(Revised remarks prepared for the Law Society of Upper Canada, Osgoode Hall, Toronto, Ontario, 17 April 2012) by David Matas
This panel is titled “Commemoration of Holocaust Remembrance Day 2012, Remembrance, Reconciliation, Restitution: Is there a way to right the wrongs of the past?” The wrongs of the past to which the title refers are the Holocaust. The question the title of the panel asks is whether there is a way to right the wrongs of the Holocaust.
The title provides a suggested answer to the question, that there are three ways to right the wrongs of the past. Those three ways are remembrance, reconciliation and restitution.
My first reaction to the subject matter of this panel is that there is no way of righting all the wrongs of the Holocaust. The killing of six million innocents can never be made right.
I do not suggest we thrown up our hands in reaction to the Holocaust. On the contrary, the Holocaust tells us much we can and should do. But we should be under no illusion. Even if everything we try to do gets done, the Holocaust will never be made right.
What then is the value of reconciliation, restitution or remembrance? Though not all wrongs of the Holocaust can be made right, some can. Restitution for the survivors and remembrance of what happened have an intuitive sense. Individual survivors and the surviving community should be compensated as best they can for what they suffered. We should never forget what happened. Forgetting would be killing the victims a second time, murdering their memories.
However, the very idea of reconciliation for the Holocaust gives one pause. Who is to be reconciled with whom about what? Are the victims expected to reconcile with their murderers about the Holocaust? The very suggestion shows its impossibility. The victims are dead. They cannot reconcile with anyone.
Are those not killed in the Holocaust supposed to reconcile with the killers about the murder of others? Again the question itself raises its own answer. We have not been given any authority by the murdered victims to reconcile with their murderers on their behalf. For us to reconcile with the murderers would be presumptuous. As well, some crimes are so awful that there is simply no scope for reconciliation. Reconciliation for mass murder is a form of impunity. Reconciliation for one mass murder is a license for the next.
Reconciliation as a concept became fashionable after the Truth and Reconciliation Commission of South Africa reported in October 1998. That Commission, chaired by Archbishop Desmond Tutu, dealt with the crime of apartheid.
As awful as apartheid was, the bulk of its victims survived. The South African report addressed reconciliation of the victims who survived with their victimizers, not reconciliation of the dead with the living.
As well, South Africa distinguished between reconciliation and amnesty. Amnesty was not permitted for the most heinous crimes.
Yet, it is impossible to say of the Holocaust that a part of it was a most heinous crime and a part was not. It was all heinous in the extreme.
Third, reconciliation in South Africa occurred in a specific political context. The perpetrators were in power. Bringing them systematically to justice, however ideal it might seem, was a political impossibility. If the prospects of systematic justice were real, the white minority which ruled South Africa would have never have given up power.
We have no such political context with the Holocaust. Nazi Germany was unconditionally defeated in World War II. We did not have to negotiate Nazis out of power with promises of reconciliation. There is certainly no political need for reconciliation now.
We are seventy seven years from the defeat of Nazi Germany. Most of the perpetrators have by now died. It made little sense for reconciliation immediately after the war when the victims were dead and the perpetrators were alive. It makes even less sense now when both perpetrators and victims alike are now gone.
So, is reconciliation just a trendy term picked up from another context and applied inappropriately to the Holocaust? In spite of everything I have just said, I would suggest not. There is a scope for reconciliation, not between the murderers and the victims, nor between the murderers and those who survived but between Canada and Canadians.
The Canadian state which existed during the Holocaust continues to this day. There has been no regime change between then and now. Legally, the Canadian state which existed then is the same legal entity which exists now. In law, the Government of Canada today is responsible for what the Government of Canada did yesterday.
When we consider what Canada did during the Holocaust, the record is bleak. Canada, our home and native land, during the Holocaust was antisemitic. It denied asylum to Jewish refugees fleeing persecution and afterwards gave a haven to Nazi war criminal fugitives from justice. It was easier to get into Canada after World War II if you were a Nazi war criminal than it was to get into Canada during World War II if you were a Jewish refugee. So there is a need and scope for reconciliation, not with the murderers for the Shoah, but with the Canadian state for what the state did and did not do about it.
How do we do that? How do we reconcile ourselves today with what Canada did yesterday? I have eight specific suggestions to make.
Revoke the citizenship of Vladimir KatriukIt is far too late to make right the wrong of giving a haven to Nazi war criminals in Canada. Too many have died natural deaths in Canada either before cases were brought against them or while they were going through the courts. Nonetheless, there remains still a couple of cases where action can be taken.
One of these is the case of Vladimir Katriuk. The Federal Court held in January, 1999 that Katriuk had lied his way into Canada, hiding his Nazi past. Mr. Justice Nadon found that Katriuk was a member in the Schutzmannschaft Battalion 118 and participated in its activities in Belarus, including antipartisan operations. In spite of that, the cabinet in May 2007 decided not to revoke the citizenship of Katriuk.
Justice Nadon in 1999 observed that he was not prepared, on the evidence before him, to conclude that Katriuk committed or participated in the commission of war crimes. This observation may have played a part in the decision of the cabinet not to revoke the citizenship of Katriuk. The League for Human Rights of B’nai Brith Canada challenged in Federal Court the 2007 cabinet decision not to revoke the citizenship of Katriuk. The League argued that the statute did not give the cabinet power to do this once the Federal Court had found he entered by Canada by false representation or fraud or by knowingly concealing material circumstances. The Federal Court ruled in June 2009 in favour of Katriuk. The Federal Court of Appeal affirmed that decision in November 2010.
Since then new evidence about Katriuk has emerged. In March, 2008, the Belarus government released the records of the 1986 trial of Hryhorii Vasiura for his participation in the March 1943 murder of all 149 residents of the village of Khatyn. These records show that Vladimir Katriuk was a commander of a platoon in the battalion which perpetrated the massacre and that Katriuk personally opened fire with a machine gun on the defenceless villagers.
In June 2011, B’nai Brith Canada wrote to the Government of Canada requesting that the Government of Canada reconsider its decision not to revoke the citizenship of Vladimir Katriuk in light of subsequently discovered evidence. We have yet to receive an answer to that request.
Revoke the citizenship of Helmut OberlanderThe Government began revocation of citizenship proceedings against Helmut Oberlander January 27, 1995, alleging that he had obtained citizenship by false representation or fraud or by knowingly concealing material circumstances, through hiding his complicity in Nazi war crimes. The Supreme Court of Canada remarked in 1997 that the delays in this case and others were “inordinate and arguably inexcusable”; that the dilatoriness “defies explanation”.
The Federal Court found against Oberlander on February 28, 2000. The Federal Court held that Oberlander was a member of Einsatzkommando 10a, a unit that systematically carried out mass executions of civilians, particularly Jews, in the occupied Soviet Union.
The Governor in Council revoked the citizenship of Oberlander August 21, 2001. In May 2004, the Federal Court of Appeal quashed the revocation of Oberlander’s citizenship for procedural reasons.
The cabinet revoked the citizenship of Oberlander a second time May 17, 2007. The Federal Court of Appeal quashed the revocation a second time November 17, 2009, again on procedural grounds. The case of Oberlander has been now pending before cabinet for a third decision for almost three years. There is no excuse for sitting on this case.
Open up Nazi war crimes archivesNazi war crimes archives must become accessible. Though many Nazi war criminals in Canada did not have to account to justice, every Nazi war criminal who was in Canada should account to history. The Task Force on International Cooperation on Holocaust Education Remembrance and Research asserts in its Stockholm Declaration of 2000 the principle of opening up archives bearing on the Holocaust to researchers. Canada is a member of the International Task Force. Its National Task Force in November 2011 asked the Government of Canada to establish a central registry for all Nazi era war crimes files of the Government. There should be no need to go to several different registries in a variety of departments to seek the relevant information.
Each catalogue entry in the central registry should indicate the name of the individual to whom the file relates. Where the person has died, the catalogue entry should state the date of death.
The registry should be kept up to date. The date of death of any person for whom there is a file should be entered into the catalogue of the registry as soon as the Government of Canada becomes aware of the date of death.
Release the Rodal reportThe Commission of Inquiry on War Criminals headed by Mr. Justice Jules Deschênes hired Alti Rodal to write a report on the history of war crimes efforts in Canada. This report is available through Access to Information with many deletions all of which are unjustifiable. Attempts to get the full uncensored report have been met with either refusals or silence.
Ask Russia to release documentation about Raoul WallenbergRaoul Wallenberg is Canada’s first and was for sixteen years our only honorary citizen. As a Swedish diplomat in Budapest in the closing days of World War II, he saved tens of thousands of Jews from the Holocaust. When the Soviets took over Hungary, he disappeared into its gulag. His fate has never been satisfactorily explained.
For decades the Soviet Union and then Russia claimed that Raoul Wallenberg died on July 17, 1947 in Moscow’s Lubyanka prison. Yet, in November 2009, Russian FSB archivists, in a formal reply to questions from researchers, stated that “with great likelihood” Wallenberg became “Prisoner No. 7” in Moscow’s Lubyanka prison in 1943 and that “Prisoner No. 7” had been interrogated on July 23, 1947, that is to say, six days after the date of his supposed death.
Russian officials since have not granted researchers access to a variety of key files and materials that would allow a determination of Wallenberg’s fate. These include• procedural details for the assignment of numbers to prisoners under investigation;• the complete July 23, 1947 Lubyanka interrogation register;• the letter Minister of State Security Viktor Abakumov wrote to Soviet Foreign Minister Vyacheslav Molotov on July 17, 1947 about Raoul Wallenberg; • Soviet foreign intelligence records from Hungary and Sweden for the period 19431945 which would shed light on the reasons why Soviet authorities decided to arrest Wallenberg; • uncensored access to investigative files of a number of prisoners closely associated with Raoul Wallenberg in captivity; • correspondence records between the Soviet security services and the Soviet leadership, such as the Central Committee and the Politburo, which would reveal how Soviet leaders handled Wallenberg’s file before and after 1947.
Canada raised with Russia the issue of archival access to unravel the Wallenberg mystery at the level of Ministers of Foreign Affairs at the time that Bill Graham was the Minister and got a response that in substance said that the relevant files were not within the control of that Ministry. If Canada is to advance this dossier, the issue will have to be raised at the head of state level. To avoid Russia’s putting off such a request as a Swedish Russian bilateral matter, something I have seen in the past, any Canadian request should be made in cooperation with Sweden.
Engage in an effective effort to combat hate speechOne of the lessons of the Holocaust is the need for an effective effort to combat hate speech. Though the Weimar Republic had laws against hate speech, they did not work. If eliminationist antisemitism had been effectively combatted in the years before 1933, the Holocaust would never have happened.
Canada, both federally and provincially, has engaged in a plethora of efforts to combat hate speech. The laws suffer from two extremes. Some laws, the criminal laws, are almost dead letters, rarely invoked. Other laws, the civil human rights laws, are too easily used, indeed abused, harassing innocents and threatening freedom of speech.
Bill C-304, currently before Parliament, attempts to deal with the abuse of the federal human rights telephone and internet jurisdiction over hate speech by abolition of the jurisdiction. Though the Bill was introduced privately by a Member of Parliament, the Government is supporting it and it will become law.
Yet, there is a need for a civil legal remedy for hate speech; the abuse can be controlled, without abolition of the remedy, through legal reform. In particular, civil human rights laws should • ensure full disclosure to the target of the complaint, • not allow for the making of anonymous complaints, • give the power to award costs to the target of a complaint,• require the complainant to choose only one forum or venue, and• screen cases even where commissions do not conduct the cases.
The coming abolition of the federal jurisdiction should not serve as a model for the provinces. It should be a warning though that the provincial laws cannot be left as they are or they too will become vulnerable to campaigns for their abolition.
It is unsatisfactory to abolish a civil remedy open to abuse and leave standing only a criminal remedy which is almost never invoked. Obstacles to use of the criminal law need to removed. Reforms of the criminal law should include • banning racist groups, • giving courts the authority to allow impact statements from victim groups targeted by hate speech, • including hate motivation as a constituent element of aggravated offences rather than just an aggravating factor in sentencing,• removing the defense of truth from the offence of incitement to hatred, • setting out guidelines for the exercise of the consent of the Attorney General for prosecution, and • legislating a specific offence of Holocaust denial.
Combating antisemitism does not just mean combating the myths that were in the minds of Nazi killers at the time of the Holocaust. Antisemitism is a transmuting virus; Holocaust denial is one of its modern forms. To remain true to the combat against antisemitism, we have to stand against whatever form it takes.
Protect refugeesProtection of refugees is a lesson which the Holocaust should teach us. Since 1956 and the Soviet invasion of Hungary, Canada has often been better than others in the protection of refugees. However, it has been far from ideal. The Canadian refugee protection system now both overseas and inland suffers from a myriad of defects. As well, amongst the reform proposals now before Parliament, some would make matters better; others would make matters worse.
Overseas, Canada needs a refugee determination which is far more fair and professional than the present one. Determinations should be done by expert independent professionals, not by jack of all trades visa officers. Elementary rules of procedural fairness should be respected. The Government of Canada should lift the cap for 2012 for private sponsorship of refugees and abandon the proposal that privately sponsored refugees must be recognized either by a state or the Office of the United Nations High Commissioner for Refugees.
Inland, the legislation before Parliament to introduce an appeal to the refugee protection determination system is welcome. Less welcome though are the proposals for mandatory detention for up to twelve months of refugee claimants from designated groups, a prohibition on their obtaining permanent residence until five years after a claim is made, and artificial restrictions on the right of appeal.
When we think of refugee protection, we have to keep contemporary situations in mind. Yet, we must not forget the Holocaust and its lesson that refugee protection is a safety valve and a statement of opposition to the persecution refugees flee.
Support the existence of the State of IsraelThe State of Israel is the expression of the right to self determination of the Jewish people. While the right to self determination does not mean statehood in every case, it certainly must for the Jewish people who have been unable to escape persecution without a state of their own to protect them.
Israel is the only state out of 193 now members of the United Nations whose very existence is under constant attack. One form that attack takes is attempts at delegitimization through demonization.
The existence of Israel has generated yet other post Holocaust mutations of the antisemitism virus. Antisemitism denies to the Jewish people of a broad range of rights. Since the advent of the State of Israel, antisemites reject for the Jewish people the right to self determination. As well, the wars against Israel’s existence and in particular the delegitimization through demonization of the Jewish state have led to demonization of the Jewish people world wide as actual or presumed supporters of this supposedly demon state.
Canada has recently been so supportive of the existence of the State of Israel, in some cases being the only voting state to oppose demonizing resolutions in UN bodies, that to ask Canada for more may seem unnecessary. Yet, there is more that could be done, support for the cause of Jewish refugees from Arab countries.
Superficially, this issue may seem to have little to do with either Israel or the Holocaust. Many Jewish refugees from Arab countries did not go to Israel. As well, Jewish refugees from Arab countries fled or were expelled for the most part after and not during the Holocaust.
Nonetheless, there are links. The lesson we learn from the Holocaust about the need for rights and redress for refugees should apply to post Holocaust Jewish refugees.
As well, one component of the demonization of Israel is attributing the blame for the victimization of the Palestinian people to the existence of the State of Israel, rather than where it properly belongs, with the anti-Zionist movement. Raising the issue of Jews from Arab countries combats the demonization campaign by reminding us that there were two refugee populations created by the Arab wars against the existence of the State of Israel and that the Jewish population displaced from Arab countries was greater than the Palestinian population displaced from the territory of Israel. It would be useful, for instance, if the Canadian Parliament passed a resolution, like the American House of Representatives already did in April 2008, stating that a Middle East peace agreement must address the rights of all refugees created by the conflict, including Jewish refugees.
ConclusionReconciliation, in relation to the Holocaust, then does have a place, though not with the perpetrators of the Holocaust, nor even with the Canadian antisemites of days gone by. I do not suggest we reconcile with the ghosts of Fred Blair or Vincent Massey who were instrumental in denying Canadian protection to Jewish refugees, nor with the immigration officials who relaxed criteria which allowed the admission to Canada of Nazi war criminals, nor to the RCMP officials who refused to investigate Nazi war criminals in Canada once they arrived. Yet, the instrument that Blair, Massey and others used to deny protection to Jews and to give immunity to Nazis remains with us today, the Canadian state apparatus. That state apparatus no longer belongs to the antisemites of yesteryear. It belongs to us. To make Canada our Canada, Canada has to do what it can to right its wrongs of the past. That is a reconciliation effort worth making…………………………………………………………………………………………………………………….David is an international human rights lawyer based in Winnipeg, Manitoba and honorary senior counsel to B’nai Brith Canada.
(Revised remarks prepared for the Law Society of Upper Canada, Osgoode Hall, Toronto, Ontario, 17 April 2012) by David Matas