TORONTO — Helmut Oberlander and his wife disembarked from the Arosa Kulm in Quebec in 1954 and began building a new life together.
The couple settled in Waterloo, Ontario, where Oberlander became a successful real estate developer. They started a family and gained Canadian citizenship in 1960. War World War II appeared to be in the rearview mirror. But decades later, the past would come back to hover over them.
During the war, Oberlander served as an interpreter for a roving Nazi death squad that killed at least 20,000 people in the German-occupied eastern territories. Canada stripped him of his citizenship 20 years ago for concealing those activities from immigration authorities. Now, prosecutors are in a race against time to deport the 97-year-old, whose removal case is the country’s last dating to World War II.
On Tuesday, Oberlander’s legal battle entered a new — and potentially final — phase, when the Federal Court of Canada held a hearing on his motion to end the deportation proceedings because of an “abuse of process.”
Justice Denis Gascon reserved his decision. Oberlander says he was conscripted and never killed anyone. He says he spent his time doing menial tasks such as shining officers’ boots and guarding grain barges. He has never been charged with a crime.
“Mr. Oberlander has been unjustly persecuted for 24 years by the Government of Canada,” Oberlander’s family said in 2019. “The Government of Canada has never produced a shred of evidence against Mr. Oberlander. No such evidence exists because he has never directly or indirectly contributed to any crime.”
Critics say the late-starting and much-delayed effort to deport Oberlander illustrates Canada’s poor record of bringing accountability for the atrocities of the 20th century. Irwin Cotler, chair of the Raoul Wallenberg Center for Human Rights in Montreal and a former Canadian justice minister, has followed the proceedings closely.
“The Oberlander case must be seen against the backdrop of a failed policy that failed to bring war criminals to justice to begin with,” he said.
Fears that Canada was a haven for Nazis ebbed and flowed after the war. Outcry surged in 1985 amid reports that scores of Nazis, including Josef Mengele, the doctor who conducted horrific medical experiments on prisoners at death camps, had slipped into Canada, or tried to. Prime Minister Brian Mulroney tapped Judge Jules Deschênes to chair a commission to investigate.
The panel reported in 1986 that it had established “beyond a reasonable doubt” that Mengele had never entered Canada, and dismissed as “grossly exaggerated” estimates that put the number of Nazi war criminals in the country in the thousands. But it also said that Canada, like many Western peers, had “devoted not the slightest energy” to their search or prosecution.
It traced that apathy to 1948, when Britain dispatched a secret telegram to several dominions, including Canada, suggesting that as many cases as possible involving suspected Nazi war criminals be “disposed of” by the end of August.
“In our view, punishment of war criminals is more a matter of discouraging future generations than of meting out retribution to every guilty individual,” Britain’s postwar government said. It asked for comment; Canada said it had none.
Cotler, a lawyer, represented the Canadian Jewish Congress as counsel before the commission.
“Those of us advocating for bringing Nazi war criminals to justice knew about the government’s inaction,” he said. “We didn’t know the extent to which there had been complicity in that inaction.”
Oberlander, an ethnic German, was born in southeastern Ukraine. Fluent in German, Russian and Ukrainian, he was 17 years old when he became an interpreter with the Einsatzkommando 10a, a subgroup of the Einsatzgruppen death squads, in 1941.
“Helmut Oberlander was never a Nazi and never subscribed to the Nazi ideology,” his daughter Irene Rooney wrote in the Waterloo Regional Record in 2015. ” … We should never forget the atrocities that happened in the Second World War. However, holding Helmut Oberlander responsible for the crimes of the Nazi regime is intolerable.”
Oberlander was questioned by German officials in Toronto in 1970 in a separate war crimes investigation. He told them that he didn’t know his unit’s name or that it was responsible for executing Jews.
In 2000, Federal Court of Canada Judge Andrew MacKay said there was no evidence he took part in those atrocities, but it was “implausible” that he was unaware of EK 10a’s name. He found that Oberlander had obtained Canadian citizenship “by false representation or by knowingly concealing material circumstances.”
The federal cabinet revoked Oberlander’s citizenship in 2001, 2007 and 2012. He won appeals of those decisions. The cabinet revoked Oberlander’s citizenship a fourth time in 2017, and it was upheld.
“The Applicant’s work as an interpreter facilitated the screening process for executions and served as an important step toward the realization of EK 10a’s criminal purpose,” Federal Court Judge Michael Phalen wrote in 2018.
An admissibility hearing before the Immigration and Refugee Board, which could deport Oberlander, was scheduled last month. It appeared to be a final chapter in the case, but was temporarily stayed after a judge agreed that Oberlander’s hearing disability and the resulting communication difficulties — made worse by the pandemic — compromised “procedural fairness.”
Deschênes, the chair of Mulroney’s commission, listed remedies for dealing with alleged war criminals: Extradition; criminal prosecution, which would require amendments to the law; and denaturalization and deportation. The last of these should be a “last resort,” he wrote, because it’s “cumbersome” and doesn’t address the “substantive issues of war crimes” — it merely sends the suspect to another country.
The commission drafted a list of cases. It recommended that most be closed because suspects had died or moved, or there was insufficient evidence. It marked 218 others for further investigation and recommended Ottawa take “urgent action” in 20 cases. No names were listed in the public report.
Oberlander’s name appeared in a secret report, obtained through a public records request, among the urgent action cases. The commission said allegations against him first appeared in communist publications in the 1960s. It reviewed records — photos, service records, sworn witness statements — from West Germany, Israel and the United States. They confirmed that Oberlander was an interpreter for EK 10a. No witness “[recalled] his participating in particular shootings,” the commission said.
One witness, Leo Maar, another interpreter in the unit, recalled an operation in which Jews were stripped of valuables in a house. Oberlander interpreted for a young girl who was crying, Maar told the Munich prosecutor’s office, and was told to tell her that she was Russian, not Jewish, and free to go.
The District Court of Munich closed Oberlander’s file in 1970 due to “insufficient evidence” that he was a direct participant in war crimes.
The commission said it was “improbable” Canada would find other evidence against him and advised against prosecution. But it did recommend revoking his citizenship for failing to disclose his membership in those groups to immigration officials.
Oberlander’s lawyers say in filings that the government never disclosed the “highly probative” secret report and its recommendation against prosecution, which they called an abuse of process.
Lawyers for Canada’s Justice Department argued at Tuesday’s hearing that the report’s findings were not “exculpatory” and that allegations of bad faith were “unfounded.”
Ottawa passed war crimes legislation in 1987. But in 1994, the Supreme Court of Canada upheld the acquittal of a former Hungarian gendarmerie captain accused of deporting thousands of Jews to concentration camps, allowing the defense of “obedience to superior orders” in some circumstances.
That made prosecuting alleged war criminals “impractical,” according to the Justice Department, so Canada shifted its strategy to revoking citizenship and deporting those who hid their wartime activities from officials.
Justice Department spokesman Ian McLeod said Canada has taken action in 27 cases tied to World War II since the 1980s. Ten resulted in revocations of citizenship; four criminal prosecutions were unsuccessful. Several suspects died before proceedings ended, were deported or left voluntarily.
Canada replaced its war crimes law in 2000. Its program now focuses on contemporary conflicts, including in Rwanda, Iraq and the former Yugoslavia.
Fannie Lafontaine, a law professor at Laval University, said the law was supposed to “revive” criminal prosecutions, but has fallen short of expectations. It has led to two prosecutions, both linked to the Rwandan genocide. One defendant was acquitted.
In 2016, the Justice Department published an evaluation of the war crimes program based on interviews with people involved in Canada and around the world. They praised its admissibility screening processes, but some questioned the country’s preference for cost-effective immigration remedies over prosecutions.
The Justice Department reported that the program had operated with the same $12.4 million annual budget per year since 1998 and was showing signs of “financial strain,” impacting its ability to carry out prosecutions.
McLeod said the program prioritizes cases based on “available resources” and factors such as the gravity of the offenses, the availability and accessibility of evidence and the presence of diaspora groups in Canada that might have been victims.
Since 2011, Germany has been reopening old cases and prosecuting low-level Nazi officials such as guards and switchboard operators as accessories to a murderous system even if there’s no evidence linking them directly to specific killings.
“This whole system — the concentration camps and the prisoner of war camps and the Einsatzgruppen — would not have been possible without a lot of people that were working there,” said Thomas Will, a German prosecutor.