February 2000

The return to Australia of Konrads Kalejs sparked considerable controversy. The government at the moment seems to be focusing on extradition to Latvia, claiming there is not enough evidence to warrant further action under Australian law.

The debate about Kalejs, however, masks a much larger issue. Australia has a problem with war criminals of which Kalejs is only a small part, and since the closure of the Special Investigation Unit in 1992, successive governments have done little about it. Australia accepted at least hundreds and probably thousands of alleged Nazi war criminals after World War II, and for years did nothing about them. There have also been serious allegations of other war criminals from other conflicts using Australia as a haven.

And Australia is poorly equipped to do anything about them. The existing war crimes laws do not permit criminal trials of cases from other than the Second World War. Deportation law currently makes it difficult or impossible to de-naturalise a war criminal if he committed his crimes before 1997, even if he obtained his or her citizenship under false pretences. Since the SIU’s disbanding, there is no permanent investigation unit with the special skills, contacts, and resources to carry out thorough investigations of war crimes allegations. The Federal Police, which in theory currently have this responsibility, lack both the specialised investigatory skills needed and the resources to make war crimes investigations a priority.

Cases like Kalejs’ will doubtless keep coming up and will doubtless continue to be political footballs handled on an ad hoc basis by demonstrations, press releases and newspaper debates unless and until Australia has a thoroughgoing, institutionalised war crimes policy, involving changes to war crimes and deportation law, and a permanent professional investigative body. This would not only allow Australia to live up to its international responsibilities and internal consensus not to provide a haven for war criminals, but allow the country to handle this very real and ongoing problem with much less heat and much more light in the debate.

Below are only a few examples of Australia’s war crimes problem as it currently exists.

Konrad Kalejs - the forgotten verdicts

Given the intense media coverage of the Kalejs case, and past coverage by The Review, it does not seem worth repeating the allegations and evidence against Kalejs, except to note a single important point which relatively few journalists and commentators seem to have picked up. And this is simply that in Kalejs’ civil deportation trials in both the US and Canada, courts did more than simply rule that Kalejs lied on his immigration papers and was in the notorious Arajs commando. In both cases, there were also findings that on the balance of probabilities, Kalejs was involved in war crimes. Canadian Adjudicator A. Iozzo ruled that, "Konrads Kalejs by serving as the commander of the external guards at Salaspils [concentration camp] in 1942 became an accomplice to the crimes committed at Salapsils," and that "As an accomplice to the acts of murder, forcible confinement, enslavement, torture and failure to provide for the necessities of life, Konrad Kalejs violated the laws of war and committed war crimes or crimes against humanity."

American Judge A. Petrone similarly ruled in 1988 that "The incarceration, forced labour and brutal treatment of Jews and political prisoners at Salaspils, Sauriesi and Porkhov [concentration camps], the killing civilians at the front and the execution of Gypsies at Porkhov were acts of persecution because of race, religion, national origin or political opinion. The respondent [Kalejs] assisted and participated in this persecution."

Even if these are not actual criminal convictions "beyond a reasonable doubt," this existing level of judicial scrutiny of the charges against Kalejs clearly means that the allegations against him are not merely "accusations," as some commentators have claimed. The only Australian investigation of Kalejs ended before the Canadian and US appeal decisions were handed down, and according to SIU head Robert Greenwood QC, was incomplete. Surely these new findings deserve at least a new investigation.

Karlis Ozols - the case that should have been

Karlis Ozols is, according to the Department of Public Prosecutions, the "highest ranking alleged war criminal living in Australia" and "his alleged war crimes are of a far greater magnitude than the others." Furthermore, the DPP alleges that "he and his company have been directly or indirectly involved in the mass murder of thousands of people." And, unlike Kalejs, Australian law enforcement agencies have unequivocally concluded that there is a "strong prima facie" case against Ozols for four counts of genocide, but twice political or budgetary considerations have prevented a criminal case from going ahead.

As The Review has previously reported, the main allegations against Ozols centre on mass murders committed around Minsk in what is now Belarus, between 24 July 1942 and 27 September 1943. Again according to the DPP, Ozols, a lieutenant, commanded a company of 100 Latvian SD (Sicherheitdienst - Security Service) troops whose role in Minsk was "to guard SD installations, including the ghettos of Minsk and nearby ghettos and concentration camps, to assist in transportation and guarding of Jews selected to be killed and to guard the killing pits. They also sometimes killed the Jews at those pits." The key crimes for which the DPP recommended Ozols be tried are: participation over several months in the gradual slaughter of at least 10,000 Jews of the Minsk ghetto at killing sites at Gut Trosinez and Maley Trosenets by shooting and gas trucks; guarding the Minsk ghetto and hunting down and killing those Jews who hid from transport there; and the liquidation of the entire ghetto of the town of Slutzk, over 2000 people, on February 8 and 9, 1943. According to Nazi documents, it appears that Ozols’ 110 men were the majority of the troops sent to carry out the slaughter at Slutzk.

The DPP obtained statements from nine surviving members of Ozols unit. These confirm that Ozols and his unit not only stood guard over mass killings, he also gave orders for his men to kill their victims, and participated in shooting people himself. In addition, there are testimonies from Jewish survivors, and a whole swag of wartime documents implicating Ozols. One is an order which specifically names Ozols as one of those ordered to take part in the liquidation of the Slutzk ghetto. Another is a report from a German officer who claims that in anti-partisan action, he had to restrain Ozols’ men from shooting every inhabitant of a village in which they arrived.

In 1979 testimony to German war crimes investigators, Ozols admitted his wartime role and rank and that he had been stationed at the places indentified by witnesses and documents, while denying any killing of civilians. And just before the investigation ended, yet more evidence from the newly opened KGB archives became available, including additional documents and additional witnesses, never properly examined by the SIU. The evidence in this case, at least as of 1992, would appear to have been truly overwhelming.

Yet it never went to trial. In 1992, the office of the DPP solicited a legal opinion which strongly recommended prosecution after some additional investigation of new evidence in the former Soviet Union, and some efforts to collate the evidence. The SIU recommended the same and repeatedly asked the Attorney General, Michael Duffy, for permission to complete this investigation and was refused. The Attorney General told the Jewish Community that "it was not possible to predict with certainty that further investigations would produce material providing a sufficient basis for the laying of charges. In the light of the Cabinet decision [to close the SIU], it will not be possible to conduct any further inquiries into this matter." This was clearly not the view of the law enforcement professionals, but appears to have been a political decision by a government determined not to pursue additional prosecutions.

After that, the file was sent to the Australian Federal Police. In 1997, Attorney-General Daryl Williams declared the case closed on the grounds that "The AFP concluded that there was little chance of success in pursuing this case to finality." But a 1995 letter obtained by The Review shows that the AFP spiked the case because of inadequate funds, not lack of evidence or poor prospects for convictions. The letter to the Minister from D.J. Schram, Acting Assistant Commissioner for Investigations, stated that to complete the investigation would cost at least $300,000 "I would consider that to investigate this matter to finality will pose an unreasonable financial burden. It would most certainly diminish the AFP’s capacity to investigate other major criminal matters. Accordingly, in the face of competition for law enforcement funds, I do not intend to have the AFP continue with the investigation."

This case clearly demonstrates that the failure to pursue further war crimes trials in Australia is due to the lack of political will and funding, and not lack of evidence, as claimed repeatedly by successive governments.

Antanas Gudelis - genocide charges still pending

The only case in Australia currently facing live charges, Lithuania’s Prosecutor General filed Genocide charges against Gudelis in July of last year and sought Australian assistance in pursuing the case. Gudelis, who lives in South Australia, is accused of having shot a number of civilians in the town of Kupiskis when he commanded a pro-Nazi military unit in 1941. While Gudelis was investigated by the SIU in 1989-1991 and given the case number PU 562, the SIU concluded that there was insufficient evidence to prosecute, saying "Although the SIU held the view that this allegation had substance, it was unable to gather enough admissable evidence to refer this case to the DPP."

However, new evidence in the case was made public by the Simon Wiesenthal Centre in 1994 and it is this evidence which led to the laying of charges in Lithuania. This new evidence has never been reviewed by Australian authorities.

The charges against Gudelis relate to a period when he was allegedly serving as head of a punitive section in Kupiskis where Soviet trial records claim that as many as 7,000 people were executed. One witness claimed "from the beginning of July [1941] every morning and every evening one could hear the firing of guns at the Jewish Cemetery." Soviet era sources claim that when the Kupiskis jail became overcrowded, on at least three occassions, prisoners, largely Jews and ex-communists, were beaten and tortured and taken to the Jewish cemetery of the town, where pits had been dug. The Soviet sources, as repeated by the SIU, allege that Gudelis issued the command to start shooting. A list made by the German appointed commandant of Kupiskis lists three major group executions in July and August 1941.

The SIU was able to find witnesses that affirm that Gudelis was in Kupiskis in July and August of 1941, that he was joined by other ex-Lithuanian soldiers in working for the Germans, and that some of their duties included working on the execution squads.

There are also allegations relating to Gudelis’ actions after August 25, 1941, when he went to the city of Kaunas and was made an officer in the Auxiliary Police Service Battalion, a pro-Nazi collaborator unit. Documents obtained by the Wiesenthal Centre show that in early September, Gudelis was sent as an officer in the 3rd Auxiliary Police Battalion to several provincial towns in Southern Lithuania, including probably Leipilingas, Sierijai, and Simna. At the time Gudelis was supposed to be in the area, the Jewish communities of all three towns, over 800 people, were shot, acccording to wartime German documents. Two separate men have testified in two separate overseas investigations that they served under Gudelis on this mission and that the unit actively participated in the murder of Jews.

Gudelis admitted to the SIU that he was at Kupiskis and at Kaunas, but not to participation in war crimes. He came to Australia, via Germany, in 1949, and became a citizen in 1958.

Heinrich Wagner - apparently fit, but no trial

Heinrich Wagner was committed to stand trial, after a judge ruled there was a prima facie case against him on three counts of war crimes in November 1992. Specifically, he was charged with taking part in the a massacre of 104 Jews at the village of Izraylovka in the Ukraine in 1942, with having there personally murdered at least some of 19 half-Jewish children between 4 and 11 years of age, and with later, in 1943, having murdered a Ukrainian railway worker. It is the killing of the children that stands out, especially since witnesses allege that, with a horrific flourish, Wagner threw one small child into the air and shot it in mid-air.

SIU war crimes investigators following up allegations about Wagner were able to actually locate the mass grave at Izraylovka, where the Jewish bodies were buried, with the 19 children witnesses say they saw Wagner murder on top. Among the witnesses against Wagner were the non-Jewish mothers of some of the children he is alleged to have killed, as well as former members of the same killing unit in the Ukraine.

The evidence the SIU brought to light on the Wagner case led German authorities to arrest and convict another member of the same Ukrainian auxilliary police squad, the Gendarmerie Ustinova, for the murders at Izraylovka. Ernst Hering was arrested in 1995 and in December 1997, the Cologne state court found him guilty of aiding and abetting murder. Hering was a more junior member of Gendarmerie Ustinova than Wagner, and unlike Wagner, there is no evidence that he personally shot people at Izraylovka.

But Wagner suffered a heart attack in 1993 during the lead up to his trial, and three doctors gave evidence that he was medically unfit to stand trial. One testified that his prospects for recovery were "remote." In a move criticised by both former heads of the SIU, Robert Greenwood QC and Graham Blewitt QC, the Director of Public Prosecutions Michael Rozenes, QC, entered a Nolle Prosequi, dropping all charges. He could instead merely have postponed the trial.

However, despite his supposedly "remote" chance for recovery, an American ABC 20/20 news team recently found him seemingly quite healthy at his home in the suburbs of Adelaide. He was filmed doing the gardening, carrying the groceries, and going for a walk. Yet without an SIU, there is no one to even examine his state of health or to review the evidence prepared for the original trial to see if it is still adequate for a new trial.

Heinz Specht - another case that might have been

Just a few weeks ago, the Simon Wiesenthal Centre identified another alleged case, Heinz Specht of Port Pirie, South Australia. Specht, a German, allegedly served as a sergeant with German Police Battalion 307, which was responsible for the massacre of thousands of Jews in Belorussia and Poland. Unfortunately, Specht died only a few weeks before the Wiesenthal Centre uncovered evidence linking him to Police Battalion 307.

If there had been an active process of war crimes investigation going on in Australia, it is quite likely that the connection to Specht could have been uncovered and investigated before his death.

Other alleged war criminals

Cambodia: There have been persistent reports of key figures from the murderous Khmer Rouge living in Australia. The most high profile case concerns Phily Ung, who identified a local restaurant owner as the Khmer Rouge officer who ordered her father arrested and taken to the local temple for interrogation. He never returned, like so many other Khmer Rouge victims.

There have been other less public sightings of alleged Khmer Rouge figures. A visiting Cambodian Senator, Song Chhang, also said he had heard reports of Khmer Rouge figures in Australia and wanted the Australian government to be more actively involved in investigating such claims.

Bosnia: There are also reports that some Australians may have volunteered to join Serbian para-military units, responsible for much of the ethnic cleansing and other atrocities in Bosnia. Former SIU head Graham Blewitt, now working for the International Criminal Tribunal in the Hague, said he had received numerous reports about Australians participating in such units.

Afghanistan: Members of Australia’s Afghanistani community have identified two men they say were key members of the Khad, the murderous secret police of the old Soviet backed Afghani regime. Police confirm they are investigating one man spotted in the Villawood Detention Centre. The community is also lobbying for the deportation of another alleged Khad member spotted at a Sydney funeral, with one woman saying, "I lost many members of my family because of this man. You should not be able to walk out into your community and come face to face with your family’s killer."

Chile: Alleged torturers associated with the Pinochet regime have been identified in Sydney.

Indonesia: There are allegations circulating that military figures and militia men who participated in the violence in East Timor may already be in Australia.

Copyright © AIJAC 2000
Last Updated 5 November, 2001