Canada (Minister of Citizenship and Immigration) v. Skomatchuk

Canada (Minister of Citizenship and Immigration) v. Skomatchuk
Court (s) Database
Federal Court Decisions
Date
2006-08-17
Neutral citation
2006 FC 994
File numbers
T-440-04
Decision Content
Date: 20060817
Docket: T-440-04
Citation: 2006 FC 994
Ottawa, Ontario, August 17, 2006
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Plaintiff
and
JURA SKOMATCHUK
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction [1] Mr. Jura Skomatchuk, the Defendant, is now 85 years old. Born in Zabje (Kolomea), Poland, now part of Ukraine, Mr. Skomatchuk is an ethnic Ukrainian. He arrived in Canada in May 1952 and became a Canadian citizen on October 19, 1957. Mr. Skomatchuk has lived in Ontario continuously since his arrival in Canada; he is now retired from the mining industry and living in Ontario.
[2] The Minister of Citizenship and Immigration (the Minister), the Plaintiff, seeks to revoke the Canadian citizenship of Mr. Skomatchuk 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. Skomatchuk failed to disclose the following activities during World War II:
(a) his collaboration with German authorities;
(b) his engagement, in 1943, as a guard at the Poniatowa Labour Camp, a forced labour camp in occupied Poland, after training at the SS Trawniki training camp; and
(c) his engagement, in 1943, as a guardsman in an SS guard unit, at concentration camps in the German Reich.
[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. Skomatchuk that he intended to ask the Governor in Council to revoke his Canadian citizenship on the basis of the above-noted allegations. Mr. Skomatchuk 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 March 1, 2004 by the Minister.
[4] The hearing of this matter was held together with that of Canada (Minister of Citizenship and Immigration) v. Josef Furman (Court File No. T-560-04), because of the similarity in the evidence for both individual matters. However, these reasons and decision relate only to Mr. Skomatchuk.
[5] For the reasons that follow, I am satisfied, on a balance of probabilities, that Mr. Skomatchuk was an SS Guardsman of the Third Reich and, as such, was engaged as a concentration camp guard. Mr. Skomatchuk failed to disclose that information to immigration officials at the time he came to Canada. In other words, Mr. Skomatchuk obtained his Canadian citizenship by false representation or fraud or by knowingly concealing material information. Given this conclusion, there is no need to consider the allegation of collaboration also put forward, but not strongly argued, by the Minister.
II. Approach to Analysis [6] As discussed in more detail below, the task that is assigned to this Court is to decide whether Mr. Skomatchuk 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 facts that address the following questions.
Was an individual named “Skomatschuk” trained as an SS Trawniki Guardsman at the SS Trawniki Training Camp and did this individual participate, as a guard, at the Poniatowa Labour Camp, in occupied Poland, and as a guard at concentration camps in the German Reich?
Was Mr. Skomatchuk the same Guardsman Skomatschuk referred to in 1?
If it is shown that Mr. Skomatchuk is the same “Skomatschuk” Guardsman described in 2, above, did Mr. Skomatchuk conceal these wartime activities from Canadian immigration officials prior to coming to Canada?
If I find that Mr. Skomatchuk did not disclose 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?
[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) General Description of Camps….…………………………………………[32]
(2) Administration of the Camps in the General Government……………...….[38]
(3) Camp System in the Lublin region of the General Government………...…[44]
(4) Operation Harvest Festival……………………………………………..….[47]
(5) Trawniki Training Camp and Sources of Guardsmen …………………..…[49]
(6) Trawniki Processing of and Documentation for Guardsmen Trainees…..…[55]
(7) Role of Guardsmen………………………………………………………...[61]
(8) Integration with SS Death’s Head Units…………………………………...[65]
V. Background and Role of Mr. Skomatchuk in World War II………………………[68]
A. Guardsman Skomatschuk.…………………………………………………….[74]
(1) Transfer Lists…………………………………………………………..….[75]
(2) Arrival at SS Trawniki Training Camp…………………………………....[78]
(3) Transfer to Poniatowa……………………………………………………..[82]
(4) Transfer to Trawniki………………………………………………………[86]
(5) Transfer to Sachsenhausen………………………………………………...[91]
(6) Transfer to Mauthausen Concentration Camp……………………………..[95]
(7) Conclusion…………………………………………………………………[99]
B. Identity of Guardsman Skomatschuk..…………………………………………..[101]
(1) Birth Record………………………………………………………………[103]
(2) Links between Mr. Skomatchuk and Guardsman Skomatschuk……..……[116]
C. Conclusion…………………………………………………………………….....[135]
VI. Immigration of Mr. Skomatchuk to Canada………………………………………….[136]
A. Evolution of Canada’s Immigration Policy………………………………………[140]
B. Role of RCMP……………………………………………………………………[147]
C. Grounds for Rejection…………………………………………………………….[155]
D. RCMP Security Screening by Mr. Owens…………...……………………………[173]
E. Officer’s Exercise of Discretion…………………………………………………..[186]
F. Conclusion………………………………………………………………………..[191]
VII. Summary of Findings………………………………………………………………...[192]
VIII. Overall Conclusion……………………………………………………………...........[193]
III. Legal Framework A. Procedural Rights [9] With respect to the legislation that governs these proceedings, the procedural rights of Mr. Skomatchuk 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 this Court. If this Court decides in the positive, 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, 2004 and provided to Mr. Skomatchuk. By Notice of Request, Mr. Skomatchuk 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 sets 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. Skomatchuk 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, was 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-Wächmanner) from Trawniki in National Socialist Concentration Camps”, dated October 2005 and prepared by Dr. Tuchel (the 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) General Description of Camps
[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, 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 60).
[33] There were three general 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 incarceration camps. 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 are two concentration camps:
Sachsenhausen, located at Oranienburg, near Berlin, constructed in 1936; and Mauthausen, located near Linz in Austria, built in 1939.
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 suppress opposition in occupied countries. It was in 1942 that 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] 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 63).
[37] From 1942 onward, concentration camps continued to grow with the influx of Eastern European prisoners. The major camps grew in size and a network of “satellite camps” sprang up; these smaller camps were located near a major concentration camp and fell under its administration. For example, the Gusen camp was an Austrian satellite camp attached to the larger Mauthausen concentration camp.
(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 shifted from the SSPFs 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 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. 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] In 1942 and early-to-mid 1943, the process of evacuation or “cleansing” of Jewish ghettos throughout the General Government took place. The goal was to empty the ghettos and move all Jews to the camps and, eventually, kill them. Jews were forcibly rounded up and sent to concentration or extermination camps, including the Poniatowa and Lublin concentration camps 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 Poniatowa and Trawniki, were converted to concentration camps and placed under the administration of the larger Lublin concentration camp.
(4) Operation Harvest Festival [47] Following closely on the heels of the change in camp administration, Operation Harvest Festival (“Aktion Erntefest” in German) took place on November 3 and 4, 1943, with the intent of exterminating the Jewish populations in a number of concentration camps. Dr. Tuchel explained the reasoning behind the timing and motivation of this event:
First, why did the Germans carried out this Operation Harvest Festival? You have some uprising, especially in the Sobibor extermination camp in August 1943. Because the leaders of the SS and Police, especially Himmler himself, had the fear that there could be other uprisings, they decided to kill all Jews who stayed in the labour camps.
So you have different decisions in the year 1943. First, to place all Jews in labour camps. Then in September they made it satellite camps of a concentration camp. Then one month later, they decided to kill them all because they had the fear of another uprising in these Jewish camps. Maybe 400 guards - it's a high estimation - maybe a little less than 400 guards for a camp with 14,000 Jews, so they fear another uprising. That's why they implemented the Operation Harvest Festival and decided to kill all inmates of these camps and of the other camps.
[48] At least 14,000 Jews at Poniatowa and 5,000 to 8,000 Jews at Trawniki were killed in this operation, as well as many others in the Lublin concentration camp and its satellite camps. According to Dr. Tuchel (see Tuchel Report at 43, 56 – 57), the regular guards of these camps, including Trawniki Guardsmen, did not perform the killings. Instead, Waffen-SS and Police battalions and Security Police came to the camps to carry out the mass murders. The Trawniki Guardsmen were present during the operation, stood guard and corralled Jews who tried to escape, and covered the dead bodies with fir branches for concealment. After Operation Harvest Festival, a skeleton crew of guards was left at Poniatowa to conceal the now-defunct camp and guard the remaining buildings; the rest were returned to Trawniki. Dr. Tuchel indicated that the remaining guards exhumed the bodies two weeks later and burned them, then scattered the ashes in the surrounding forest.
(5) Trawniki Training Camp and Sources of Guardsmen [49] 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, 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).
[50] Guardsmen trainees came to Trawniki in a number of ways. Some were German volunteers. Many were prisoners of war who had been captured by the Germans. Of importance to these proceedings, many guardsmen were recruited from the German-occupied Ukraine region, an area that bordered on the General Government.
[51] Documentary evidence and commentary in Dr. Tuchel’s Report explains how the Nazi Germans were desperate for extra manpower after their invasion of the USSR in 1941. On July 25, 1941, faced with severe labour and police 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 formations 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.]
[52] In 1941 and 1942, the Trawniki Training Camp gained its recruits principally from Soviet prisoner of war camps among the German-occupied territories. Demand for trained guardsmen from Trawniki steadily rose, but the supply of prisoners of war did not. Many prisoners of war died from starvation and disease in the camps, and the 1941/1942 winter was particularly brutal, killing most of the Soviet prisoners of war (in particular, the inmate population at the Poniatowa camp was completely devastated, vacating it for later use as a Jewish labour camp). Thus, Camp Commandant Karl Striebel (appointed by SSPF Globocnik) began taking in “volunteers” from the local and surrounding areas.
[53] According to statements made by Striebel in proceedings against him after the war, “up to three men applied in Trawniki every day as volunteers”, mainly from the district of Lublin (Tuchel Report at 27). In 1943, Striebel expanded his recruitment to Polish and Ukrainian districts, including Galicia and Kolomea. Men were gathered and medically examined by local Circuit Administrations, then arrived by transport at Trawniki. In February 1943, more than 300 recruits arrived by train from Galicia, mainly from the Stanislau and Kolomea regions. In April, 1943, another transport of recruits arrived from the Kolomea and Gorodenko regions.
[54] The term “volunteer”, as applied to the Ukrainian recruits, was the subject of some discussion. How voluntary was the service of these men? Little evidence was provided, and little may exist, regarding the recruitment techniques used or by the motivations of the “volunteers”. Dr. Tuchel testified that the Germans received a warm welcome in many of the regions that they conquered from the Soviets – at least, at first. That sentiment for many soon turned to dismay and horror. It is certainly possible that many of the individuals who came to Trawniki were lured by anti-Soviet sentiment, by the promise of a steady wage and family benefits, by fascist or racist beliefs similar to the Nazis, or by some combination of these factors. On the other hand, it is equally possible that others signed up for duty under threat or fear of the alternatives. Ideologically, it is easy to say – today – that persons faced with serving as concentration camp guards could have and should have deserted or refused to serve. We were not there and will never know the whole truth unless we hear testimony from an affected individual. We do know, however, that some men from that region made other choices; some served as front line troops for the Third Reich, and some deserted. In the absence of any evidence to the contrary, it is reasonable to assume that there was at least some degree of volition by the Ukrainian recruits who served as Trawniki guards.
(6) Trawniki Processing of and Documentation for Guardsmen Trainees
[55] 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 25).
[56] Dr. Tuchel provided evidence that this registration number was a feature of the Trawniki Training Camp that was not used 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. Dr. Tuchel testified that, with this information, he could track an individual guardsman among camp documents such as the Transfer Lists, which are discussed in detail below.
[57] 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.
[58] 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.
[59] 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 Skomatschuk, Registration No. 3321. 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. Skomatchuk.
[60] Dr. Tuchel provided a cogent explanation for the absence of many personal identification documents for Trawniki guardsmen, in both his Report (Tuchel Report at 89) and his oral testimony. In the face of pending defeat, the Nazi regime, “especially the staff of concentration camps”, had made every effort to destroy records that would implicate concentration camp soldiers and guards. Thus, only a few of the Personalbogen of Trawniki guardsmen transferred to concentration camps in the German Reich survived. Some documents (including the Transfer Lists referred to below) from Trawniki survived only because they were seized by the Soviet army as they liberated the camp.
(7) Role of Guardsmen [61] 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 Third Reich. Trawniki guardsmen were each issued a simple rifle and a bayonet in order to fulfill their duties.
[62] 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.
[63] Dr. Tuchel indicated that, according to reported accounts from the camps, the Trawniki guardsmen also interacted with inmates in various unsavory ways. Some Trawniki guardsmen beat the inmates or forced them to assault each other. The guards at Poniatowa sometimes took money from Jews in return for some 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.”
[64] 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. Some Trawniki men also served in the extermination camps where 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 of Jews at Treblinka, by starting the motors that pumped gas into the death chambers.
(8) Integration with SS Death’s Head Units [65] In 1943, the Trawniki guardsmen were comprised of former Soviet prisoners of war and of volunteers. Up to this time, the Trawniki men had been somewhat unreliable; there had been a signific