Canada (Minister of Citizenship and Immigration) v. Furman

Canada (Minister of Citizenship and Immigration) v. Furman
Court (s) Database
Federal Court Decisions
Date
2006-08-17
Neutral citation
2006 FC 993
File numbers
T-560-04
Decision Content
Date: 20060817
Docket: T-560-04
Citation: 2006 FC 993
Ottawa, Ontario, August 17, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
JOSEF FURMAN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction [1] Mr. Josef Furman, the Defendant, is 87 years old. Originally from Ukraine, he came to Canada in July 1949 from Germany, where he had lived since 1942. Mr. Furman became a Canadian citizen in 1957. Mr. Furman currently resides in Edmonton in a long-term care facility and suffers from dementia.
[2] The Minister of Citizenship and Immigration (the Minister), the Plaintiff, seeks to revoke the Canadian citizenship of Mr. Furman on the basis that he was admitted to Canada and obtained his citizenship by false representations or fraud or by knowingly concealing material circumstances. Specifically, the Minister alleges that Mr. Furman failed to disclose a change in his surname and that he failed to disclose the following activities during World War II:
(a) his collaboration with German occupation authorities;
(b) his engagement with the SS Trawniki Training Camp;
(c) his activities, as a Trawniki guardsman, at the Warsaw Ghetto in April and May, 1943 and at the Bialystok Ghetto in August 1943; and
(d) his activities as a concentration camp guard at the Flossenbürg concentration camp in 1943 and 1944.
[3] From a procedural perspective, these proceedings began with a Notice, dated November 13, 2003, in which the Minister at that time (the Honourable Denis Coderre) advised Mr. Furman that he intended to ask the Governor in Council to revoke his Canadian citizenship on the basis of the above-noted allegations. Mr. Furman exercised his right to ask that the matter be referred to the Federal Court. The matter was then referred to the Federal Court by the issuance of a Statement of Claim filed by the Minister.
[4] The hearing of this matter was held together with that of Canada (Minister of Citizenship and Immigration) v. Jura Skomatchuk (Court File No. T-440-04) because of the similarity in the evidence for both individual matters. However, these reasons and decision relate only to Mr. Furman.
[5] For the reasons that follow, I am satisfied, on a balance of probabilities, that Mr. Furman was an SS guardsman of the Third Reich, during which time he was engaged in the elimination of the Warsaw and Bialystok ghettos and as a concentration camp guard. He failed to disclose that information to immigration officials at the time he came to Canada. In other words, Mr. Furman obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information. However, the Minister has not persuaded me that Mr. Furman failed to disclose the change in his surname from Furmanchuk to Furman. Given these conclusions, there is no need to consider the allegation of collaboration.
II. Approach to Analysis [6] As discussed in more detail below, the task that is assigned to this Court is to decide whether Mr. Furman obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material circumstances (s. 18(1)(b), Citizenship Act, R.S.C. 1985, C-29 (the Citizenship Act, 1985)). Having heard and reviewed the evidence presented in these proceedings, I have concluded that my decision requires that I make a series of findings of fact that address the following questions.
Was Mr. Furman born “Iosef Furmanchuk”?
Was an individual named “Furmantschuk” trained as an SS Trawniki guardsman and did this individual participate, as a guard, in activities at the Jewish ghettos of Warsaw and Bialystok and at the Flossenbürg concentration camp?
What were Mr. Furman’s activities during World War II? The Minister submits that Mr. Furman was the “Furmantschuk” Guardsman referred to in 2, above. Mr. Furman submits that he was brought to Germany on May 1, 1942 and provided forced farm labour in Eltheim, Germany until the end of the war.
Would Canadian immigration officials have interviewed Mr. Furman and sought information on his World War II activities? As there is no direct testimony by any immigration official who would have interviewed Mr. Furman, the answer to this question involves a review of Canadian immigration and security procedures in place in the relevant time period.
If it is shown that Mr. Furman is the same “Furmantschuk” Guardsman described in 2, above, did Mr. Furman conceal these wartime activities from Canadian immigration officials prior to coming to Canada?
If I find that Mr. Furman did not disclose his true name, his status as a Soviet prisoner of war or his wartime position as a guardsman with the German SS to Canadian immigration officials, what impact would that have had on his immigration to Canada and later acquisition of Canadian citizenship?
If Mr. Furman failed to disclose his change of name upon application for Canadian citizenship, what impact would that have had on his citizenship?
[7] Before addressing these specific questions, it would be helpful to the reader to understand the legal framework under which this proceeding has been commenced. Further, as the most serious allegations by the Minister involve activities as a concentration camp guard, it may also be useful to have an overview of the system of concentration camps and labour camps in the territories held by the Third Reich. More specifically, since the alleged activities are associated with the SS Trawniki Training Camp, I will include an overview of the history of and procedures for training and use of Trawniki guardsmen.
[8] These reasons are organized as follows, with each section commencing at the paragraph noted.
I. Introduction……………………………………………………………………..[1]
II. Approach to Analysis…………………………………………………………....[6]
III. Legal Framework ……………………………………………………………….[9]
A. Procedural Rights…………………................................................................[9]
(1) Section 10(1) of the Citizenship Act, 1985................................................[10]
(2) Deeming Provision of s. 10(2) of the Citizenship Act, 1985.....................[12]
(3) Section 18 Notice………………………………………………………..[13]
(4) Effect of Court’s Determination under s. 18……………………………..[15]
B. Substantive Rights…………………………………………………………....[16]
(1) Section 10(1) of the Citizenship Act, 1948.....................................................[17]
(2) Meaning of “lawfully admitted”…………………………………………...[18]
C. Burden and Standard of Proof…………………………………………………[21]
IV. Historical Context………………………………………………………………...[26]
A. Witnesses..............................................................................................................[26]
B. Concentration and Labour Camp System of the Third Reich…………………[32]
(1) Overall Concentration Camp System……………………………………....[32]
(2) Administration of the Camps in the General Government………………….[38]
(3) Camp System in the Lublin region of the General Government……………[44]
(4) Trawniki Training Camp and use of Soviet POWs…………………………[47]
(5) Trawniki Processing of and Documentation for Guardsmen Trainees………[53]
(6) Role of Guardsmen………………………………………………………….[58]
(7) Integration with SS Death’s Head Units…………………………………….[66]
V. Allegation of Change of Name……………………………………………………..[69]
VI. Background and Role of Mr. Furman in World War II…………………………….[78]
A. Undisputed Facts……………………………………………………………….[78]
B. Mr. Furman’s Evidence………………………………………………………...[81]
C. Guardsman Furmantschuk……………………………………………………...[95]
D. Identity of Guardsman Furmantschuk….……………………………………..[121]
E. Conclusion…………………………………………………………………….[129]
VII. Immigration of Mr. Furman to Canada……………………………………………[130]
A. Mr. Furman in post-war Germany……………………………………………..[136]
B. Evolution of Canada’s Immigration Policy…………………………………….[140]
C. Role of RCMP………………………………………………………………….[143]
D. RCMP Security Screening Proceedure ….……………………………………..[153]
E. Grounds for Rejection …………………………………….……………………[158]
F. Conclusion……………………………………………………………………...[168]
VIII. Screening of Mr. Furman…………………………………………………………..[170]
IX. Failure to Disclose True Name of Birth……………………………………………[175]
X. Acquisition of Citizenship………………………………………………………….[180]
XI. Submissions of Mr. Furman on Decision in Dueck………………………………...[186]
XII. Officer’s Exercise of Discretion…………………………………………………....[201]
XIII. Summary of Findings………………………………………………………………[205]
XIV. Overall Conclusion..………………………………………………………………..[207]
III. Legal Framework A. Procedural Rights
[9] With respect to the legislation that governs these proceedings, the procedural rights of Mr. Furman are governed by the legislation in force when the citizenship revocation proceedings are initiated. In this case, the relevant provisions are ss. 10 and 18 of the Citizenship Act, 1985. These provisions are set out in full in Appendix A to these reasons.
(1) Section 10(1) of the Citizenship Act, 1985 [10] Pursuant to s. 10(1) of this Act, the Minister may make a report to the Governor in Council to the effect that a person has obtained their citizenship “under this Act” by false representation or fraud or by knowingly concealing material circumstances. If the Governor in Council is then satisfied that the person obtained their citizenship in such a manner, “the person ceases to be a citizen”.
[11] It is settled that the expression “under this Act”, where it appears in s. 10(1) of the Citizenship Act, 1985, must be interpreted as “under this Act, the Citizenship Act, as enacted from time to time” (Canada (Minister of Citizenship and Immigration) v. Fast, 2003 FC 1139, [2003] F.C.J. No. 1428 (QL), at para. 113). That is, a misrepresentation under a former Citizenship Act is caught by s. 10(1) of the Citizenship Act, 1985.
(2) Deeming Provision of s. 10(2) of the Citizenship Act, 1985 [12] It may be the case that a person did not directly lie or conceal information at the time of obtaining Canadian citizenship but did so to the overseas immigration officer who approved him for entry into Canada. This situation is addressed in s. 10(2). Pursuant to this provision, a person is deemed to have obtained his citizenship by fraud or by knowingly concealing material circumstances if he was “lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances” and, because of that admission, subsequently obtained his citizenship.
(3) Section 18 Notice [13] Section 18 of the Act requires that, before the Minister makes a report to the Governor in Council, he must give notice of his intention to do so to the person concerned. That person may then request that the question of whether he obtained his citizenship by false representation or fraud or by knowingly concealing material circumstances be referred to the Federal Court. If this Court decides in the affirmative, the Court’s decision will form the basis of the Minister’s report.
[14] In this proceeding, notice under s. 18 was signed by the Minister on November 13, 2003 and provided to Mr. Furman. By Notice of Request dated December 13, 2003, Mr Furman requested that the Minister refer this case to the Federal Court.
(4) Effect of Court’s Determination under s. 18 [15] The Court’s determination does not, in itself, constitute a decision to revoke or terminate the citizenship of a person. Rather, the decision of this Court provides the Minister with a factual basis for the report and may constitute the foundation of a decision of the Governor in Council. Only the Governor in Council has the duty and power to decide whether to revoke citizenship. While the decision made by this Court under s. 18 is final and cannot be appealed (Citizenship Act, 1985, s. 18(3)), a decision of the Governor in Council may be judicially reviewed (see, for example, Oberlander v. Canada (Attorney General), 2004 FCA 213, [2004] F.C.J. No. 920 (QL)).
B. Substantive Rights [16] With respect to substantive rights in relation to the acquisition of citizenship, I must examine the legislation in force at the time citizenship was acquired. Citizenship, in this case, was acquired in 1957. Accordingly, the two Acts that govern are the Canadian Citizenship Act, R.S.C. 1952, c. 33, proclaimed in 1948, (the Citizenship Act, 1948) and the Immigration Act, R.S.C. 1952, c. 325, also proclaimed in 1948 (the Immigration Act, 1948).
(1) Section 10(1) of the Citizenship Act, 1948 [17] Section 10(1) of the Citizenship Act, 1948 set out the criteria that were to be satisfied, in 1957, in order to be granted a certificate of citizenship. The provision is set out in full at Appendix A. Of particular relevance to these proceedings, Mr. Furman had to satisfy the Minister that he had been “lawfully admitted to Canada for permanent residence” (s. 10(1)(b)) and that he was of “good character” (s. 10(1)(d)). Obviously, there are other criteria such as adequate knowledge of English and French and adequate knowledge of responsibilities and privileges of Canadian citizenship; they are not at issue in this case. In effect, the lawfulness of admission to Canada is a condition precedent to the acquisition of Canadian citizenship.
(2) Meaning of “lawfully admitted” [18] To establish what is meant by the term “lawfully admitted”, I must turn to the Immigration Act, 1948. In s. 2(n), “landing” is defined as “the lawful admission of an immigrant to Canada for permanent residence”.
[19] For admission to Canada, an individual was required to undergo an examination before an immigration officer to determine whether he “is or is not admissible to Canada” (Immigration Act, 1948, s. 20(1)). Section 20(2) requires that the person “shall answer truthfully all questions put to him . . . and failure to do so . . . shall, in itself, be sufficient ground for deportation”. Of further interest is s. 50(f) which stipulated that every person who "knowingly makes any false or misleading statement at an examination or inquiry under this Act or in connection with the admission of any person to Canada or the application for admission by any person” was guilty of an offence under the Immigration Act, 1948.
[20] In sum, the scheme in 1957 was clear; misrepresentation during the examination for landing was not to be condoned. A person who lied or withheld material facts from the immigration officers before whom he appeared for examination was not “lawfully admitted” to Canada (Canada (Minister of Citizenship and Immigration) v. Bogutin [1998] F.C.J. No. 211 (QL) (F.C.T.D.), at para. 126) and, thus, is in breach of the Citizenship Act, 1948.
C. Burden and Standard of Proof [21] The burden of proof clearly rests with the plaintiff Minister.
[22] For purposes of defining the appropriate standard of proof, it is important to note that this is a civil proceeding rather than criminal.
[23] In one of the first cases of this type (Canada (Secretary of State) v. Luitjens (1991), 40 F.T.R. 267, [1991] F.C.J. No. 1041 (F.C.T.D.)), the Court found that the standard of proof that the plaintiff had to meet was what the Court called “high degree of probability”. This has been rejected in the jurisprudence that has followed where the standard of proof has now been held to be that of balance of probabilities Bogutin, above at para. 110; Canada (Minister of Citizenship and Immigration) v. Obodzinsky, 2003 FC 1080, [2003] F.C.J. No. 1344 (QL) at para. 7; Canada (Minister of Citizenship and Immigration) v. Baumgartner, 2001 FCT 970, [2001] F.C.J. No. 1351 (QL) at para. 8; Canada (Minister of Citizenship and Immigration) v. Odynsky, 2001 FCT 138, [2001] F.C.J. No. 286 (QL) at para. 13; Canada (Minister of Citizenship and Immigration) v. Oberlander, [2000] F.C.J. No. 229 (QL) (F.C.T.D.) at para. 187; Canada (Minister of Citizenship and Immigration) v. Kisluk (1999), 169 F.T.R. 161, [1999] F.C.J. No. 824 (QL) (F.C.T.D.) at para. 5; and Canada (Minister of Citizenship and Immigration) v. Katriuk (1999), 156 F.T.R. 161, [1999] F.C.J. No. 90 (QL) (F.C.T.D.) at para. 38).
[24] Thus, it is well established that, for a proceeding of this nature, the standard of proof is the civil standard of balance of probabilities. In a case such as this, however, where the allegations of conduct are morally blame-worthy and have serious consequences for the defendant, the jurisprudence teaches that I take great care in assessing the evidence (see, for example Odynsky, above at para. 13).
[25] The balance of probabilities standard will be met if the Court is satisfied, on the evidence, that the existence of a fact in dispute is more probable than not. In other words, based on the evidence before this Court, I must find that the event or fact in dispute is not only possible but probable (Obodzinsky, above at paras. 8-9). In this context of serious allegations and consequences for the individual, the inherent probability or improbability of an event is itself a matter to be taken into account (Re H (minors), [1996] A.C. 563 (H.L.)).
IV. Historical Context A. Witnesses [26] Two witnesses presented by the Minister were particularly helpful with respect to the historical context of these proceedings.
[27] The first of these witnesses was Dr. Johannes Tuchel, an historian. In these proceedings, he was qualified as an expert witness to testify with respect to the following:
· the terror apparatus of the Third Reich;
· the history of World War II;
· general information about concentration camps and the concentration camp system, including camps at Trawniki, Poniatowa, Flossenbürg, Sachsenhausen and Mauthausen and related satellite camps;
· the role of Trawniki guards in the Third Reich; and
· the liquidation or “cleansing” of the ghettos of Warsaw and Bialystok.
[28] In addition to Dr. Tuchel’s oral testimony, the Minister presented into evidence a document entitled “The Deployment of SS Guardsmen (SS-Wachmänner) from Trawniki in National Socialist Concentration Camps, with particular Emphasis on the Flossenbürg Concentration Camp”, dated November 2005 and prepared by Dr. Tuchel (Tuchel Report).
[29] The second witness was Dr. Jack Terry. Dr. Terry was born March 10, 1930 in Belzyce, Poland, about 20 kilometres from Lublin. He testified as to the conditions in labour and concentration camps of the Third Reich and as to the role of Ukrainian guardsmen.
[30] Dr. Terry is a Jew. On May 8, 1943, the remaining residents of his town were rounded up by a team consisting of an SS member named Reinhold Feix and 24 Ukrainian guards. Those who were not fit for labour, such as older women and children, were executed outright. Others were forced to dig their graves and sent to labour camps. Dr. Terry was sent to Budzyn where he remained until April 1944. At that time, he was transferred to Wieliczka, a salt mine near Krakow, where he worked 600 metres below ground in a Nazi airplane factory. His last destination was the Flossenbürg concentration camp where he arrived on August 4, 1944. At this camp, he worked in a stone quarry for two weeks and, thereafter, in an underground Messerschmitt factory. When the camp was liberated on April 23, 1945 by the American Army, it appears that Dr. Terry was the only surviving Jew at the camp; all others were evacuated and “taken on the death march” in the days preceding the liberation.
[31] Dr. Terry’s direct and compelling testimony affirmed the well-known view of the brutal treatment of inmates in concentration camps during World War II. Further, his testimony reminds us of why persons associated with the administration of the camps were not welcome in Canada.
B. Concentration and Labour Camp System of the Third Reich (1) Overall Concentration Camp System [32] Dr. Tuchel provided a robust history of the purpose and structure of the concentration camp system in the Third Reich, and drew to the Court’s attention the distinction between the main camp system within the expanding borders of Germany itself (the German Reich), and a separate system located in the German-occupied region of Poland known as the “General Government” (Generalgouvernement). The Nazi government utilized concentration camps as a tool of control and oppression from the early 1930s onward. As early as February 1933, the second commandant of the Dachau concentration camp, Theodor Eicke, had established “a standardized system of violence… to ensure a maximum of systematic brutality against the inmates” (Tuchel Report at 52).
[33] In general, there were three types of war-time camps:
· Labour camps – Jews performed forced labour in these camps, supporting German industry, but were not necessarily confined to the camps. Initially, these camps were not part of the concentration camp system. Two labour camps, located at Poniatowa and Trawniki, in occupied Poland, are of relevance to these proceedings.
Concentration camps – These were camps of incarceration. Many types of prisoners were confined to these camps, including Jews, Poles, Russians, and Germans. By 1942, forced labour was introduced to these camps. Many inmates died from starvation, disease, and murder. Of particular importance to this inquiry was the concentration camp located at Flossenbürg in Bavaria, near the Czech border.
Extermination camps – the sole purpose of these camps was to exterminate all Jews that arrived through their gates. These camps are distinguished from concentration camps by their single, genocidal purpose. Extermination camps were located in the General Government (occupied Poland).
[34] Ghettos were a fourth type of confinement for Jews in the area of the General Government. In this system, Jews were restricted to a relatively small section of a city. Ghettos served as a source of slave labour for German industries, but also as a way to concentrate Jews and make it easier to transport them to labour, concentration or extermination camps.
[35] In the pre-war period, and until 1942, the objectives of the camps were to suppress political enemies and opposition in occupied countries. In 1942, concentration camps also became labour camps, and inmates were forced to work for the German arms industry. Dr. Terry testified that “living conditions” was the wrong term for life in the concentration camps; the conditions were anything but suitable for life. Starvation was the norm and hygiene was impossible. Dr. Terry explained that the German camp policy was “extermination through work.”
[36] From 1942 onward, the camps continued to grow with the influx of Eastern European prisoners. The major camps grew in size and a network of “satellite camps” sprung up; these smaller camps were located near a major concentration camp and fell under its administration.
[37] It is clear from the evidence of both Dr. Tuchel and Dr. Terry that mass murder was the overall goal of the camp system. As Dr. Tuchel testified, extermination camps had “only one purpose, to kill people”. SS documents recovered after the war indicate the deliberate brutality of the camp conditions; the Jewish labour was to be “literally exhaustive… The working hours are not subject to any limitations” (Tuchel Report at 55).
(2) Administration of the Camps in the General Government [38] All of the camps in Germany and German-occupied lands fell under the responsibility of Heinrich Himmler, Reichsführer SS and Chief of German Police and Gestapo (secret police).
[39] In the General Government, the Head SS and Police Leader (HSSPF) had jurisdiction over the exploitation of Jewish forced labour generally, and over the labour and concentration camp system in that region. The General Government was divided into several administrative districts, one of which was the Lublin district. Each district was controlled by an SSPF (SS and Police Leader). The SSPFs directly oversaw the camps in their regions and answered to the HSSPF and, above him, to Heinrich Himmler.
[40] In the General Government, between 1939 and 1941, Jews were consolidated into forced labour groups and ghettos, and moved to a growing network of labour and concentration camps. In late 1941, extermination camps were also developed in this region. The General Government had been chosen as the region to carry out the genocidal objectives of the Nazi and SS leaders. Since mass executions were proving too difficult and too public, the “Final Solution of the Jewish question” was determined at the Wannsee Conference on July 31, 1941: to evacuate Jews to eastern occupied Poland, where they could all be killed in the camps.
[41] This “Final Solution” was carried out under the code name Operation Reinhard (“Aktion Reinhard”). This operation saw the construction of, among others, the three extermination camps in the Lublin region – Belzec, Sobibor, and Treblinka – and the murder of over 1.7 million Jews. Operation Reinhard commenced in late 1941 and continued until October 1943. After that time, the extermination camps in the Lublin area were shut down and disguised as farms, and a skeleton guard was left at those locations.
[42] It is important to note that the concentration camp system throughout Germany and the occupied territories was entirely under the supervision and control of Heinrich Himmler and therefore the SS and German Police. In autumn 1943, administration of the camps was changed from SSPF control to the newly-formed SS Economic and Administrative Main Office (SS-WVHA, or “SS-Wirtschafts-Verwaltungshauptamt”), Administrative Group D. This administrative change emphasized the growing importance of forced labour to the Third Reich and the escalation of the genocidal policies.
[43] German Guard Units in the camp system were called the “Totenkopfverbande” or “SS Death’s Head Units” (and later “SS Death’s Head Battalion”) by order of Himmler himself. The SS Death’s Head Units were specifically separated from the Armed Forces and the Police; they were to become the core of an SS elite troop. The original German members of this Unit were marked by “blood” tattoos, which indicated their blood types.
(3) Camp System in the Lublin region of the General Government [44] The Lublin region contained all three types of camps, until late 1943. There were labour camps such as Poniatowa, Budzyn, and the Trawniki labour camp (see below; this labour camp was attached to the Trawniki Training Camp for guardsmen). There were also concentration camps, such as the Lublin concentration camp. Finally, there were extermination camps such as Belzec, Sobibor, and Treblinka. All of these camps were under the supervision of the SSPF Lublin.
[45] 1942 and early-to-mid 1943 saw the evacuation or “cleansing” of Jewish ghettos, including major ghettos in the cities of Warsaw and Bialystok. Jews were forcibly rounded up from the ghettos and sent to one of several concentration or extermination camps, including the Lublin concentration camp and the Treblinka extermination camp.
[46] In September 1943, the General Government concentration camp administration was placed under the SS-WVHA. At this time, many people from the occupied territories were taken from their homelands and forced to work for Germans in other parts of Europe; those who protested or did not work hard enough were sent to the concentration camps. This change also eliminated all labour camps; only concentration camps and extermination camps were to exist from that point on. Accordingly, all labour camps in the Lublin region, including Trawniki, were converted to concentration camps and placed under the administration of the larger Lublin concentration camp.
(4) Trawniki Training Camp and Use of Soviet POWs [47] I turn to a review of the German facility that is central to these proceedings. Among the various camps located in the General Government, a unique dual-camp was located at Trawniki, about 35 km from the town of Lublin and close to the border with Ukraine. This location contained a labour/concentration camp (Labour Camp Trawniki) as well as an adjoining training camp for non-German guardsmen (SS Training Camp Trawniki). Like the other camps in the Lublin region, (such as Poniatowa) the Trawniki camps were at first under the supervision of the SSPF Lublin and, as of September 1943, under the SS-WVHA organization (at which time the labour camp became a concentration camp).
[48] Guardsmen trainees came to Trawniki in a number of ways. Some were German volunteers. However, of particular interest to this case, many were prisoners of war who had been captured by the Germans.
[49] In early 1941, the first selected Soviet prisoners of war arrived in Trawniki and undertook several weeks of training as guardsmen. These trainees were selected from POW camps, initially those in the districts of Cracow and Lublin and, somewhat later, from POW camps in the Ukraine. For these prisoners of war, the situation in POW camps was difficult; a large percentage did not survive. For example, according to Dr. Tuchel, about 22,000 Soviet prisoners of war interned at Poniatowa died over the 1941-1942 winter. Additionally, many Eastern Europeans, including Ukrainians, had suffered under the Soviet regime; this was true of former Soviet conscripts as much as anyone else. Thus, it is understandable why these men were seen as a potential source of manpower for the German war machine and why they would not refuse to train and serve.
[50] Documentary evidence and commentary in Dr. Tuchel’s Report explains how the Nazi Germans exploited Soviet prisoners of war after the attack on the USSR, in 1941. On July 25, 1941, faced with severe manpower shortages in the vast, newly conquered Eastern European territories, Heinrich Himmler instructed SS and Police Leaders, including SSPF Globocnik (the first commander of Trawniki Training Camp), to establish:
. . . protective formations made up of those population groups in the occupied territories who are friendly towards us, as has already been done in some cases by the Operational Task Forces (Einsatzgruppen) of the Security Police. These protective formation should be formed primarily of Ukrainians, residents of the Baltic countries, and Byelorussians. They should be selected from among the men who still live in those regions, and from among non-Communist prisoners of war. [Emphasis added.]
[51] Formation of these non-German forces was so necessary to the German war effort that possible Communist ties were not to be a problem except in the case of “fanatically inclined Bolsheviks, political commissars, and other dangerous functionaries” (according to Operational Order No. 8 issued by Reinhard Heydrich, Chief of the SD, on July 17, 1941; see footnote 40 at page 16, Tuchel Report). In short, the Germans were not being very discriminating about who they chose, and the selected prisoners of war were not necessarily supportive of the Nazi regime.
[52] The evidence also indicates that Soviet prisoners of war did not volunteer for service in the German units, at least not in all cases. Heydrich’s Operational Order No. 8, for instance, established two duties for the SD units assigned to the prisoner of war camps: (i) to select prisoners of war with “intolerable” characteristics for execution; and (ii) to select prisoners of war for service in the auxiliaries. Although I have no detailed information about the selection process, I feel no hesitation inferring that the only viable choice given to the selectees was service. Indeed, Dr. Tuchel specifically and emphatically commented at trial that he would never refer to the Soviet prisoners of war who joined the Trawniki Training Camp as “volunteers”.
(5) Trawniki Processing of and Documentation for Guardsmen Trainees [53] Upon their arrival at Trawniki, new recruits were photographed. In the Camp office, a personnel sheet (Personalbogen) and personnel card (Personalkarte) was kept for each individual. Each recruit was assigned a registration number which “was to stay with the recruit and future guard for as long as he served in Trawniki or at a location or commando to which he was assigned from Trawniki” (Tuchel Report at 24).
[54] Dr. Tuchel provided evidence that this registration number was a feature of the Trawniki Training Camp that distinguished this facility from others in the German concentration camp system. A registration number was unique to a guardsman. No number was ever assigned to another individual, even if a guardsman died. Once Trawniki men were transferred out of the Trawniki camp system and into the German concentration camp system, their registration numbers were no longer used for identification. Using this information, Dr. Tuchel testified that he could track an individual guardsman among camp documents such as the Transfer Lists (which are discussed in detail below).
[55] Dr. Tuchel also testified that the registration numbers were given out in a sequential basis upon recruitment, beginning with the number 1 and progressing upward. About 5,000 guardsmen were trained at Trawniki. Dr. Tuchel also explained how he could estimate when a recruit arrived at the camp. By examining the few surviving Personalbogen and Personalkartes of Trawniki guardsmen, which indicate their date of arrival, and by examining the registration numbers on various transfer lists, which are also dated, Dr. Tuchel could pinpoint a time frame in which a guardsman with a given registration number must have arrived at the Training Camp.
[56] Every recruit signed a service pledge (Dienstverpflichtung), which makes it evident that the guardsmen were considered to be part of the SS. As of the spring of 1942, the pledge had the following wording:
. . . I hereby declare that I pledge to serve in the Guard Units of the SS and Police Leader in the District of Lublin for the duration of the war, and that I subject myself to the existing service regulations and disciplinary regulations.
[57] Dr. Tuchel’s evidence was that, when transferred out of the Lublin district (for example, to a concentration camp within the German Reich itself), the identity documents of the individual guardsman were sent with him. Thus, the Personalbogen and Personalkarte of a guardsman sent to a camp beyond the Lublin district would not remain at Trawniki. This becomes important in this case because no personal identification documents have been located for Guardsman Furmantschuk, Registration No. 1538. Thus, there is no direct evidence as to when this person arrived at Trawniki and no photograph that could link this person to the Defendant, Mr. Furman.
(6) Role of Guardsmen [58] As Dr. Tuchel explained in both his report and testimony, the Trawniki guardsmen were used for many purposes. They acted as guards for labour, concentration, and extermination camps; they assisted in guarding important non-military locations such as saw-mills; and they participated in clearing Jewish ghettos. Later on, they were mixed with German guard units and some were transferred to concentration camps within the German Reich. Trawniki guardsmen were each issued a simple rifle and a bayonet in order to fulfill their duties.
[59] Trawniki guardsmen began their training by guarding the Trawniki Labour Camp. The guardsmen’s role was to watch over the Jewish inmates, to escort them to and from their work, and to shoot any attempted escapees. The guardsmen carried out these same duties when sent to other labour camps, including Poniatowa.
[60] Dr. Tuchel indicated that, according to reported accounts from the camps, the Trawniki guardsmen also interacted with inmates by beating them, or forcing inmates to assault each other. The guards at Poniatowa sometimes took money from Jews in return for slight privileges, such as being allowed to communicate with relatives through the barbed wire fence around the camp and obtain food, but this practice varied with the strictness of the camp commander. Dr. Terry testified that, at Flossenbürg, Ukrainian guards (who very likely were Trawniki men) would bait inmates into attempting to escape and then shoot them; the guards were often rewarded for killing “escapees.”
[61] Documentary evidence canvassed by Dr. Tuchel indicates that Trawniki guardsmen were involved in the clearing of the Warsaw and Bialystok ghettos, and other ghettos in the Lublin area.
[62] At the Warsaw Ghetto, between 200 and 250 Trawniki guardsmen participated in deporting Jews to the Treblinka extermination camp in 1942 and 1943. Heinrich Himmler ordered the complete evacuation of the Warsaw ghetto in late 1942, but the first effort to clear the ghetto in January 1943 failed; a Jewish resistance managed to fight off the German effort, although several thousand Jews were still deported to Treblinka at this time. In April 1943, the Germans assembled a larger force made up of Waffen-SS units, Security Police personnel, and three companies of Trawniki guardsmen. They succeeded in evacuating the entire ghetto, after a full month of fighting. Trawniki men sent to Warsaw were rolled into Warsaw Command (“Kommando Warsaw” in German) for the duration of the operation and were active in the evacuation. A report by SS-Brigadefuhrer Jurgen Stroop, with a title that translates to "The Jewish District in Warsaw No Longer Exists!" (the Stroop Report), indicates that many of the guardsmen were wounded or killed during the operation. Trawniki guardsmen were often deployed as “cordon personnel” at the ghetto wall, to prevent Jews from escaping. They also conducted searches inside the ghetto, gathered Jews for deportation, and guarded transport trains heading to concentration or extermination camps. Other documentation indicates that the guardsmen were repeatedly involved in acts of violence while carrying out these duties.
[63] The clearing of the Bialystok ghetto followed after Warsaw. A large force was used at the start, including about 200 Trawniki men. The clearing encountered less resistance than in Warsaw and was completed in 5 days. Trawniki guardsmen fulfilled the same role as before, and were involved in several documented accounts of violence against Jews.
[64] Jews rounded up in the clearing of these ghettos were either moved directly to extermination camps or to labour or concentration camps. Of the Jews evacuated from Warsaw and Bialystok, very few survived to the end of the war.
[65] Some Trawniki men also served in the extermination camps. They performed guard service, sealed off arriving transports, unloaded railway cars carrying Jews, and escorted Jews to the gas chambers. Documentary evidence shows that Trawniki men participated in gassing at Treblinka, by starting the motors that pumped gas into the death chambers.
(7) Integration with SS Death’s Head Units [66] In 1943, the Trawniki guardsmen were comprised of former Soviet POWs and of volunteers. Up to this time, the Trawniki men had been somewhat unreliable; there had been a significant number of desertion attempts. To solve this problem, the Lublin SSPF suggested to Himmler that the Trawniki men be integrated into the regular German guard units, known as the SS Death’s Head Units. Beginning in 1943, Trawniki men were exchanged with German guardsmen from concentration camps within Germany itself. German records show that every effort was made to treat the Trawniki guardsmen as members of the SS Death’s Head Guard Battalion: they were to be treated as comrades; they received the same pay and benefits as German soldiers; and their duties were the same as German guards.
[67] German records, including two of the Transfer Lists that are central to this inquiry, show the transfer of hundreds of Trawniki guardsmen to German concentration camps such as Flossenbürg and Sachsenhausen. According to Dr. Tuchel’s report, “approximately 870 Trawniki SS Guardsmen can be identified by name who were transferred from Trawniki to the SS Death’s Head Guard Battalions in concentration camps between April and November 1943” (Tuchel