations was pleased by creation of the commission, or its charge. The Canadian Jewish Congress in particular was uneasy; instead of the decisive governmental action its leaders believed forthcoming, it got only a commission to study the matter. The Ukrainian Canadian Committee was alarmed; its leaders perceived the commission as a potential source of danger, a mechanism to brand Canadian Ukrainians as Nazi war criminals.

The organizational voices of both communities prepared for action. The Canadian Jewish Congress directed its energies to devising legal arguments to convince the commission to recommend those kinds of remedies it had long urged upon the government. The Ukrainian Canadian Committee's principal objective was to convince the commission that Ukrainian suffering at the hands of the Soviets had been as great as that of the Jewish victims of the Nazi Holocaust and that governmental action against Nazi war criminals was both pragmatically unnecessary and politically undesirable.

Commissioner Deschenes and his two chief lawyers -whose French and English backgrounds reflected the Canadian ethnic configuration most familiar to Americans -were apparently unaware initially of the kind of ethnic tensions an inquiry into Nazi war criminals would provoke. But the commission adjusted to them. Commissioner Deschenes invited interested groups to apply for "standing," that is, not only the right to testify before the commission and to submit legal briefs to it -an option open to all interested parties -but also the right to crossexamine witnesses "on matters relevant to their interests."

Representatives of both groups responded to the invitation. Of the 14 groups applying for standing (all either Jewish or East European), the commission granted the requests of four: the League of Human Rights of B'nai B'rith Canada, the Canadian Jewish Congress, the Ukrainian Canadian Commission, and the Brotherhood of Veterans of the 1st Division of the Ukrainian National Army in Canada (the Galicia Division) -a neat balance of two groups from each community.

Jewish groups directed their arguments to legal considerations. They urged remedies of extradition, denaturalization, and deportation, as well as prosecution under the Canadian War Crimes Act of 1945 or under new legislation enacted specifically for the purpose of bringing Nazi war criminals to justice. They also recommended establishment of a unit like the Office of Special Investigations in the United States to undertake all legal actions against Nazi war criminals, and advocated the admissibility in court of documentary evidence and oral testimony obtained from Soviet and Soviet- bloc countries where appropriate.

Ukrainian groups, in addition to calling attention to the historic grievances and sufferings of Ukrainians at the hands of Communists in particular, opposed any action against Nazi war criminals. They argued that denaturalization and deportation proceedings would smear Ukrainian Canadians, that the use of Soviet-supplied evidence or the establishment of a unit similar to the American OSI were both unacceptable, and that extradition to any country other than West Germany was impermissible, as was prosecution under existing law. The only acceptable remedy, if one were deemed necessary, was a new law applicable to all war criminals, not just to Nazi war criminals; but there was no need for any remedy since the number of Nazi war criminals in Canada, if any, was small, and the potential for ethnic discord among Canadians was great.

Lobbying the commission was only part of the strategies of the two groups. Before, during, and after the commission hearings, both launched campaigns to influence public opinion and the government. The issue galvanized Ukrainian organizations in particular in a way that no other matter of concern to their constituents had done. Not only did they embark upon the kind of fund-raising operations they had never before attempted, but they also organized demonstrations to protest the American use of evidence obtained from the Soviet Union. Moreover, they also demonstrated to protest the American extradition to Israel of John (Ivan) Demjanjuk, a Ukrainian guard at the Treblinka killing camp, though they refused more than token participation in the Croatian community's protest demonstration against the American extradition to Yugoslavia of Andrija Artukovic, the Minister of Internal Affairs in the Nazi puppet state of Croatia.6

The public volume of the Deschenes report, dated December 1986, was released in early 1987.7 just as the commission's procedures had accommodated both ethnic communities, its findings and recommendations had something seemingly designed to placate both. To the first item of its charge, the question of whether there are Nazi war criminals in Canada, the commission responded in the affirmative (Ukrainian groups have never denied the possibility); but it also found that the numbers had been grossly exaggerated (Jewish groups had expressed little interest in numbers). It made a point of being especially critical of named individuals and groups who had made what it viewed as irresponsible calculations. Further, it explicitly exonerated the Galicia Division, veterans of which had been one of the four groups to whom the commission had accorded standing. In its synopsis of the over 800 unnamed individuals alleged to be Nazi war criminals it had investigated, it noted both the flimsy and unfounded allegations against most of them (and recommended that their files be closed), as well as the substantial evidence against a few (and recommended further investigation if the government decided that acquisition of evidence from Eastern-bloc countries was appropriate). In its confidential report, the commission recommended criminal prosecution, denaturalization, deportation, or extradition proceedings against 20 named individuals. There were relatively few Ukrainians on either list.

In response to the second item of its charge, the circumstances under which Nazi war criminals had entered Canada, the commission simply referred to the facts in the synopsis of the cases in its public report and to an unreleased study by one of its researchers.

In its response to the third item of its charge, possible legal actions against Nazi war criminals, the recommendations of the commission again offered something to both groups: amending the criminal code to authorize punishment of all war criminals (not just Nazi war criminals), denaturalization, deportation, and extradition. Though opposing creation of a centralized and specialized investigative and litigation unit similar to that in the United States, the commission recommended that evidence obtained from Communist countries be admissible in Canadian courts, but only under carefully limited circumstances.

The government simultaneously released the report and announced its choice from among the possibilities suggested by the commission: making all war crimes, not just those committed by the Nazis, a domestic crime. Such a proposal was introduced in Parliament and in September 1987 became law. Though the government chose the only remedy (other than extradition to West Germany) that Ukrainian groups found acceptable, again -as in the initial Mulroney decision to appoint a commission -neither Jewish nor Ukrainian organizations had any obvious impact on the government's choice; the government made its decision before the report was released and subjected to public debate. An exploration of what, if any, effect either or both groups had upon public policy would have given Old Wounds added spice.

Troper and Weinfeld's study provides an excellent account of how efforts to bring Nazi war criminals to justice in one country became embroiled in ethnic politics. However, it does not probe the impact of such politics; nor does it even explore the fundamental question of why opposition to such governmental action stemmed primarily from only Ukrainian Canadians, or why, in the broader context of ethnic politics, ethnic communities come to the defense of miscreants in their midst.

East European opposition to action against Nazi war criminals is perhaps a manifestation of a not uncommon ethnic phenomenon. For example, consider ethnic sensitivities in a quite different context, namely, in response to the conviction of ethnic Portuguese in the highly publicized Big Dan's gang rape case in Massachusetts. Several thousand Portuguese Americans held a candlelight vigil, not in sympathy with the victim, whom they advised to leave town, but in support of the criminals.8 Although that response might seem misguided to the disinterested observer-and the criminal justice system was unmoved by such a protest-many in this tightly knit ethnic community apparently viewed the trial and conviction as tainting the entire group. Such examples could be multiplied a thousandfold without exhausting the possibilities.

While in Canada ethnic Ukrainians, the largest East European ethnic group and the best organized, protested, it is perhaps not unexpected that East European ethnic communities would oppose belated fulfillment of the Moscow Declaration pledge by the Allies to bring the "Hitlerite Huns" to justice.9 In part, the reason may be that members of such communities are likely to be strong anti-Communists who refuse to accept that prosecutors must collect documentary and testimonial evidence from Communist countries, since many of the Nazi crimes were committed on territory within the Soviet bloc. Strong anti-Communists of whatever stripe are likely to oppose on principle the reliability of such evidence, even though its admissibility in the courts of Western democracies is determined by Western, not Soviet, standards.

More significantly, however, East European emigres are the most likely targets of attempts to eject Nazi war criminals. Since ethnic Germans were not eligible for DP status, it was Nazi collaborators, not German Nazis, who were able to conceal their past and immigrate as displaced persons. And most DPs were from East European countries (such as Lithuania, Latvia, Estonia, Byelorussia, and the Ukraine), in which the Nazi German occupying forces had relied heavily upon indigenous populations to carry out their policy of genocide.10 Any governmental policy that potentially affects members of an identifiable group adversely, however small the percentage may be and however just the policy, is likely to raise concerns that the group will be tainted.

Such quibbles about unexplored territory aside, Troper and Weinfeld have rendered a valuable service by dissecting and reporting dispassionately the ethnic clash over Nazi war criminals in Canada.

NOTES

1. Irving Abella and Harold Troper, None Is Too Many: Canada and the Jews of Europe, 1933-1948 (Toronto, 1982; New York, 1983); Leonard Dinnerstein, America and the Survivors of the Holocaust (New York, 1982); and David S. Wyman, The Abandonment of the Jews: America and the Holocaust, 1944-1945 (New York, 1984).

2. On scientists, see Tom Bower, Paperclip Conspiracy: The Hunt for the Nazi Scientists (Boston, 1988); on intelligence experts, see Christopher Simpson, Blowback: America's Recruitment of Nazis and Its Effects on the Cold War (New York, 1988).

3. Allan A. Ryan, Jr., Quiet Neighbors: Prosecuting Nazi War Criminals in America (San Diego, New York, and London, 1984); Henry Friedlander and Earlean M. McCarrick, "Nazi Criminals in the United States: The Fedorenko Case," SWC Annual 2 (1985): 63-93; Friedlander and McCarrick, "Nazi Criminals in the United States: Denaturalization After Fedorenko," ibid. 3 (1986): 47-85; and Friedlander and McCarrick, "The Extradition of Nazi Criminals: Ryan, Artukovic, and Demjanjuk, " ibid. 4 (1987): 65-98.

4. Troper and Weinfeld, Old Wounds, Chap. 1. The book was first published in Canada in 1988 by Viking Press.

5. A scholarly documentation of the Canadian refusal to admit Jewish refugees, this work, according to David S. Wyman ("Refugees and Survivors: Reception in the New World," SWC Annual 2 [1985]: 194), "caught fire among the reading public of Canada and became one of the country's most widely discussed books of 1982-1983."

6. See note 3 on the extradition of Demjanjuk and Artukovic.

7. Commission of Inquiry on War Criminals, Report, Part I: Public (Ottowa, 1986).

8. "Defendants' Supporters Hold Candlelight Vigil, " Boston Globe, 23 Mar. 1984, p. 10. So-called because the crime was committed on a pool table in a New Bedford, Massachusetts, bar called Big Dan's, the trial received extensive coverage by both electronic and print media, and aroused concern among ethnic Portuguese that it was a slur on their community even though the victim, the prosecutor, and some of the jurors were Portuguese Americans.

9. Moscow Declaration, 1 Nov. 1943. Text in Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 [Green Series], 14 vols. (Washington, 1950-1952), 1:viii.

10. Native non-German anti-Communists provided the manpower for the paramilitary units that aided the SS in rounding up all those persons targeted for destruction and that served as the SS auxiliaries essential for the smooth operation of the killing centers. In Latvia, to take one example, the job of tracking down, rounding up, confining, killing, or deporting to killing centers all of the Jews, Gypsies, and Communists in the entire country was entrusted to about 170 Germans; to accomplish the tasks assigned to it, the SS employed Latvian paramilitary units. See In re Laipenieks, No. A- 11 937 435 (Immigration Court, San Diego, June 9,1982; BIA, Sept. 8, 1983), for the expert testimony, and the German documents introduced and used by the Board of Immigration Appeals. Similarly, only 20 to 30 Germans were assigned to the Treblinka killing center, where almost a million men, women, and children were murdered; the SS relied on about 90 to 120 Ukrainian volunteer auxiliaries to kill the arriving multitudes and to guard the inmate work force. StA Dusseldorf, Indictment of Kurt Franz, 8 Js 10904/59, 29 Jan. 1963; LG Dusseldorf, Judgment against Kurt Franz, 8 1 Ks 2/64, 3 Sept. 1965; StA Dusseldorf, Indictment of Franz Stangl, 8 Js 1045/69, 29 Sept. 1969; LG Dusseldorf, Judgment against Franz Stangl, 8 Ks 1/69, 22 Dec. 1970. See also Adalbert Wickerl, NS- Vern ich tungslager im Spiegel deutscher Straffirozesse (1977), pp. 197-242. For a full discussion of the use by the Germans of indigenous paramilitary units to impose Nazi terror, see StA Hamburg, Indictment of Viktor Arajs, 141 Js 534/60, 10 May 1976; LG Hamburg, Judgment against Viktor Arajs, (37) 5/76, 21 Dec. 1979.

Chap 9

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