The Australian trials of class B and C Japanese war crime suspects, 1945-51.

• Author: Okada, Emmi

Abstract

This article examines the legal issues arising from the Australian trials of Class B and C Japanese war crime suspects that took place between 1945 and 1951, with a view to discerning the various considerations at play in the question of 'victors' justice'. It begins by canvassing the background of the Australian trials, and then turns to consider the procedural and substantive legal issues that surfaced. It is shown that, in many respects, the Australian trials did not meet the international standards of justice that we have become accustomed to today--mainly due to the inadequacies of the war crimes legislation in place at the time. Nevertheless, it is concluded that the 'victors' justice' question unhelpfully frames these inadequacies as ones motivated by revenge, which does not accord with the conduct, for the most part, of the officers of the military tribunal, and the manner in which they interpreted and applied the war crimes legislation and legal precedent. Instead, this article argues in favour of a more beneficial approach to drawing upon the experiences of the Australian trials, one that goes beyond the confines of the assumptions inherent in the question of 'victors' justice'.

Introduction

In 1985, the late David Sissons, an Australian historian who had dedicated a great part of his life to researching Japan-Australia relations and the post-war Japanese war crimes trials, wrote an article for the Sydney Morning Herald that began with a telling anecdote. It described an incident involving a visiting Japanese author who had brought Mr Sissons a photograph of a monument erected on Mt Sagane commemorating the Japanese men sentenced to death in the Australian war crimes trials, which had inscribed on it the words: '[t]hese trials were nothing more than vengeance, the proud victors exercising arbitrary judgment over the vanquished'. The visiting author had asked him whether he agreed with the sentence--'[t]he question called for a "yes" or "no" answer. I'm afraid my reply must be more complex' was the measured position of Mr Sissons. (1)

In considering the war crimes trials conducted by Australia from a legal perspective and the question of 'victors' justice' that inescapably crops up in a study of this nature, this article arrives at a similar conclusion. These trials, which took place from 1945 to 1951 under the War Crimes Act 1945 (Cth) (WCA), in many respects fell short of the international law standards of justice that we have evolved today. Yet, at least in a great majority of cases, there was nevertheless a notable exercise of legalistic restraint and an effort to achieve procedural integrity (despite the shortcomings of the WCA), which belies a simplistic view that the Australian trials were nothing more than vengeance disguised as law.

There are several ways in which the trials conducted by the Australian military tribunal could be categorised for examination. One way is by the nature of the victim--for example, whether the victim was a civilian or prisoner of war (POW); or by the nationality of the victim. Another method might be the nature of the crimes--whether they were massacres, ill-treatment of POWs, illegal medical experiments and so on. Although a comprehensive study of the war crimes tried by Australia would demand that material be organised under such rubrics, in this article the discussion is organised under the legal issues that emerge from the Australian trials. Individual cases are referred to in the course of discussion, but this article does not purport to examine the range of the 296 trials.

After briefly considering the background of Australia's war crimes trials, this article examines the procedural and substantive legal issues arising from those trials, with a view to discerning the various considerations at play in the question of 'victors' justice'. In so doing, it is hoped that this article will contribute to filling a conspicuous scholarly lacuna in this area of Australian legal history. (2) Aside from the limited secondary sources available, the article draws upon primary sources from the Australian War Memorial (AWM) and National Archives of Australia (NAA) in the form of court transcripts and documents, as well as materials in Japanese. Diacritics in Japanese words are omitted and, in keeping with their naming style, surnames precede first names when referring to Japanese appellations. Unless otherwise indicated, all English renditions of Japanese words are mine, as is responsibility for their accuracy.

1. Background and overview of the Australian trials

When viewing post-war Australian policy towards Japan, including the manner in which the war crimes trials were conducted, several features stand out against the policies adopted by other Allied powers. For one, Australia began investigations on Japanese war crimes in 1943, before any other Allied nation, spurred by mounting evidence of Japanese atrocities that emerged from 1942. These investigations were the three Federal Government-commissioned inquiries that took place under the leadership of Sir William Webb, conducted and collated in reports between June 1943 and January 1946. Many of the findings would later be used as evidence by the prosecution. Second, the Australian trials are noted for their extended duration: they lasted until mid-1951, one-and-a-half years longer than the other Allied trials, in spite of recommendations from the Far Eastern Commission (FEC) to conclude trials by 30 September 1949. Finally, it is an oft-remarked fact that Australia took a strong stance on the issue of indicting the Japanese Emperor, unheeding of the political pragmatism embraced by the United States (US) and Britain, which thought it best to '[use] the Imperial throne as an instrument for the control of the Japanese people'. (3) General MacArthur, the Supreme Commander for the Allied Powers (SCAP) in charge of Japanese occupation, deemed he would need 'at least one million reinforcements should such action [as the indictment of the Emperor] be taken. I believe that if the Emperor were indicted, and perhaps hanged, as a war criminal, military government would have to be instituted throughout all Japan, and guerrilla warfare would probably break out'. (4) Unmoved, however, by such political considerations and expedients driving occupation policy at the time, Australia continued to demand that the Emperor, as Head of State and Commander-in-Chief of the Armed Forces, not be given immunity, until the matter was finally settled by a vote in 1946 among the prosecuting nations of the International Military Tribunal for the Far East (IMTFE) that immunity was to be granted. (5)

All of these features of post-war Australian policy--the early war crimes investigations, extended duration of the trials and demand for the Emperor's indictment--reflected Australia's deeply-felt fears of Japanese military aggression, which was experienced as an immediate reality due to the country's geographical proximity and the air-raids suffered directly at the hands of the Japanese military in Darwin. Given the intense threat that Japan had posed and the reports of wartime atrocities uncovered by the Webb inquiries, it is not surprising to find that much public opinion and press coverage in the immediate post-war years was decidedly anti-Japanese, and a desire for retribution could certainly be found among these sources. (6) It should also be borne in mind that this was during the peak of the White Australia policy, and racist propensities had informed both Australian and Japanese wartime propaganda. (7)

Nevertheless, the celebrated words of Attorney-General and Minister for External Affairs Dr Evatt in 1945 were those disavowing vengeance:

If those responsible for those outrages are allowed to escape punishment, it will be the grossest defeat of justice and a travesty of principle for which the war has been fought. In its demand that all Japanese war criminals be brought to trial, the Australian Government is actuated by no spirit of revenge, but by profound feelings of justice and of responsibility to ensure that the next generation of Australians is spared such frightful experiences. (8) The 'justice' called for by Evatt entailed bringing Japanese war criminals to 'full account' for their conduct in war irrespective of their office. (9) In a number of ways, the manner in which Australia conducted its trials reveals an endeavour to follow the aspirations of Evatt (though, of course, the quality of justice remains a sticking point in the debate). Australia's trials were thorough (save perhaps those of Manus Island, which were conducted under a time constraint), and one Japanese commentator has remarked that, compared to other Allied trials, many minor offences seem to have been included for prosecution. (10) Yet, while the prosecution was rigorous, there was nevertheless a visible exercise of restraint when it came to the final outcomes. After China, Australia recorded the most number of acquittals among the Allied nations trying Class B and C Japanese war crime suspects. (11) In addition, many of the sentences handed down reveal a marked degree of leniency, so much so as to at times provoke an outraged reaction from the Australian public. (12)

According to the records of the Army Headquarters, Australia conducted a total of 296 trials, against 924 individual defendants, where findings and sentences were confirmed. (13) Of these, 280 were acquitted and 644 convicted, with death sentences (either by hanging or shooting) given to 148 defendants and prison sentences to 496 defendants (of which 39 were given life sentences; 156 received sentences of 11-25 years; and 301 were given sentences of 10 years or less). (14) Australia's war crimes trials took place from November 1945 to May 1951 in various locations in the Pacific: Morotai, Wewak, Labuan, Ambon, Rabaul, Darwin, Singapore, Hong Kong and Manus Island. (15)

The trials were...