Jump to ContentJump to Main Navigation
The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2017. All Rights Reserved. Under the terms of the licence agreement, an individual user may print out a PDF of a single chapter of a monograph in OSO for personal use (for details see http://www.oxfordscholarship.com/page/privacy-policy).date: 20 October 2017

War Crimes Trials, ‘Victor’s Justice’ and Australian Military Justice in the Aftermath of the Second World War

War Crimes Trials, ‘Victor’s Justice’ and Australian Military Justice in the Aftermath of the Second World War

Chapter:
(p.327) 16 War Crimes Trials, ‘Victor’s Justice’ and Australian Military Justice in the Aftermath of the Second World War
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Georgina Fitzpatrick

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0016

Abstract and Keywords

This chapter examines the war crimes trials conducted by the Australian military services at Darwin and several island locations in the Asia-Pacific region between 1945 and 1951. It challenges the imputation of wholesale injustice visited upon the ‘B’ and ‘C’ class minor war criminals and makes some preliminary observations.

Keywords:   war crimes trials, Japanese war criminals, Judge Pal, minor trials

[The convicted] are called war criminals, but they are not criminals at all. They are all innocent. They committed no crime. You need not feel ashamed. People in other parts of the world, too, are beginning to understand that war crimes trials were mistaken.

Judge Radhabinod Pal to families of convicted ‘B’ and ‘C’ class war criminals, Fukuoka, 19521

Between 1945 and 1951, the Australian military services conducted 300 war crimes trials at Darwin and several island locations in the Asia-Pacific region.2 There were 952 Japanese tried, several appearing in more than one trial. The military courts, set up under the War Crimes Act 1945, were presided over by three to five military men, none of them required to have any legal training.3 A Judge-Advocate could be appointed to assist with legal advice but this was not mandatory.4 The prosecuting officer tended to have been a solicitor or a barrister in civilian life subsequently recruited into the Australian Army Legal Corps (AALC). The defending officer, although sometimes from the AALC, could be Japanese, accustomed to a (p.328) completely different legal system and operating through interpreters. The accused, even if they knew some English, faced trial, perhaps for their life, reliant on such interpreters as the Australian military courts could provide. Sometimes the trials rattled through at a great pace, with the only evidence sworn statements by witnesses who were not present to be tested by cross examination. On the face of it, there could be grounds for unease.

(I) The Impact of Judge Pal

Ever since the 1952 publication of Judge Pal’s dissenting position at the International Military Tribunal of the Far East (IMTFE), there has been an undercurrent of criticism about the charges and the procedures at the trials of the major Japanese war criminals in Tokyo. On the sixtieth anniversary of the judgment at Tokyo, a gathering of historians and international lawyers revisited the question of ‘victor’s justice’ and demonstrated its continuing interest.5 In Japan, Pal’s critique has shaped the discussion for several generations, as Dr Totani has set out so clearly in her beautifully argued book on the IMTFE.6 Pal’s critique also had its effect on historians of other nationalities. Richard Minear nailed his colours to the mast with his title, Victor’s Justice, published in 1971, which became very influential in Anglophone circles.7 Thirty years later, a Taiwanese historian, Leo T.S. Ching, could still refer to the IMTFE as ‘a theatrical demonstration of the losers’ criminality and a farcical assertion of the victors’ moral righteousness’.8 This has been a viewpoint of some longevity which Dr Totani’s challenging book, with its close attention to the actual trial transcript and appended evidence, may find difficult to dislodge. The debate about the IMTFE lies outside the scope of this chapter but it provides one context in which any discussion of fairness in relation to the trials of the so-called minor criminals must be placed. Too many historians have leapt to the conclusion that ‘victor’s justice’ is an appropriate term to apply to the minor trials and yet the research has barely begun.

Judge Pal also played a part in framing the discourse about the minor trials. During his first post-Tribunal trip to Japan in 1952, as quoted at the beginning of this chapter, he assured the families of convicted ‘B’ and ‘C’ class war criminals that their relatives had ‘committed no crime’.9 He reiterated this view when he saw those serving their time in Sugamo prison alongside the ‘A’ class war criminals, declaring: ‘None of you bore any guilt’. On the one hand, Pal argued that (p.329) the major war criminals could not be held responsible for what had happened in far-flung islands because those crimes should be laid at the feet of the perpetrators in the field (his IMTFE position), and on the other hand, he argued, without perceiving any inconsistency or lack of logic, that the latter should be exonerated as well.10

Pal’s assertion that those convicted at the minor trials were ‘all innocent’ suggests some hubris. It is most unlikely that he had access to, much less worked through, the transcripts of the 2,240 or so minor trials conducted by several Allied countries between 1945 and 1951.11 Even sixty years after the last one finished—an Australian-run trial held on Manus Island in April 1951—insufficient research has been undertaken to make such blanket declarations with confidence. Until a complete series of trials conducted by one country is explored, such assumptions cannot be tested.12 As the historian currently engaged in an extensive study of Australia’s 300 war crimes trials,13 it is my intention here to challenge the imputation of wholesale injustice visited upon the ‘B’ and ‘C’ class minor war criminals and to make some preliminary observations.

(II) The Australian Trials

Little has been written, much less published, about the Australian-run trials. There are chapters in books,14 a few articles,15 and two doctoral theses.16 David Sissons, the acknowledged expert and participant—as an interpreter at three Morotai trials in February 1946—worked intensively through the Australian and Japanese sources (p.330) from the mid-70s to the mid-90s. However, he only published a brief entry in various editions of the Australian Encyclopaedia,17 an article giving a guide to sources18 and a long essay published posthumously online in 2006.19 Before his death in 2006, he deposited his papers with the National Library of Australia. These have been of great benefit for my research, because he interviewed or corresponded with many of his fellow participants, now deceased. He also hunted down and translated many of the Japanese accounts.20 To his assiduity, I owe a great debt.

An article of some influence in this poorly served field of scholarship has referred to the Australian trials as ‘an unfortunate episode’ and, on the basis of two cases tried at Rabaul, has portrayed the general spirit of Australia at the time of the trials as a ‘time of revenge and retribution for perceived Japanese mistreatment of allied prisoners of war and of civilians occupied by Japan’. Leaving aside the tendentious use of the word ‘perceived’ and the weighted choice of quotation in the title—‘It Will Not be Bound by the Ordinary Rules of Evidence’—to suggest summary justice, Creed and his fellow authors21 discussed two trials in which four Japanese soldiers were accused of sexual crimes against Chinese women, for which they received the death sentence.22 Written during the preparations for the 1995 Australia Remembers commemorations, the authors called for retrospective compassion for the four men hanged ‘for offences for which Australian soldiers could not or would not, have been executed’.23 While the harshness of the sentences is indeed remarkable for crimes when the victims did not die, the argument of Creed et al needs some unpacking.

The authors set out the steps of the two trials fairly accurately. My concerns stem from the manner in which the argument is built up in order to arrive at their verdict that these cases appear ‘to have been a substantial miscarriage of justice’.24 In the first trial, a case of rape, we are told that not only are the names of the prosecuting and defending officers not known—they were not recorded in the trial transcripts—but that we do not know ‘whether the defending officer was assisted by a Japanese counsel’.25 To the reader, it would seem that the accused, Sergeant (p.331) Yaki Yoshio, was very likely at a disadvantage. These deficiencies in information, however, could have been remedied by reading the press reports which not only name the Australian legal personnel but also name Captain Sekiyama as a Japanese lawyer from Tokyo assisting the defence.26 So Sergeant Yaki was not disadvantaged in this sense. He had an Australian and a Japanese lawyer defending him.

In discussing this case the authors found it an ‘unusual feature’ and ‘astounding’ that the accused did not petition against either the finding or the sentence.27 First of all, the decision not to petition was not unique.28 Secondly, although the trial record does not indicate why the accused did not petition, there is some evidence elsewhere as to the reason. The accused had admitted having sexual intercourse with the Chinese woman. The dispute in court between victim and accused rested on the question of consent. It seems that General Imamura, General Officer Commanding of the 8th Japanese Army in the Islands, agreed with the verdict of the court that there had been no consent. Imamura regarded rape as such a heinous crime that he forbade Sergeant Yaki the right to petition.29 A very junior Japanese soldier would not disobey such an order. Thus, Yaki’s decision not to petition, even if ‘astounding’, is a consequence of a Japanese cultural mindset in which obedience to superiors overrides self-interest. It cannot be ascribed to some impediment in the Australian procedure.

Another possibly misleading statement about this case concerns Lieutenant General Vernon Sturdee, the Confirming Authority, who, it is alleged, established ‘an almost universal practice for Australian war crimes trials simply confirming the findings and sentence without giving reasons’.30 While it is true that Sturdee did not provide explanations for his confirmations—although at earlier stages of the reviewing process, reasons were quite often given by reviewing officers for their recommendations—the impression is given to the reader that confirmations were automatic and that Sturdee acted without volition. In fact, Sturdee commuted so many death sentences in the first few months of the trials that there was a public outcry.31

In the second case discussed by the authors, the main concern expressed is that the three men convicted received a death sentence for the crime of torture ‘an even more unusual departure from contemporary Australian legal procedure’. It is outside the scope of this chapter and my expertise as a historian to consider whether the argument that military courts did not follow domestic precedents is a useful one to pursue.32 However, their account of the torture enacted upon the Chinese victim and confirmed by local witnesses omits the information that the assaults (p.332) on two successive days involved a banana. What happened was more than torture even if rape was not specified as one of the charges. In conducting this trial, the court members and legal personnel showed great, and perhaps unexpected, sensitivity to the victim, closing the court to the public to save her from embarrassment before her neighbours. As a contemporary press account reported, the crimes were ‘so revolting that no newspaper could print them’.33

One aspect that the authors of this article highlight is the speed with which the accused were sentenced—that the court members took only five minutes to consider their verdict and a further five34 to announce the verdict and hear any submissions on sentencing. Once more summary justice is implied. However, one could look at it another way. The President of the Court, Lieutenant Colonel John Moyes (Headquarters 8th Military District (8MD)), and one of the three court members, Major J. W. Ogle, had amassed considerable experience from other trials.35 It seems likely that they understood the circumstances existing during the occupation of New Britain, the situation of the Japanese garrison and the position of the local Chinese and had developed an informal scale of atrocities.

The final point to be discussed here in relation to this case is the assertion that the ‘confirmation procedures in the torture case were also brief’.36 The implication is that the three Japanese on trial were particularly badly treated in the reviewing process. They were sentenced on 6 April and submitted petitions the same day. The reviewing officer, Major W. Chambers (AALC) who was Acting Chief Legal Officer for 8MD, headquartered at Rabaul, went through the proceedings and concluded on 17 April that the findings and sentence could be confirmed.37 The Judge Advocate General (JAG), William B. Simpson, based in Canberra, considered the petitions and went through the proceedings, producing a seven-point summary and concluding that the findings and sentence should stand.38 This was dated 22 May. Then the Deputy Adjutant-General of the Directorate of Prisoners of War and Internees (DPW&I), Brigadier Walter J. Urqhuart, reviewed trial proceedings, petitions and the JAG’s advice on 7 June and did not disagree. Following all this advice, General Sturdee on 11 June confirmed the findings and sentences, which were then promulgated to the convicted men on 25 June. They were hanged at Rabaul the next morning. Can an eleven-week process of review be judged summary justice, as implied by the authors?39

This article has been discussed at length because it shows the need for those working on the Australian trials to avoid general assertions about the quality of military justice based on merely two cases and two trial transcripts. These two (p.333) cases were exceptional in attracting death sentences for crimes where the victims had not died40 and should be treated as exceptions. Also, trial transcripts need to be supplemented by the extensive contemporary accounts available to the researcher. Those who have conducted much wider research across the whole series of the Australian-run trials—Sissons, Carrel and Pappas41—are less hasty to condemn Australian military justice.

Sissons, who worked through all 300 cases, laid the main criticisms of the Australian-run trials at the feet of the War Crimes Act which federal parliament had passed in October 1945 with little or no debate.42 The War Crimes Act, Sissons argued, was discriminatory in several aspects, denying the Japanese suspect safeguards available to Australians. He and those who have built on his work perceive a number of flaws in the way the trials were set up and, to some extent, conducted. These relate to admissible evidence, joint trials, language difficulties and inconsistent sentencing.

(III) Admissible Evidence

Although the admissibility of affidavits and hearsay was a common feature of war crimes trials of the immediate post-war period,43 section 9 of the War Crimes Act has been a principal source of disquiet for those critiquing the Australian trials.44 Section 9(1) stated:

At any hearing before a military court the court may take into consideration any oral statement or any document appearing on the face of it to be authentic, provided the statement or document appears to the court to be of assistance in proving or disproving the charge, notwithstanding that the statement or document would not be admissible in evidence before a field general court martial.45

This ‘dispensation from the traditional rules of evidence’46 has been seen as a major disadvantage for the accused, whose defence officer was thereby deprived of the ‘very valuable right to confront the witness and test the evidence by cross-examination’.47 Not surprisingly, the prosecution made considerable use of (p.334) this liberal provision concerning admissible evidence and built their cases to a large extent upon statements and documents. Most cases in the Australian series of trials included as staples, the statements and affidavits collected from prisoners of war soon after they were recovered from liberated camps following the Japanese surrender.48 Rarely were former prisoners of the Japanese flown to the island locations of the trials to present their evidence in person. Among the few times victims appeared as witnesses were during those cases involving the Sandakan-Ranau death marches across Borneo. One of the six survivors—Warrant Officer William Sticpewich—appeared at three trials at Labuan.49 He and two other survivors—Private Keith Botterill and Corporal William Moxham—testified in person at the Rabaul trial of Captain Yamamoto Shoichi and ten others in May 1946.50 Other examples include the appearance of a Dutch prisoner of war, Staff Sergeant Fredrik Waaldyk, at the only trial held in Ambon, fortuitously available because he had remained on Ambon after his liberation from the notorious Tan Toey prisoner of war camp. He was married to a local inhabitant.51 Another instance occurred at the Rabaul trials when Jemadar Chint Singh, an Indian Army prisoner of the Japanese from the time of his capture at the fall of Singapore, returned to give evidence at the ‘Command Responsibility’ trials of 1947.52 These were the exceptions. In the context of post-war shortages of air transport and the debility of most prisoners of war in the first years after repatriation, insistence upon former prisoners attending the court in person would not have been feasible.

Even at the time there was some concern about this ‘dispensation’. An AALC officer, Captain Maxwell R. Ham, was asked to write a legal opinion on Australia’s right to try war criminals in general and on section 9 of the War Crimes Act in particular. Although Ham acknowledged using affidavits and statements in the absence of actual witnesses to be cross-examined was not consistent with the hearsay ruling of Australian domestic law, he pointed out that the defence could also use such materials.53 His opinion was sought in September 1946 when the trials had been underway for ten months with several Rabaul cases highlighting contentious issues. One in particular used hearsay. Both the defending officer, Captain (p.335) Lyston A. Chisholm, and the Judge-Advocate, Captain J.H. Watson, expressed concern about accepting this as evidence in relation to one of the accused but, on review in May 1946, the JAG had concluded the evidence sufficient to justify the finding of guilty. In an unusual turn, this case was reviewed once more by the JAG in October 1947 following a petition for retrial. However, he did not change his position.54 That this case should be revisited in several ways over an eighteen-month period seems indicative of an intention to ensure justice had been done and to negate suggestions of wholesale vengeance.

Another Australian legal officer, Lieutenant Colonel Benjamin J. Dunn, also pondered the question of admissible evidence. Within three months of his work at Morotai as reviewing officer and deputy Director of Legal Services there, Dunn published an article comparing the Australian legal basis for its trials with that of Britain and the US. In considering section 9, he conceded that ‘[t]‌hese provisions are so foreign to the rules of evidence applicable to a criminal trial by British courts that some lawyers may be critical of them’ and he assumed that ‘expediency was largely responsible for this modification’ but he pointed out that the onus was still upon the prosecution to prove the offence beyond reasonable doubt.55 That contemporary legal officers were considering this question at all suggests to me a determination to be seen as fair in the conduct of the trials.

(IV) Holding Group Trials

Another concern about the Australian trials expressed by contemporaries and later critics related to the practice of holding group trials as permitted by Regulation 12 accompanying the Act, which stated that:

Where there is evidence that a war crime has been the result of concerted action upon the part of a unit or group of men, then evidence given upon any charge relating to that crime against any member of such unit or group may be received as prima facie evidence of the responsibility of each member of that unit or group for that crime.56

Anyone charged as part of such a group was not permitted to apply for a separate trial.

Questions have been raised about the fairness of trying large numbers of suspects together. The examples cited always refer to the same two trials, one with ninety-one accused57 and another with forty-five accused.58 However, the average number of defendants tried in any one trial was three. There were only fourteen (p.336) Australian cases (or 4.7% of all cases) where ten or more suspects were prosecuted, twelve of them involving between ten and seventeen men.59 They were aberrations and selecting them as typical examples should be avoided.

When these cases reached the JAG of the time, both men complained of the scale of evidence they had to work through. J. Bowie Wilson, the JAG reviewing the Labuan trial of forty-five guards for ill-treatment of prisoners held at Kuching camp in British North Borneo, found the trial ‘unsatisfactory’. He complained that the ‘great number of the accused tried jointly made it extremely difficult to follow and to allocate the evidence to the individual’.60 His replacement as JAG, William B. Simpson, made ‘a most emphatic protest’ the following month when he got the documents for the Ambon-Morotai mass trial of ninety-one Japanese who were accused of ill-treatment of prisoners of war at Tan Toey camp in Ambon, where the death rate reached seventy-seven per cent.61 Simpson spent ‘six full days on this file’ and worried that he might have overlooked ‘through sheer inability to remember some cogent detail…something in favour of one or other accused’.62 Mass trials on this scale were never held again—an indication that the possibility of unfairness in this approach was recognized. These two had been early trials in the whole sequence and it seems the courts learnt their lesson about the difficulties involved in adopting such a procedure.

(V) Language Difficulties

In February 1946, the Japanese defence counsel in the mass trial of the Tan Toey guards, Somiya Shinji, raised the problem of language difficulties, arguing that the accused were ‘unable to defend themselves sufficiently’ because they could not express ‘in an exact and accurate manner what they wanted to state’. He also pointed out that their ‘way of thinking was different from that of other nations owing to the difference in thought and feeling between them’.63 This is a criticism of some substance.

Japanese lawyers for the defence appeared for the first time at Labuan, a week ahead of their use at Rabaul and nearly two months before their use in the Morotai trials.64 Colonel Yamada who, with Major Hayasaki, began appearing for the (p.337) defence at Labuan in December 1945 spoke excellent English and had completed his education in England. With Hayasaki, he had formerly been a member of the Japanese civil administration in Borneo.65 Even if Yamada had formal legal training and had some advantage in his linguistic abilities, he was not accustomed to Australian military courts. In the first trial at Labuan, ‘Captain Brereton took the unusual course for a prosecutor of going out of his way to assist Yamada by explaining law and court procedure and by allowing him latitude in his handling of witnesses’. Yamada returned the favour by often assisting the interpreters ‘explaining some fine shade of meaning of a Japanese phrase’.66

The language problems and cultural misunderstandings created by the co-existence of Anglophone president, court members, prosecution and sometime defence counsel, with defendants who might be not only Japanese but Korean or Taiwanese, calls for a study in itself. Added to this mixture were Japanese defence counsel operating in an unfamiliar legal system and witnesses, belonging not only to language groups previously mentioned, but sometimes including Malays, Indonesians, New Guinea indigenous and other islanders. The possibilities of mutual incomprehension were boundless. The longueurs of the translation and checking process, particularly in the humid conditions of some of the island locations, could send not only defendants to sleep but endangered the alertness of the court members. However, when General Imamura Hitoshi and the military policeman guarding him dozed off during his trial at Rabaul it was the president of the court, Major General J.S. Whitelaw who woke them up.67 During the trial of Lieutenant Asaoka and two others for executing captured Royal Australian Air Force crew, held at Morotai in December 1945, several nurses who had come to watch were at first ‘all keenly interested’ but they became distracted by the long delays while the interpreters made sure the witnesses and accused understood completely the counsels’ questions.68

The number of interpreters on offer from the Allied Translator and Interpreter Service (ATIS) even when supplemented by nisei serving in the US Forces was extremely limited and the standard of some of the rapidly trained Australian interpreters was variable.69 At the Rabaul trials, the principal interpretation was (p.338) done by Japanese interpreters ‘who all spoke excellent English’. The Australian linguists adopted the practice of monitoring their translations and interceding when they ‘felt that the Court or the accused or Counsel may have misunderstood an interpretation’.70 Even so, Lieutenant Joseph da Costa, one of the most fluent of the ATIS interpreters at Labuan, was concerned that suspects did not grasp what was going on. He had been educated in Japan, before his evacuation to Australia in 1941 on one of the last ships to leave. His spoken Japanese, acquired from his nanny, was ‘excellent’.71 He was, however, not familiar with specialized military terms or medical terms in Japanese; words that had to be used during the trials. Worried and conscientious, he adopted the practice of visiting the specific prisoner in the evening to go over the day’s proceedings to ensure that the suspect knew what had been said during the day. He did not want them to be unaware of the implications of the prosecuting counsel’s questions.72 In adopting such strategies, the ATIS interpreters attempted to remedy the translating deficiencies.

Occasionally, the courts could take advantage of the presence of a chance linguist, such as the official Dutch observer at the Darwin trials, Major J.M.L. Hosselet, Judge-Advocate in Australia for all Dutch troops. The crimes being tried at Darwin had taken place in Dutch Timor and among the witnesses were local villagers. A prisoner of war in Java for over three years, Hosselet was skilled in several languages, assisting the court at times during the trial.73 At Rabaul, in four cases involving the torture of German-speaking priests, nuns, Chinese and local civilians based at the Ramale Mission, a Chinese civilian, Frederick Chan, and two of the priests acted as interpreters when the victims gave their evidence.74

Despite these makeshift solutions, however, there were never enough competent interpreters to ensure all defendants and witnesses understood the implication of questions. Undoubtedly, the standard of linguistic proficiency in many cases did not match the requirements expected at war crimes trials today. However, it is anachronistic to judge the provisions made by current standards. In considering the question of fairness, the good intentions and the compensatory strategies adopted should be taken into account and wholesale condemnation of the trials, citing this factor, should be rejected.

(p.339) (VI) Inconsistency in sentencing

Those criticizing the Australian-run trials point to the inconsistency in sentencing as a major issue. There were no general guidelines to sentencing policy or tariffs.75 Earlier trials eventuated in harsher sentences than later trials. Death sentences were more frequently awarded. In the first month of the trials, sixty-two per cent of the accused were sentenced to death whereas the figure is only twenty per cent for the Manus trials in 1950–1, despite the Manus cases being selected on the basis they were likely to attract the death sentence.76

In one case, Lieutenant Katayama Hideo, tried in Morotai in March 1946 and sentenced to death for his role in executing one of four downed airmen, lived long enough to see that accused in later trials were awarded lesser sentences, including a case at Rabaul in which Captain Noto Kiyohisa had been found guilty of a similar crime—the murder of three prisoners of war—but had received only a twenty-year sentence.77 Katayama had been kept alive for over a year after one of his co-accused had been shot by firing squad as he was needed as a witness at a later case. He appeared at the Rabaul trial of Captain Kawasaki who was alleged to have conveyed the order to Katayama to execute the captured prisoners.78 In the meantime, as a fluent English speaker, he was found to be extremely useful translating documents for the Australians. Three weeks before the execution of Katayama, Major Herbert F. Dick, prosecuting officer in the Kawasaki case, submitted a detailed minute paper, arguing for mitigation of Katayama’s death sentence. One of his arguments was on the grounds of consistency of sentencing. Dick pointed out the discrepancy of awarding a twenty-year sentence to Noto, a more senior officer, for a similar crime.79 Despite this argument as well as petitions from all in the Rabaul compound and delaying tactics by the Australian Commandant in promulgating the warrant of execution—Brigadier Neylan hoped that new instructions would arrive from Melbourne—Katayama faced a firing squad on 23 October 1947.80

One reason for inconsistency in sentencing lies in the fact that trials were being held concurrently in the first few months at several different locations, (p.340) not allowing court members therefore to learn from each other. The first trials at Wewak, Morotai and Rabaul all begin in early December 1945 within days of each other. Each court had, of course, completely different personnel as president, court members and legal officers. In the temporary courts of Wewak, Morotai and Labuan, held in those particular locations to take advantage of the availability of Australian forces, there were lots of officers for the Convening Authority to press into service. In those temporary courts, there was a great turnover in personnel, militating against the build up of even personal consistency, much less a consistency for the court as a whole.81

In the later and longer-running courts at Rabaul, Singapore and Manus Island, individual presidents, court members and counsel built up much experience with which to measure the heinousness of one crime as against another. Lieutenant Colonel C.H. Smith was president or member of more than eighty Rabaul trials, including the ‘Command Responsibility’ cases. Lieutenant Colonel C.R.E. Jennings was president of fourteen of the twenty-three trials held in Singapore. Particular courts in the one location might develop some consistency, not only because they were run by overlapping personnel but also because they focused on a particular atrocity or set of related atrocities. This was the case in the Singapore trials, eighteen of which related to crimes committed against prisoners of war building the Burma-Thailand Railway. Although Captain A.D. Mackay sat as president in only one of the Singapore cases—a Burma-Thailand railway case heard on 10 and 12 March 194782—he had built up some expertise as the prosecuting officer in eight earlier cases, five of them concerning crimes committed on the railway. He then continued to prosecute cases in Hong Kong.

Other personnel were moved from one location to another such as Major Dick, Lieutenant Colonel John T. Brock and Major Henry J. Foster. The breadth of experience gained in different postings gave these individuals the opportunity to develop some perspective and may be a partial explanation as to why later sentences were more lenient than earlier ones for very similar crimes.

Inconsistency was also apparent in the tariffs awarded to senior officers as compared with the junior officers who had carried out their orders. At a trial in Rabaul in April 1946, two non-commissioned officers and seven Formosan civilians were sentenced to death for the execution of sick Chinese prisoners of war.83 Four were hanged on 17 July 1946 after the various stages of petition and review but the remaining five—all Formosans—were kept alive to give evidence at the trial of Major General Hirota Akira who had given the original order.84 Tried in March and April 1947, Hirota only got seven years’ imprisonment.85 Following (p.341) the intervention of the president of the court, Major General J.S. Whitelaw, and a recommendation from the JAG that such a long detention awaiting death should justify commutation, the five Formosans were reprieved—too late for the four men already hanged.

Of all five ‘command responsibility’ trials, only Lieutenant General Baba Masao received a death sentence.86 The burden of guilt for the war crimes committed tended to be placed on the shoulders of the privates and junior officers, not at the feet of those who passed the orders down the chain or were responsible for the policy that led to the atrocities.

(VII) The Review Process as a Safety Net

Although there are some well-known cases where either the finding or the sentencing tariff seems questionable, as in the Katayama case discussed earlier, many apparent injustices were caught by the review process. When Private Fukushima was found not guilty of murdering an Australian prisoner at Ranau in Borneo, a new court, with different personnel,87 was assembled the next day and he was re-tried on the same charge but as a civilian. The second court found him guilty. A blatant miscarriage of justice, however, was averted when the JAG pointed out that the principle of double jeopardy still applied to war crimes suspects. He advised Sturdee not to confirm the sentence.88

There are other examples where the review process provided a safety net. In the first cannibalism trial at Wewak, Lieutenant Tazaki admitted that he had mutilated and cannibalized the body of a dead Australian soldier when severely malnourished and suffering from malaria. Although his defending officer (Captain Jack Watson) argued that he was temporarily insane at the time, he was sentenced to death by hanging, the first death sentence to be awarded in the whole series of Australian-run trials.89 The convicted man did not petition so his case was not sent to the JAG but was sent to the Convening Officer who was advised by the Chief Legal Officer. Luckily for Tazaki, the reviewing officer, Brigadier Alan S. Lloyd, recommended commutation on several grounds, including the conditions facing Tazaki at that late stage of the war, and that recommendation was followed.90 Tazaki’s death sentence was commuted to five years with hard labour.91

(p.342) In cases where there were petitions, then the petitions and trial transcripts were forwarded by the Convening Officer to Army headquarters in Melbourne for review. The Director of Legal Services would examine court proceedings and advise whether the court was legally convened and properly constituted, the charges properly drawn and whether the sentence was valid and should be confirmed. Proceedings then went to the JAG. He would advise on whether petitions should be upheld or dismissed and whether there was any reason for not confirming the finding and the sentence. All this legal advice would be considered by the Confirming Authority, Acting Commander-in-Chief General Sturdee, before confirming or changing the finding or sentence.92

Indeed, the multiple steps of reviewing a case frequently overturned or mitigated a sentence. There were 214 death sentences passed by Australian courts, yet only 148 of these were confirmed.93 In February 1946, Sturdee commuted twenty death sentences handed out at two early Labuan trials in December 1945.94 For those trials that concluded between November 1945 and 31 January 1946, Sturdee commuted a total of twenty-eight of the death sentences to terms of imprisonment.95 In these cases he followed the advice of the then Judge Advocate General, J. Bowie Wilson. Wilson, for example, recommended that the twenty subordinates, tried for the Riam Road massacre, be given ten-year sentences on the grounds that ‘it is impossible to believe that these men were competent to judge between a legal and an illegal order’.96 Sergeant Sugino, however, who had given the order to bayonet and kill the prisoners, had his death sentence confirmed.97

These particular commutations caused a huge outcry. Returned servicemen and other organizations complained to Members of Parliament.98 When they, in turn, sought explanations from the Minister for the Army, Forde responded that this power had been delegated to Sturdee who was ‘not interfered with by the Government or any other authority in the impartial exercise of his discretion’. Forde argued that it was just the same as the government not interfering with decisions of the domestic courts.99

(p.343) Of the 643 guilty sentences awarded, 130, or twenty per cent, were mitigated, commuted or not confirmed.100 Of these, twenty-six fell into the latter category.101 The second Judge Advocate General, William B. Simpson, who replaced J. Bowie Wilson on 31 March 1946, had a considerably higher success rate in getting Sturdee to act on his recommendations for changes to findings or sentences than did his predecessor. Wilson had sixty-nine per cent of his recommendations for change ignored, compared to Simpson’s eighteen per cent. This difference has an obvious bearing on the perception that the sentencing in the earlier trials was harsher.102 Wilson opposed death sentences on junior men, whereas Simpson had less concern about that, arguing that massacres were so obviously wrong, the rank of the perpetrator was irrelevant.103

The Australian acquittal rate was also high compared to the other Allied war crimes trials. The Australian courts acquitted 29.31 per cent, surpassed only by China’s rate of 39.64 per cent. The overall Allied rate of acquittal was 18.9 per cent.104 This cannot be explained as a consequence of prosecuting ‘even minor offences’ as claimed by Okada.105 Crimes prosecuted included torture, rape, ill-treatment resulting in large-scale deaths, massacres, executions of captured prisoners, none of which could be described as minor.

(VIII) ‘Victor’s Justice’—Evidence from the Participants

While historians and lawyers continue to debate the question of ‘victor’s justice’, it is interesting to read what contemporaries thought. In December 1945, F.R. Sinclair, Secretary of the Department of the Army, asked his Minister how posterity might judge the Australian-run trials. He pointed out that ‘the motives which underlie our activities in bringing our former enemies to trial cannot be said to be altogether dis-interested or unbiased’.106 He was uneasy about the death sentences which gave the victors power to hang or shoot the vanquished in a system where all the stages of reviewing under the War Crimes Act were to be done by the military themselves.107 That he won the concession of having the JAG, a civilian adjudicator, brought into the process, was, Sissons pointed out, down to his ‘hard (p.344) fought battle’.108 Sir William Webb, whose advice was sought and was soon to be presiding over the IMTFE, was quite scathing about Sinclair’s doubts, writing to Sinclair’s Minister, Frank Forde:

Apparently Mr Sinclair thinks we owe the same duty to the Japanese guilty of war crimes as we do to our own soldiers guilty of breaches of military discipline. I respectfully suggest that this is a wholly erroneous view. It is certainly contrary to international law, which merely requires a fair trial for enemies charged with breaches of the rules of warfare.109

Webb argued that war criminals were like pirates or brigands and that different rules should be applied to them.

A surprising number of people involved in the trials—both Australian and Japanese—have left accounts. One of the most detailed was a diary kept by Captain Athol Moffitt, the prosecuting officer in some of the trials held at Labuan in January 1946. Written on the same evening or the day after the events described, the diary provides the uncensored views of a young officer, trying to prove that Captain Hoshijima, the commandant of Sandakan camp, was directly responsible for the deaths of over 1,000 prisoners who died of starvation during his time of command.110 It was, Moffitt wrote, ‘easy to prove cruelty’ as he had fifty statements detailing many incidents during the years that Hoshijima ran the prisoner of war camp. However, he expected the Japanese defence to argue that the Allied bombing campaign had reduced rations. He was sure that this was not the true reason ‘but the evidence we have that H[oshijima] was a party to this starvation is not yet watertight’. He was investing much hope in Sticpewich, one of the six survivors from the Sandakan death marches, who was daily expected at Labuan as a witness. In the meantime, he thought the Japanese might give a lead. He wrote, ‘I will ferret them out and see what I can get’.111 The next day, he questioned the Japanese quartermaster, who, to Moffitt’s delight, connected the cutting of the rice ration to an order from Hoshijima. It was the next sentence in the diary which attracted my attention: ‘His evidence is so important that I had it read over to him 3 times and had him say it was quite correct.’112 This was the central piece of evidence that convicted Hoshijima and brought him to the scaffold two months later, but the sentence might also indicate an effort to be fair. Was Moffitt, by asking for repetition, warning—‘[d]‌o you realise what you have just admitted? Do you really mean what you have just said?’ Obviously, much more work is needed on this text, but the point is that the diary provides another type of source—apart from trial transcripts and government files—for investigating the fairness of the trials.

Several of the Japanese convicted published accounts after repatriation to Japan in the 1950s, including memoirs by General Imamura Hitoshi, Commander of (p.345) the Japanese forces in New Guinea, New Britain and other islands,113 tried at one of the ‘Command Responsibility’ trials in 1947. He objected to the acceptance of hearsay contrary to the usual rules of evidence in British and Australian law. Lieutenant Katayama Hideo, executed in October 1947, smuggled out volumes of a diary which were subsequently published in Japan after his death.114 Another Japanese diary was kept by Captain Kokaze Ichitano, who was posted as a defence officer to the war crimes court at Rabaul in January 1946.115 These and other Japanese sources deserve a separate study.

One contemporary account from Somiya Shinji, the Japanese defence lawyer at the mass trial of ninety-one Japanese suspects, was published in 1946 before Judge Pal’s judgment on the fairness of the IMTFE was made known and gained such influence. Somiya’s account was subsequently translated.116 Somiya headed the defence of Captain Shirozu Wadami, commander of the 20th Garrison Unit, Japanese Navy, and the ninety others responsible for administering the Tan Toey prisoner of war camp. This trial, discussed above, began at Ambon and was completed at Morotai.117

Somiya, who was later Defence Counsel at one of the IMTFE trials, wrote an account of the trial which reveals, directly and indirectly, how different were the legal systems of the two countries. Among the differences that Somiya noted with approval was the way the President and court members acted as ‘umpires of the games’, that the defence had equal rights with prosecution, that the prosecution was required to assume the burden of proof and that the trials were open to the public.118 He also commented upon the way witnesses were called to court ‘to be questioned whenever necessary’ and that the president and court members could make ‘inquiries to the witness’ but, unlike the Japanese system, that questioning was ‘only subsidiary’ to the examinations by prosecuting and defence counsels.119 Somiya also noted that ‘defending officers were allowed to communicate with defendants freely’ which was a right not granted in Japan.120 He was able to visit his clients every night.

Somiya’s account also reveals the efforts made to grant the nintety-one suspects a fair trial. He was very impressed during the Ambon section of the trial when the local witnesses were tested in their identification evidence. The suspects wore different clothing and stood in a different order at repeated identification parades (p.346) ‘for fear but any misidentification on the part of the witnesses should happen’.121 Somiya was also impressed with what happened when the Japanese Medical Officer of the Tan Toey Camp seemed likely to be trapped into self-incrimination. The Judge-Advocate, Major J.D. Bell, asked the prosecutor to stop, citing the right to silence. The Court adjourned and then resumed. Several times over the next ten days, the Judge-Advocate repeated this advice to witnesses ‘whenever the prosecution’s inquiries became fierce and severe and might reduce the witnesses to testify against themselves’.122 The Judge-Advocate also came to Somiya’s assistance with advice on how to conduct the defence. Rather than the long and detailed defence address Somiya had prepared, he recommended calling witnesses as required and cross-examining the prosecution witnesses.123 In such manner and to some extent was the unequal contest between those familiar with the Australian system and those who were not remedied.124

When Somiya heard the verdicts and sentences, he wrote that he felt ‘the trial very fair’.125 He had expected more convictions—forty-four were found not guilty—because the case, connected with the death of over 400 Allied prisoners, had attracted such publicity. Only four of those found guilty received the death sentence.

Although Somiya had acquired some experience of procedure in an Australian military court, he still felt uncomfortable coping with an unfamiliar and culturally different system. In his next case at Morotai, he asked for and received the assistance of an Australian defence counsel, one of the practical ways being developed to compensate for the Japanese disadvantage.126 Somiya described Captain D.M. Campbell in action in a way that not only reveals his admiration but also is a very good example of what happened in other courts and locations where Australian defence counsel fought as hard for their client as they would have in pre-war civilian law courts.127 Somiya wrote:

From the opening of the trial, Capt Campbell did all in his power to defend the accused; he raised objections whenever the prosecution’s charges or claims were considered to infringe the principle of court proceedings or extend too far; he took objections against the prosecution’s arguments, documentary evidence or witness’ evidences and even against the President’s interrogations.128

(p.347) There are many more passages which could be quoted but this has given some of the flavour. It is but one of many contemporary documents from participants, both Australian and Japanese. These should be analysed alongside the trial transcripts and official files when exploring the question of ‘victor’s justice’ in relation to the Australian-run trials in order to get a balanced overview.

(VIII) Conclusion

Contemporaries were aware of how the trials could be criticized. As we have seen, one senior public servant, F.R. Sinclair, expressed his concerns as early as December 1945. In September 1946, when at least half of the Australian-run trials had been completed, a legal opinion was sought about the right of Australia to conduct trials in general and the acceptance of hearsay.129 That questions were being raised even at that late stage in the sequence of trials, demonstrates the efforts being made to achieve just outcomes.

Although it is possible to expose the weaknesses of specific war crimes trials run by the Australians in the aftermath of the Second World War and to find examples of problems relating to admissible evidence, joint trials, language difficulties and sentencing inconsistency, researchers need to take care before leaping to conclusions. The tendency to focus on a small number of cases as if they were typical (as happened in the Creed article) can be misleading. It is unfair to the personnel running the courts. The more work that is done on the whole sequence of the three hundred trials, the more evidence emerges of conscientious efforts to make up for deficiencies in the provisions of the War Crimes Act. Vengeance, an emotion associated with ‘victor’s justice’, was much less evident in participants’ papers and in official investigation and correspondence files associated with the trials than might have been anticipated.

To tread a fine line between vengeance and justice was difficult. Ron Mendelsohn, a public servant, in a comment on a cabinet submission in 1955, admitted the problem. ‘But what were we to do?’ he wrote. ‘To allow these men to go unpunished would have done violence to our own feelings…we wanted to ram home the idea that to use war as an instrument of policy is evil, but that if war is to be used there are conventions of humanity to be observed.’130

Notes:

(1) Quoted in Yuma Totani, The Tokyo War Crimes Trials: The Pursuit of Justice in the Wake of World War II (Cambridge, MA and London: Harvard University Press, 2008), 226. ‘B’ class war criminals were those accused of conventional war crimes, ‘C’ class were accused of crimes against humanity. In practice, ‘B’ and ‘C’ category crimes overlapped so that these ‘minor’ trials are referred to collectively. ‘A’ class were those tried at the International Military Tribunal of the Far East (IMTFE) for crimes against peace.

(2) Trials were held at Morotai, Labuan, Wewak, Rabaul, Darwin, Singapore, Hong Kong and Manus. One trial began at Ambon but it was completed at Morotai.

(3) The British military courts required at least one of their court members to have legal qualifications: Philip R Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951 (Austin, TX: University of Texas Press, 1979), 98.

(4) In this respect, the Australian practice also differed from the British, Michael Carrel, Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints, PhD Thesis, (The University of Melbourne, 2005), 83.

(5) The papers from the November 2008 conference at Melbourne Law School have been published. See Yuki Tanaka, Tim McCormack and Gerry Simpson (eds), Beyond Victor’s Justice? The Tokyo War Crimes Trials Revisited (Boston, MA and Leiden: Brill Academic Publishers, 2011).

(6) Totani, above n 1, 224–45.

(7) Richard Minear, Victors’ Justice: The Tokyo War Crimes Trials (Princeton, NJ: Princeton University Press, 1971). This was reprinted in 2001.

(8) Leo T.S. Ching, Becoming ‘Japanese’: Colonial Taiwan and the Politics of Identity Formation (Berkeley, CA: University of California Press, 2001), 46.

(9) Totani, above n 1, 226.

(10) Totani, above n 1, 227.

(11) Trials of Japanese ‘B’ and ‘C’ class suspects were held by America, Britain, Australia, Netherlands, France, Philippines and China. See the comparative statistics in Piccigallo, above n 3, 264. These should be treated with caution as ongoing research updates or clarifies some figures.

(12) For the British trials, see Hirofumi Hayashi, ‘British War Crimes Trials of Japanese,’ Nature-People-Society: Science and the Humanities, 31 (2001); R. John Pritchard, ‘The Gift of Clemency following British War Crimes Trials in the Far East, 1946–1948’, Criminal Law Forum, 7 (1996), 15.

(13) Under the leadership of Professor Tim McCormack, Asia Pacific Centre for Military Law, Melbourne Law School, the study is entitled Australia’s Post-World War Crimes Trials: A Systematic and Comprehensive Law Reports Series consisting of 300 Law Reports (prepared by Dr Narrelle Morris) and eight historical essays by this author providing context for each location of the Australian trials. It is anticipated that publication will begin 2015.

(14) Michael Carrel, ‘Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints’ in David A Blumenthal and Timothy L.H. McCormack (eds), The Legacy of Nuremberg: Civilising Influence or Institutionalised Vengeance? (Boston, MA and Leiden: Martinus Nijhoff Publishers, 2008), 239; Gavan McCormack, ‘Apportioning the Blame: Australian Trials for Railway Crimes’ in Gavan McCormack and Hank Nelson (eds), Burma/Thailand Railway: Memory and History (Crows Nest, NSW: Allen & Unwin, 1993), 85.

(15) David Creed, Moira Rayner and Sue Rickard, ‘It Will Not be Bound by the Ordinary Rules of Evidence,’ Journal of the Australian War Memorial, 27 (1995), 47; Rob Gill, ‘The Aftermath of War (Japanese soldiers on trial in Darwin),’ Northern Perspective, 18 (1995), 98; Emmi Okada, ‘The Australian Trials of Class B and C Japanese War Crimes Suspects, 1945–51’, Australian International Law Journal, (2009), 47.

(16) Caroline Pappas, Law and Politics: Australia’s War Crimes Trials in the Pacific, 1943–1961, PhD thesis (University of New South Wales, 1998); Carrel, above n 4.

(17) David Sissons, ‘War Crimes Trials’, in Australian Encyclopaedia (Sydney, NSW: Australian Geographic, 5th edn, 1988), 2980. This edition is to be preferred to later editions which removed his criticisms of the trials.

(18) David Sissons (1997), ‘Sources on Australian Investigations into Japanese War Crimes in the Pacific,’ Journal of the Australian War Memorial [online], <http://www.awm.gov.au/journal/j30/sissons.asp> (accessed 24 February 2013).

(19) David Sissons (2006), The Australian War Crimes Trials and Investigations (1942–51), <http://socrates.berkeley.edu/~warcrimes/documents/PT.htm> (accessed 24 February 2013).

(20) See the finding aid to his papers, held at the National Library of Australia (NLA) <http://nla.gov.au/nla.ms-ms3092> (accessed 24 February 2013).

(21) Creed, above n 15, 47. The quotation came from a speech by the Minister for Defence, John Beasley, when explaining the provisions of the War Crimes Act, Commonwealth, Parliamentary Debates, House of Representatives, 4 October 1945, 6511.

(22) The cases were held on 12–13 December 1945 and 6 April 1946. All the Australian-run trials are digitized and may be found through the online catalogue of the National Archives of Australia. For the trial transcripts see Trial of Sergeant Yaki Yoshio, National Archives of Australia (NAA) Canberra, A471, 80747 and Trial of Warrant Officer Matsumoto Tsugiji and two others, A471, 80782 respectively.

(23) Creed, above n 15, 47, 53.

(24) Creed, above n 15, 53.

(25) Creed, above n 15, 47.

(26) ‘War Trials at Rabaul’, Sydney Morning Herald (Sydney), 13 December 1945, 3.

(27) Creed, above n 15, 47, 49–50.

(28) For example, after a trial held at Wewak two weeks earlier, a Japanese lieutenant sentenced to death for cannibalism had also chosen not to petition. See below n 95.

(29) One of the Japanese defence counsel at Rabaul noted this in a privately published Japanese book on Rabauru (Rabaul) cited in Sissons, above n 19.

(30) Creed, above n 15, 47, 49.

(31) See discussion below n 107.

(32) Torture was defined as a war crime and the death sentence was among the punishments permitted under the War Crimes Act 1945 (Cth).

(33) ‘More Verdicts Follow Jap Hangings’, Sun (Sydney), 7 April 1946.

(34) It was actually ten minutes, NAA Canberra, A471, 80782, 34.

(35) Moyes had presided over nine earlier trials in Rabaul and Ogle had been a court member for six earlier trials. Admittedly, the other two members of the court were having their first experience.

(36) Creed, above n 15, 47, 50.

(37) See his one page review in the trial transcript, NAA Canberra, A471, 80782, 13.

(38) NAA Canberra, A471, 80782, 5–6.

(39) It is possible Creed et al meant the one day interval between promulgation and hanging was brief. The author is preparing an essay on death sentences which discusses the disciplinary reasons for executing a war criminal the morning after promulgation.

(40) Sissons, above n 17, 2980, 2981.

(41) See the work by Carrel, above n 4; Pappas, above n 16; Sissons, above n 19.

(42) Commonwealth, Parliamentary Debates, Senate, 4 October 1945, 6463; Commonwealth, Parliamentary Debates, House of Representatives, 4 October 1945, 6510.

(43) See, for example, the practice relating to evidence in the Nuremberg military tribunals and in the British war crimes trials in Hong Kong, discussed in Kevin J.Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford: Oxford University Press, 2012), Chapter 6 and Suzannah Linton, ‘Rediscovering the War Crimes Trials in Hong Kong, 1946–48,’ Melbourne Journal of International Law, 13 (2012), 1, 25, respectively.

(44) There are substantial sections in the two theses. See Pappas, above n 16, 95–99 and Carrel, above n 4, 94–5, 172–80. See also a summary by Okada, above n 15, 47, 56–9. This article appears to be a précis of the arguments and evidence produced by Sissons, Pappas and, in particular, by Carrel.

(45) War Crimes Act 1945 (Cth), section 9.1.

(46) Carrel, above n 4, 94.

(47) Sissons, above n 17, 2980, 2980. However, the two Chinese female victims in the cases discussed by Creed et al were present and were cross-examined. This makes the title of their article quite misleading: Creed, above n 15, 47.

(48) Even so, Major D.E. Cleverly, writing his report on the war crimes work of the DPW&I, recommended special training for those selected for questioning war crimes victims and witnesses ‘as in many cases affidavits received by the Directorate were not suitable for use by the prosecution and had to be returned for correction’: NAA Canberra, A7711, Vol 1, 419.

(49) Trial of Staff Sergeant Sugino Tsuruo, A471, 80716; Trial of Captain Hoshijima Susumu, A471, 80777; Trial of Civilian Hayashi Yoshinori and two others, A471, 80779.

(50) Trial transcript, NAA Canberra, A471, 81029.

(51) Memo: Sergeant Waaldyk NEI Army—Retention in Ambon, 20 October 1945, NAA Melbourne, MP742/1, 336/1/395. According to a Progress Report, 19 October 1945, in the same file, sorting out those to be accused was delayed by Waaldyk’s weakness but they waited for he was the ‘most important informant’. See his evidence, Trial of Captain Shirozu Wadami and 90 others, NAA Canberra, A471, 81709.

(52) For example, he testified at the trial of Lieutenant General Adachi Hatazo in April 1947, NAA Canberra, A 471, 81652. He had stayed behind for some months after liberation to identify suspects and had thereby survived a plane crash which killed the ten Indian prisoners who had been recovered with him. He had returned to India before coming back to Rabaul in 1947.

(53) Minute paper, Dept of Army, written by Captain Ham for the Director of Legal Services, 9 September 1946, NAA Melbourne, MP742/1, 336/1/980.

(54) See transcript, Trial of 2nd Lieutenant Tasaka Mitsuo and two others, NAA Canberra, A471, 80978.

(55) Benjamin J Dunn, ‘Trial of War Criminals,’ Australian Law Journal, 19 (1946), 359, 361. He had been Reviewing Officer for eight of the early trials held at Morotai in December 1945.

(56) Appendix D: Regulations for the Trial of War Criminals. Statutory Rules 1945, Carrel, above n 4, 271–3. For discussions of the legal issues, see Pappas, above n 16, 98, Carrel, above n 4, 167–70.

(57) Trial of Captain Shirozu Wadami and 90 others, NAA Canberra, A471, 81709.

(58) Trial of Staff Sergeant Matsutaka and 44 others, NAA Canberra, A471, 80754.

(59) Carrel, above n 4, 167.

(60) J. Bowie Wilson to DPW&I (for Convening Authority), 4 March 1946, Minute Paper, Trial of Japanese War Criminals, NAA Canberra, A471, 80754 PART 1, 6. This was one of Wilson’s last cases and one can speculate that it played a part in his replacement by Simpson. Wilson retired on 31 March 1946.

(61) The death rate was nearly twice that on the Burma-Thailand railway ‘at its worst’. See Joan Beaumont, ‘Gull Force Comes Home: The Aftermath of Captivity,’ Journal of the Australian War Memorial, 14 (1989), 43. For an extensive study of Tan Toey, see Joan Beaumont, Gull Force: Survival and Leadership in Captivity, 1941–1945 (Crows Nest, NSW: Allen & Unwin, 1988).

(62) W.B. Simpson to AMF HQ (for DPW&I), 24 April 1946, NAA Canberra, A471, 81709 PART 1, 9.

(63) This was part of his closing address, NAA A471, 81709 PART 1, 464.

(64) Colonel Yamada and Major Hayasaki were the first defending officers in early trials at Labuan before being augmented by other Japanese counsel in later trials. The Rabaul trials had Japanese defence counsel from the first trial there on 12–13 December, eight days after their first use at Labuan. Japanese defence counsel did not appear at Wewak and were not used at Ambon and Morotai until late January 1946. They were first used there in the mass trial of ninety-one accused.

(65) Eric Thornton, ‘Massacre of 44 POW’s [sic]: Jap Sergeant Faces Trial’, Argus (Melbourne), 4 December 1945, 16.

(66) Eric Thornton, ‘Jap Lawyer Invites Prosecutor to be his Guest in Japan’, Argus (Melbourne), 7 December 1945, 20. The invitation to visit was extended by Yamada to Brereton.

(67) Ishimura Kei, Beyond the ‘Judgement of Civilisation’: The Intellectual Legacy of the Japanese War Crimes Trials, 1946–1949 (Tokyo: International House of Japan, 2003), translated by Steven J. Ericson, 311. A strategy to keep alert, adopted by Major Kenneth J. Prowse, president at three of the Labuan trials, was to take notes in a ledger. The ledger is now in the National Library of Australia: NLA MS 5722, Prowse Papers, Folder 1.

(68) ‘Their interest begins to wain [sic]’, Australian telegram from ABC reporter, Talbot Sydney Duckmanton, 5 December 1945, Australian War Memorial (AWM), PR00238, Duckmanton Papers. For the trial, see Trial of Lieutenant Asaoka Toshi and two others, NAA Canberra, A471, 80717.

(69) Colin Funch, Linguists in Uniform: The Japanese Experience (Melbourne: Japanese Studies Centre, Monash University, 2003) provides a full account of ATIS.

(70) Letter from Mr John Ferris to the author, 26 January 2010. This was confirmed in my interview with Mr John Hook (Melbourne, 11 March 2010). Mr Ferris and Mr Hook had been interpreters with ATIS at Rabaul.

(71) Arthur Page, Between Victor and Vanquished: An Australian Interrogator in the War Against Japan (Loftus, NSW: Australian Military History Publications, 2008), 475. Page (born Papppadopoulos) knew da Costa in Japan when they were schoolboys.

(72) Interview with Colonel da Costa (Melbourne, 12 March 2010).

(73) He was officially credited as interpreter in the second Darwin trial, NAA Canberra, A471, 81630.

(74) Father Hohne interpreted at two Rabaul trials, NAA Canberra A471, 80745 and NAA Canberra, A471, 80744; Father Zwinge and Mr Chan interpreted at two more, NAA Canberra, A471, 80743 and NAA Canberra, A471, 80741.

(75) General Douglas MacArthur, Supreme Commander for the Allied Powers, had issued directions for trials held in his area of responsibility: Pappas, above n 16, 283.

(76) The figures are given by Pappas, above n 16, 153. For the policy on selecting the final cases for trial at Manus, see NAA Melbourne, MP742/1, 336/1/2076. For the division of cases ready for trial into categories to see which ones should go forward to trial, see NAA Canberra, A4940, C2.

(77) Trial of Naval Captain Noto Kiyohisa, NAA Canberra, A471, 81210, held on 9–10 July 1947.

(78) Trial of Captain Kawasaki Matsuhei, NAA Canberra, A471, 81067. One of the last cases tried at Rabaul, it was heard in late June and early July 1947. Kawasaki was found not guilty in a case of some complexity. The chain of command was difficult to establish but it became clear that a far more senior officer, Baron Takasaki, had some questions to answer.

(79) Minute paper by Major H F. Dick for DPW&I, 1 October 1947, NAA Melbourne, MP742/1, 336/1/1737.

(80) This is a very well documented case with several Japanese and Australian contemporary sources providing much detail about his last days. The Katayama case also featured in Blood Oath, a film which should be treated with great caution, Hank Nelson, ‘“Blood Oath”: A Reel History’, Australian Historical Studies, 24 (1991), 429.

(81) See Pappas, above n 16, 280–1 for a discussion of the lack of information given to courts about JAG’s opinions where the findings had been overturned.

(82) The trial of Korean Guard Hayashi Eishun, A471, 81695 is critiqued by McCormack, above n 14, 85, 90–1.

(83) Trial of Sergeant Matsushima and eight others, NAA Canberra, A471, 80915.

(84) David Sissons, ‘The Australian War Crimes Trials’, typescript draft, 16 August 1985, for Sydney Morning Herald (Sydney), 10 (in the possession of the author).

(85) Trial of Major General Hirota, NAA Canberra, A471, 81653. This is one of the ‘Command Responsibility’ trials.

(86) Trial of General Baba, NAA Canberra, A471, 81631.

(87) With the exception of the Japanese defence counsel.

(88) Trial of Private Fukushima Masao, NAA Canberra, A471, 81060, held 28–29 May 1946, and Trial of Civilian Fukushima Masao, NAA Canberra, A471, 81218, held 30–31 May 1946.

(89) There is silent film footage of his being questioned and of his trial in the collection of the Australian War Memorial, See ‘Interrogation of Suspected War Criminals’, F07377 and ‘War Crimes Trial of Lieutenant Tazaki’, F07379. Both films reveal his emaciated state even after several months following the cannibalism committed in July 1945.

(90) Trial of Lieutenant Tazaki Takehiro, NAA Canberra, A471, 80713.

(91) The commutation was dated 19 December 1945. To what extent the commutation had been influenced by a campaign (alleging bias) by war correspondent, Noel Ottaway, and his editor, John Goodge of the Sydney Sun, whose letters found their way into many ministers’ files, is hard to ascertain.

(92) Carrel above n 4, 95–8.

(93) Table C, Carrel above n 4, 101.

(94) Trial of Sergeant Miura and fourteen others, NAA Canberra, A471, 81214 and Trial of Guard Hirota and eight others, NAA Canberra, A471, 81204. These concerned the Riam Road massacre of prisoners of war in Borneo.

(95) They comprised commutations of death sentences given at Labuan (twenty-two), Rabaul (three), Morotai (two), Wewak (one). See Carrel, above n 4, 126.

(96) See Carrel, above n 4, 162.

(97) Trial of Sergeant Major Sugino, NAA Canberra, A471, 80716.

(98) Those organizations sending protest resolutions passed at meetings and found in Department of the Army files included the Australian Labour Party Paddington Branch (15 March 1946), NAA Melbourne, MP742/1, 336/1/981, Ipswich branch, Returned Sailor’s Soldier’s Airmen’s Imperial League RSSAILA (27 February 1946), Australian Prisoners of War Relatives’ Association (4 March 1946) and Australian Legion of Ex-Servicemen and Women (1 April 1946), NAA Melbourne, MP742/1, 336/1/555.

(99) Francis Forde’s reply to P.J. Roche, Secretary, Ipswich branch, RSSAILA, 29 March 1946, NAA Melbourne, MP742/1, 336/1/555.

(100) Pappas, above n 16, 132.

(101) They comprised cases at Morotai (one), Rabaul (twenty-two), Singapore (one), Hong Kong (one) and Manus (one), See Sissons, above n 18, Table A, n 9.

(102) Pappas, above n 16, 150.

(103) Pappas, above n 16, 146–7.

(104) See Table E, Carrel, above n 4, 102.

(105) Okada, above n 15, 47, 50. She also claimed that the acquittal rate at Manus stemmed from the choice of crimes being prosecuted, but see n 75. Manus cases were chosen because they involved murders and other serious crimes and so were likely to attract the death sentence.

(106) Sinclair to the Minister, Dept of Army, 6 December 1945, NAA Melbourne, MP742/1, 336/1/980.

(107) Sturdee, the Commander in Chief of the Army, was given sole authority to confirm the death sentence. This differed from the Field Courts Martial practice of confirmation resting with the Governor-General in Council. For the procedure for confirmation of death sentences, see Minute Paper, Trials of War Criminals, December 1945, NAA Melbourne, MP742/1, 336/1/382.

(108) Sissons, above n 86, 6. The decision to appoint a civilian as JAG arose after World War I out of a desire to give the position some independence from the Army, Report, ‘Draft Historical Notes JAG’s Department and Australian Army Legal Division’, cited in Pappas, above n 16, 145.

(109) Webb to Forde, 8 Jan 1946, NAA Melbourne, MP742/1, 336/1/980.

(110) Trial of Captain Hoshijima, NAA Canberra, A471, 80777 PART 1 and 80777 PART 2.

(111) Diary entry for 2 January 1946, Diary of Athol Moffitt, AWM PR01378, Moffitt Papers, 137–8.

(112) Diary entry for 3 January 1946, Diary of Athol Moffitt, AWM PR01378, Moffitt Papers, 138.

(113) Imamura was tried at Rabaul, and sentenced to ten years. Imamura’s memoirs, published in the early 1960s, and composed while imprisoned in Java where the Dutch also tried him, are discussed in Ushimura above n 67.

(114) See sections of Katayama Hideo, Ai to Shi to Eien to (Tokyo: Gendai Bungei Shuppan, 1958) translated by David Sissons in NLA MS 3092, Sissons Papers, Boxes 22, 23, 32, 33.

(115) See sections of Kokaze Ichitano, ‘Shusen Zengo to Sempai Bengono Kaiso’, 160–82, translated by David Sissons in NLA MS 3092, Sissons Papers, Box 32.

(116) See Somiya Shinji, ‘The Account of Legal Proceedings of Court for War Criminal Suspects’ (1946). This typescript translation by Kazuo Yoshioka was commissioned by John Williams, the prosecuting counsel in the trial which Somiya describes, Mitchell Library, Sydney, MLMSS 2207, Williams Papers.

(117) See above n 57.

(118) Somiya, above n 116. These novelties were also noted with approval in relation to the Tokyo Trials in 1948 by Prof. Uchida Rikizo from University of Tokyo, Totani, above n 1, 207.

(119) Somiya, above n 116, 6.

(120) Somiya, above n 116, 10.

(121) Somiya, above n 116, 7.

(122) Somiya, above n 116, 7.

(123) Somiya, above n 116, 16.

(124) See also the opinion of the Judge-Advocate at that trial—Captain J. Douglas Bell—in his letter to John Williams, 7 April 1971. He felt proud that, without help from headquarters, they were able to conduct a trial that was ‘not a hollow farce…convicting everybody out of hand’ and that even the Japanese thought it conducted ‘with restraint, dignity, fairness and justice’. Copy in possession of the author.

(125) Somiya, above n 116, 34.

(126) Eventually the practice settled down to a pattern where the Japanese legal officer prepared the brief while the AALC officer put the actual case in court as instructed by the Japanese, Pappas, above n 16, 139.

(127) Other notable examples are Captain William Cole at Darwin and Captain Lyston Chisholm at Rabaul. Interpreter John Hook was very impressed by the diligence of the latter, Interview with John Hook (Melbourne, 11 March 2010).

(128) Somiya, above n 116, 36. This type of help was not an aberration. See above n 66 outlining how Colonel Yamada, the defence lawyer, was assisted through some of the unfamiliar procedures by Captain Brereton, the prosecutor.

(129) See above n 53.

(130) Ron Mendelsohn, Comments on Cabinet Submission No 316: Japanese War Criminals, 12 April 1955, NAA Canberra, A4940, C1233, quoted in Pappas above n 16, 284.